United States: All Nursing Homes Must Be Fully Sprinklered By August 13, 2013

Nursing homes that participate in Medicare or Medicaid have had five years to achieve full sprinkler compliance since CMS published the final rule on August 13, 2008 entitled Fire Safety Requirements for Long Term Care Facilities, Automatic Sprinkler Systems.[i] At present there are no extensions. Any facility that is not fully sprinklered at the time of its routine recertification survey will be cited with a life-safety code deficiency (tag K056). Such facilities will be required to submit a plan of correction to come into compliance within three months. After three months, facilities that are still out of compliance will be subject to a denial of payment for new admissions (DPNA), and at the end of six months, non-compliant facilities will be subject to termination from the Medicare program.   

Although CMS proposed a rule on February 7, 2013 that would permit time-limited extensions of the due date for facilities that were replacing a building or undergoing major modifications, no final rule for extensions has yet been promulgated. In reviewing plans of correction, however, CMS has said it will take note of facilities that are undergoing major building or renovation projects. CMS does not at this time have the statutory authority to grant extensions, but they are working on the issue.   

The scope and severity of deficiency citations for sprinkler deficiencies are usually at a minimum level of D, E or F, "potential for harm." The complete absence of a sprinkler system would always be cited at the F level or higher. Citation at the "harm" level of G, H or I is rare unless there has been a recent fire or other sprinkler issue causing actual harm. Selection between levels D, E and F will be based on how many facility residents face potential harm as a result of the deficiency.   

If a facility is fully sprinklered but there are minor problems with the functioning of the system, such as improper coverage by some of the sprinkler heads, a deficiency at the level of D, E or F would be cited but K056 would not need to be cited. Time-limited waivers of less than six months may be granted to correct such systems. If there are major problems with a fully sprinklered facility, such as missing multiple sprinkler heads in rooms that were subdivided, or missing sprinklers in outside overhangs or on a loading dock, the facility would be considered partially sprinklered and K056 would apply. If a facility is partially sprinklered, for example in new wings but not in older parts of the building, or only in hazardous areas, K056 also applies.

 Exceptions to the sprinkler requirement include:  

  • Out buildings that are not accessed by residents 
  • Parts of non-certified buildings that residents may pass through as long as they do not live or sleep there 
  • Certain awnings and overhangs that are constructed of non-combustible or limited combustible material   
  • Free standing wardrobes and closets that are considered to be furniture.

CMS estimates that almost 1300 facilities nationwide are not fully sprinklered, with approximately 1150 partially sprinklered (or unknown) and about 140 unsprinklered. To promote the most rapid improvement in fire protection, CMS has said it will not impose a civil monetary penalty (CMP) if the plan of correction shows that the facility is making a timely investment, has contracts in place, and has completed plans for installation that will allow for completion of the sprinkler project within three months after the survey date. CMPs may be imposed, however, if the noncompliance is serious, and particularly if at the time of the survey the necessary plans have not been completed. The CMS Regional Office may issue other remedies and demand earlier compliance for facilities that do not show a clear commitment to, and reasonable timeframe for, sprinklering the facility.   

Any facilities that have not already obtained any necessary state approvals and entered into contracts for installation of fully compliant sprinkler systems should be urged to do so now. In my experience, engineers who do this work are in heavy demand at this time, and the planning and installation process can easily take longer than three months, putting the facility at financial risk for a DPNA, or even termination. Facilities that wait until they are cited on survey may be in for a rude awakening.   

Footnote

[i] See 42 CFR 483.70(a)(8).

This article is for general information and does not include full legal analysis of the matters presented. It should not be construed or relied upon as legal advice or legal opinion on any specific facts or circumstances. The description of the results of any specific case or transaction contained herein does not mean or suggest that similar results can or could be obtained in any other matter. Each legal matter should be considered to be unique and subject to varying results. The invitation to contact the authors or attorneys in our firm is not a solicitation to provide professional services and should not be construed as a statement as to any availability to perform legal services in any jurisdiction in which such attorney is not permitted to practice.

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