HHS-CMS Proposed Rule on Fire Sprinklers
Suggests Pre-emption of Local Authority
On October 27, the Centers for Medicare and Medicaid Services
of the Department of Health and Human Services (HHS-CMS) published
a proposed rule addressing automatic sprinkler systems in
long-term health care facilities. The proposed rule would
create a new federally stipulated requirement for nursing
homes to be fully sprinklered in order to receive compensation
for treating Medicare and Medicaid beneficiaries. In the background
section of the proposal, HHS estimates that of 18,005 facilities
across the country, 14,317 (76 percent) are fully sprinklered,
2,687 (15 percent) are partially sprinklered, 782 (4 percent)
are not presently sprinklered, and the condition of 5 percent
is unknown. Notably, the rulemaking criticizes national "variability"
in local fire safety requirements and requests comment on
the "necessity, advantages, and disadvantages of deferring
to State and local jurisdictions."
The 1964 law creating the Medicare program instructed HHS
to apply the then simple requirements of the Life Safety Code
(LSC) for minimums in fire-safety and egress. In 1964 this
was meant to ensure a minimum level of safety especially where
no uniform state code was in force. The LSC has since, however,
become a much more complex code with extensive regulatory
conflict with ICC's comprehensively applied building safety
and fire prevention codes. Although the same 1964 law authorizes
HHS to waive application of the LSC where a state fire and
safety code is found to provide adequate protection, HHS has
not yet agreed to recognize a state law as meeting this minimum
requirement. At present the ICC has a request for recognition
by HHS of the adequacy of the I-Codes, the State of Michigan
has an application that has been pending review for 36 months,
and the State of Alaska has recently initiated a similar new
request.
In presenting the proposed rule HHS seeks to expedite the
retroactive sprinkler requirement solely through federal authority
without working with state and local authorities and without
undertaking a full regulatory review of the 2006 edition of
the LSC. In arguing to pre-empt local authority on retroactive
sprinklering the proposal suggests that "…maintaining
the existing fire safety requirements would have left decisions
regarding more stringent fire safety measures in the hands
of State and local governments."
In the proposal HHS does recognizes that modern building
and fire safety requirements have dramatically reduced incidences
of fire fatalities at long-term care facilities, but does
not recognize the administration of comprehensive state and
local building and fire codes in achieving that progress.
Though proposing a several-year phase-in period for the proposed
rule, HHS expressly rejects working together with or depending
upon state and local authorities in advancing a national effort
to accomplish this objective.
The deadline for submission of comments on the HHS proposed
rule is December 26. Staff is preparing draft comments for
submission and is alerting state and local jurisdictions and
partners to the rulemaking and its potential for preemptive
effect. ICC's comments, supporting the efficacy of automatic
fire sprinklers in long-term care occupancies, will also observe
that the manner of this proposed rule may also unnecessarily
and unproductively interdict and complicate state and local
authority in comprehensive building code administration.
