[Federal Register Volume 68, Number 7 (Friday, January 10, 2003)]
[Rules and Regulations]
[Pages 1374-1388]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-273]



[[Page 1374]]

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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Centers for Medicare & Medicaid Services

42 CFR Parts 403, 416, 418, 460, 482, 483, and 485

[CMS-3047-F]
RIN 0938-AK35


Medicare and Medicaid Programs; Fire Safety Requirements for 
Certain Health Care Facilities

AGENCY: Centers for Medicare & Medicaid Services (CMS), HHS.

ACTION: Final rule.

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SUMMARY: This final rule amends the fire safety standards for 
hospitals, long-term care facilities, intermediate care facilities for 
the mentally retarded, ambulatory surgery centers, hospices that 
provide inpatient services, religious nonmedical health care 
institutions, critical access hospitals, and Programs of All-Inclusive 
Care for the Elderly facilities. Further, this final rule adopts the 
2000 edition of the Life Safety Code and eliminates references in our 
regulations to all earlier editions.

DATES: Effective Date: These regulations are effective on March 11, 
2003. The incorporation by reference of certain publications in this 
rule is approved by the Director of the Federal Register as of March 
11, 2003.
    Compliance Dates: All health care facilities referenced in this 
rule must comply with the requirements of this final rule on September 
11, 2003, except that compliance with Sec.  403.744(c), Sec.  
416.44(b)(4), Sec.  418.100(d)(4), Sec.  460.72(b)(3), Sec.  
482.41(b)(1)(iv), Sec.  483.70(a)(4), Sec.  483.470(j)(2)(iii), and 
Sec.  485.623(d)(5) is not required until March 13, 2006.

FOR FURTHER INFORMATION CONTACT: Mayer Zimmerman, (410) 786-6839, James 
Merrill, (410) 786-6998, or Tamara Syrek Jensen, (410) 786-3529.

SUPPLEMENTARY INFORMATION:

I. Background

A. Life Safety Code

    The Life Safety Code (LSC) is a compilation of fire safety 
requirements for new and existing buildings and is updated and 
published every 3 years by the National Fire Protection Association 
(NFPA), a private, nonprofit organization dedicated to reducing loss of 
life due to fire. The Medicare and Medicaid regulations have 
historically incorporated by reference these requirements along with 
Secretarial waiver authority. The statutory basis for incorporating 
NFPA's LSC for our providers is under the Secretary's general 
rulemaking authority at sections 1102 and 1871 of the Social Security 
Act.
    We have not updated the LSC regulations for several years. We 
published a proposed rule in the Federal Register on August 1, 1990 (55 
FR 31196) proposing to eliminate the use of the 1967 and 1973 editions 
of the LSC. In the August 1990 proposed rule, hospitals, nursing homes, 
and intermediate care facilities for the mentally retarded (ICFs/MR) 
would be required to comply with either the 1981 or 1985 editions of 
the LSC, depending on the date the provider entered the program. The 
proposed rule did not include ambulatory surgery centers (ASCs), 
hospices, or end-stage renal disease (ESRD) facilities. The August 1990 
proposed rule also made no reference to the Program of the All-
Inclusive Care for the Elderly (PACE) facilities, Critical Access 
Hospitals, and religious nonmedical health care institutions (RNHCIs) 
because these provider and supplier types did not exist when we 
published the August 1990 proposed rule.
    On October 26, 2001, we published a proposed rule proposing to 
withdraw the August 1, 1990 proposed rule because the NFPA published 
four new editions of the LSC since the publication of our August 1990 
proposed rule. Some accrediting organizations had adopted the 1997 
edition of the LSC. The Joint Commission on Accreditation of Healthcare 
Organizations (JCAHO) which accredits over 4,000 hospitals, as well as 
ASCs, long-term care (LTC) facilities, and hospices that provide 
inpatient services has adopted the 1997 edition of the LSC. We had to 
update our requirements to a more recent edition of the LSC because the 
1985 edition of the LSC had been superseded by later editions which 
incorporated the latest technology in fire protection.

B. The Proposed Rule of October 26, 2001 (66 FR 54179)

    The 2000 edition of the LSC includes new provisions that we believe 
are vital to the health and safety of all patients and staff. The term 
``patient'' represents the population in each of the provider-types 
discussed in this rule. We proposed not to grandfather any facility 
under these new provisions because the provisions would not impose an 
undue burden. Our intention is to ensure that patients and staff 
continue to experience the highest degree of fire safety possible.
    In the past, our authority to grant waivers was critical to our 
ability to continuously improve fire safety in the Medicare and 
Medicaid programs and not impose an undue burden on providers. The 
Secretary has broad authority to grant waivers to hospitals under 
section 1861(e)(9)(C) of the Act, and to LTC facilities under sections 
1819(d)(2)(B) and 1919(d)(2)(B) of the Act. For all other providers we 
have authority under the Secretary's general rulemaking authority to 
establish specific health and safety standards as well as under section 
1871 of the Act. The proposed rule allows the Secretary to grant 
waivers on a case-by-case basis if specific provisions of the LSC would 
result in unreasonable hardship on the provider, and if the safety of 
patients would not be compromised. The Secretary may also accept a 
State's fire and safety code instead of the LSC if the State's fire and 
safety code adequately protects patients. Further, the NFPA's Fire 
Safety Evaluation System (FSES), an equivalency system, provides 
alternatives to meeting various provisions of the LSC, thereby 
achieving the same level of fire protection as the LSC.
    In addition to the development of a proposed rule to adopt the 2000 
edition of the LSC, we planned to propose a more efficient process that 
allows us to adopt future editions of the LSC in a more timely manner. 
We explored incorporating, by reference, the NFPA LSC without specific 
dates in the regulations text and publishing a Federal Register notice, 
instead of a proposed rule. We worked closely with the Office of the 
Federal Register (OFR) staff on our draft proposed approach; however, 
it has become clear that adoption of multiple successive editions of 
the LSC via reference is not possible. Changes in future editions of 
the LSC may be substantial, necessitating that we go through a proposed 
rule and public comment period. Moreover, we cannot automatically 
incorporate successive versions of the LSC because of the statutory 
restrictions of 5 U.S.C. section 552(a) and accompanying regulations at 
1 CFR part 51. All LSC editions we adopt must include a specific 
edition and a copy of the edition cited must be on file at the OFR.

II. Provisions of the Proposed Regulations

A. General Description

    In the October 26, 2001 proposed rule, we proposed to (1) require 
that all

[[Page 1375]]

providers and suppliers meet the provisions of the 2000 edition of the 
LSC with certain exceptions; and (2) remove references to all previous 
editions of the LSC.

B. The 2000 Edition of the Life Safety Code

    Some requirements in the 2000 edition of the LSC are substantially 
different than earlier LSC editions. We solicited public comments 
regarding whether to adopt Chapter 5, ``Performance Based Option,'' of 
the LSC. Specifically, we wanted to know (1) whether health care 
facilities are using performance based design; and (2) what benefits 
the facility receives by using performance based design.
    The LSC fire safety goals establish outcomes to be achieved with 
regard to fire safety. These overall outcomes are communicated through 
specific requirements in the LSC. The performance based design option 
translates fire safety goals into performance objectives and 
performance criteria. Performance based design establishes broad goals 
and objectives with a team effort. The performance based design is 
applied to make the building safe as well as functional. The design is 
specific to the building. Computer fire models and other calculation 
methods are used in combination with the building design 
specifications, specified fire scenarios and assumptions to calculate 
the overall performance criteria and whether it meets the fire life 
safety goals and is in compliance with the intent of the LSC.
    In the October 2001 proposed rule, we proposed not to adopt the 
roller latch provision in chapter 19, ``Existing Health Care 
Occupancies,'' section 19.3.6.3.2 (exception No. 2), of the LSC for any 
facility. A roller latch is a type of door latching mechanism to keep a 
door closed. The 2000 edition of the LSC prohibits the use of roller 
latches on corridor doors in buildings not fully protected by an 
approved sprinkler system. Exception No. 2, however, allows for the use 
of roller latches under this prohibition, if the latch can withstand a 
specific level of force applied to it. We proposed not to adopt 
exception No. 2 regarding existing roller latches.
    Through fire investigations, roller latches have proven to be an 
unreliable door latching mechanism requiring extensive on-going 
maintenance to operate properly. Many roller latches in fire situations 
failed to provide adequate protection to residents in their rooms 
during an emergency. Roller latches that are not properly maintained 
may be a danger to the health and safety of patients and staff. In 
addition, we have found through our online survey, certification, and 
reporting (OSCAR) system data report that doors that include roller 
latches are consistently one of our most cited deficiencies. In fact, 
in skilled nursing facilities roller latches in corridor doors are 
consistently the number one cited deficiency under the life safety 
requirements.
    The estimated cost to remove roller latches on existing doors is 
$30,754,540 ($190 per door for 161,866 doors). We derived the cost 
estimate from information the American Health Care Association (AHCA) 
gave to us.

C. Analysis of Selected New Provisions in the 2000 Edition of the Life 
Safety Code

    In the October 2001 proposed rule, we provided the LSC citation, a 
description of the requirement, an explanation of why we believe the 
requirement is critical to the safety of beneficiaries and a brief 
discussion of our analysis of the burden imposed by the requirement. We 
derived the cost estimates from information the AHCA gave to us. The 
following are new provisions in the 2000 edition of the LSC from 
chapter 19, ``Existing Health Care Occupancies.''
    (1) 19.1.1.4.5--Renovations, Alterations, and Modernization--This 
provision requires that renovations, alterations, and modernizations 
comply with standards applicable to new construction when possible. 
Existing facilities that are extensively renovated must meet the 
requirements of a newly constructed facility, including the 
installation of sprinkler systems in nonsprinklered buildings. The Fire 
Analysis & Research Division of the NFPA has shown that sprinklers have 
been the most important life safety system installed in health care 
facilities. The LSC generally requires sprinkler systems in 
renovations, regardless of construction. The estimated cost of 
installing sprinkler systems in buildings that presently do not have 
them is $2.50 per square foot, or approximately $125,000 for a 50,000 
square foot building. This requirement is not imposed on facilities not 
undergoing renovations. Approximately 2,550 facilities currently do not 
have sprinkler systems. Because a facility does not have to comply with 
this provision unless the facility chooses to renovate an existing 
building, we estimate approximately 128 facilities may be renovated in 
a year. The total amount to implement this provision would be 
$16,000,000 annually.
    (2) 19.2.9--Emergency Lighting--This provision requires emergency 
lighting for a period of 1\1/2\ hours in health care facilities, 
enabling those inside to move about safely in an emergency. We proposed 
to phase in this requirement over a 3-year period, to allow for the 
normal replacement cycle of batteries used in emergency lighting 
systems. We believe this phase-in period would not adversely impact the 
health and safety of the beneficiaries. We estimate the cost to install 
this equipment will be $600 per light. Approximately 790 existing 
facilities do not have emergency lighting for 1\1/2\ hours. To be in 
compliance, we estimated that each building would need 12 emergency 
light units for a total of 9,482 units. The total amount to implement 
this provision over a 3-year period would be $5,452,150 or $1,817,383 
annually.
    (3) 19.3.1--Protection of Vertical Openings--Unprotected vertical 
openings (for example, open stairwells) permit fire and toxic gases to 
spread from one level to another in a building, making evacuation 
difficult, if not impossible. The estimated cost of compliance with 
this requirement is $2,938 per vertical opening. Approximately 9,877 
vertical openings in 1,976 facilities would need to be upgraded for 
compliance. Total cost of compliance with this provision is 
$29,018,626.
    (4) 19.3.4.3.2--Emergency Forces Notification--This provision 
requires the fire alarm system to provide automatic notification of a 
fire to emergency forces. This is of great importance to the protection 
of all patients. Any delay in the notification of fire or rescue 
personnel could adversely impact the health and safety of patients and 
expose them to a fire, smoke or toxic gases created by the fire. 
Approximately 2,750 buildings at $900 per facility would need to be 
connected to a fire alarm retransmission system. The cost is estimated 
to be a total of $2,475,000.
    (5) 19.3.6.1--Corridors--This provision requires that all areas in 
nonsprinklered buildings be separated from the corridor by corridor 
walls that are fire-rated. This requirement, which provides a protected 
passageway for movement during an emergency, is necessary to increase 
the safety of the patients. The cost to upgrade a facility to meet this 
requirement is estimated to be approximately $7,124 for 1,976 buildings 
that currently meet the 1967 LSC and approximately $5,735 for 46 
buildings meeting the 1973 LSC. The total estimated cost for compliance 
is $14,341,000.
    (6) 19.7.5.2 & 19.7.5.3--Upholstered Furniture--These provisions 
allow patient-owned furniture to be brought

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into the facility without meeting the requirements of 10.3.2(2) and 
10.3.3 (regarding fire resistant furniture) if a single station smoke 
detector is placed in the sleeping room where the furniture is located. 
The cost to the facility is estimated at $100 per sleeping room where 
patient-owned furniture is located. We estimate approximately 18,498 
smoke detectors would need to be installed at a total cost of 
$1,849,800.
    In the October 2001 proposed rule, we proposed to retain our 
existing authority to waive provisions of the 2000 edition of the LSC, 
on a case-by-case basis, and thereby reduce the exposure to additional 
cost and burden for those facilities with unique situations that may 
justify the application of waivers. We may grant a waiver for a 
specific LSC requirement if (1) We determine that the waiver would not 
adversely affect patient and staff health and safety; and (2) we 
determine that it would impose an unreasonable hardship on the facility 
to meet a specific LSC requirement. Generally, a provider may request a 
waiver from its State agency. The State agency will review the request 
and make a recommendation to our appropriate regional office. Our 
regional office will review the waiver request and the State agency's 
recommendation and make a final decision. We cannot grant a waiver if 
patient safety is compromised in any way. A State may also request that 
the State fire and safety code be applied to all its facilities rather 
than the 2000 edition of the LSC we proposed in the October 2001 
proposed rule. State law must impose the State fire and safety code. 
The State must submit the request to our appropriate regional office. 
The regional office will forward the request to our central office for 
a final determination.
    We proposed to retain our authority to apply the Fire Safety 
Evaluation System (FSES) as an alternative approach to meeting the 
requirements of the LSC, as well as accept alternative State fire and 
safety codes as we discussed in section I.B in the October 2001 
proposed rule.

D. Discussion of Fire Safety Requirements for Individual Providers and 
Suppliers

    In the October 2001 proposed rule, we proposed changes to the 
requirements that affect all provider types, as described in sections 
II.A and II.B of this preamble. We proposed changes for distinct types 
of providers that include the following:
    1. Religious Nonmedical Health Care Institutions--Benefits, 
Conditions of Participation, and Payment: 42 CFR 403.744 Condition of 
participation: Life safety from fire.
    We proposed to retain the provisions of the existing interim final 
regulation for RNHCIs published in the Federal Register on November 30, 
1999 (64 FR 67028), except as they conflict with the 2000 edition of 
the LSC and are not within the exceptions detailed in section II.B of 
this preamble (regarding our exceptions to the LSC).
    2. Ambulatory Surgery Centers: 42 CFR 416.44 Condition for 
coverage: Environment.
    We proposed to change the terminology in Sec.  416.44 (b)(1) to 
reflect that the LSC refers to ASCs as Ambulatory Health Care Centers. 
We proposed that all ASCs meet the provisions applicable to Ambulatory 
Health Care Centers in the 2000 edition of the LSC, except as detailed 
in section II.B of this preamble, regardless of the number of patients 
the facility serves.
    We believe the protection provided in the Ambulatory Health Care 
Centers chapter is necessary to protect the health and safety of 
patients who are incapable of taking action of self-preservation. We do 
not believe that the Business Occupancy chapter of the LSC (applied by 
some authorities having jurisdiction to ASCs treating fewer than four 
patients at a time) affords an adequate level of protection to patients 
in an ASC.
    We also proposed to retain the discretion to accept compliance with 
fire and safety codes imposed by a State, if we determine that the 
State's fire and safety code will adequately protect patients in ASCs. 
We have included this provision in Sec.  416.44 (b)(3).
    3. Hospice Care: 42 CFR 418.100(d) Condition of participation: 
Hospices that provide inpatient care directly.
    In the October 2001 proposed rule, we proposed that all inpatient 
hospices meet the provisions applicable to nursing homes in the 2000 
edition of the LSC, with the exceptions discussed in section II.B of 
this preamble, regardless of the number of patients they serve. This is 
not a change in requirements, but merely a clarification that, for LSC 
purposes, an inpatient hospice is considered a nursing home, and not 
another type of occupancy.
    We also proposed not to adopt for hospices chapter 18--section 
3.4.5.3 of the 2000 edition of the LSC. This section requires new 
nursing homes to be equipped with corridor smoke detection systems. We 
believe there is no technical justification for this requirement 
because the 2000 edition of the LSC requires that newly constructed 
patient sleeping zones be provided with quick-response sprinklers. 
Quick-response sprinklers activate quickly enough to serve a detection 
function, thus making corridor smoke detection unnecessary. The 1991 
and 1994 editions of the LSC required quick-response sprinklers in new 
nursing homes but did not require smoke detection. Therefore, we see no 
technical reason to require corridor smoke detection in new facilities 
and thus increase the cost of new construction without a parallel 
increase in safety.
    We also proposed, in Sec.  418.100(d)(3), to permit a hospice to 
meet a fire and safety code imposed by the State in lieu of the 2000 
edition of the LSC if we determine that the State code adequately 
protects patients. We proposed to do this for two reasons: (1) To 
afford hospices the benefit of meeting a State code in lieu of the 
Federal requirements where the State code offers adequate protection; 
and (2) because we recognize that hospices are often located within 
buildings containing other providers already subject to this provision. 
For example, a hospice may be located entirely within a skilled nursing 
facility (SNF). If the SNF is exempt from the LSC by virtue of meeting 
a State code, other participating providers within the same building 
should also be afforded this exception.
    We also proposed to remove Sec.  418.100(d)(4), the requirement 
that blind and nonambulatory patients may not be housed above the 
street level floor unless the building is fully sprinklered or has 
achieved a passing score on the FSES comparison, which is less 
stringent than the LSC. The provision is redundant since any facility 
that meets the requirements of the 2000 edition of the LSC would, by 
definition, achieve a passing score on the FSES comparison. In 
addition, this requirement was removed from the SNF regulations in 
1989; however, we did not remove it from the parallel hospice 
regulations.
    4. Programs of All-Inclusive Care for the Elderly (PACE): 42 CFR 
460.72 Physical environment.
    In the October 2001 proposed rule, we proposed to retain most of 
the provisions of the existing interim final regulation for PACE that 
we published in the Federal Register on November 24, 1999 (64 FR 
66234). PACE centers will continue to be required to meet the LSC 
specifications for the type of facilities in which the programs are 
located (that is, hospitals, office buildings, etc.).
    We also proposed to require that a PACE center meet the 
requirements for use of fire alarm systems in accordance with the 
occupancy section of the LSC that applies to its building. Each 
occupancy section of the LSC also

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requires evacuation plans, fire exit drills, and fire procedures, and 
these will be applicable to the PACE program.
    We also proposed to retain Sec.  460.72(b)(2)(i), which permits a 
PACE center to meet fire and safety requirements imposed by the State 
in lieu of the 2000 edition of the LSC if we determine that the State 
code adequately protects patients. We have done this for two reasons: 
(1) To afford a PACE center the benefit of meeting a State code in lieu 
of the Federal requirements where the State code offers adequate 
protection; and (2) because we recognize that PACE centers are often 
located within buildings containing other providers already subject to 
this provision. For example, a PACE center may be located within a 
hospital. If the hospital is exempt from the LSC by virtue of meeting a 
State code, other participating providers within the same building 
should also be afforded this exemption.
    Further, in some buildings it may be impractical or impossible to 
provide a specific feature due to the construction of the building. 
Therefore, we proposed to retain Sec.  460.72(b)(2)(ii), which allows 
for the waiver of specific provisions of the 2000 edition of the LSC 
that, if rigidly applied, would result in unreasonable hardship on the 
organization. We may waive specific provisions only if the waiver does 
not adversely affect the health and safety of the patients and staff.
    5. Conditions of Participation For Hospitals: 42 CFR 482.41 
Condition of participation: Physical environment.
    In the October 2001 proposed rule, we proposed only the changes to 
this section described in sections II.A and II.B of this preamble, for 
the reasons described therein.
    6. Long-Term Care Facilities: 42 CFR 483.70 Condition of 
participation: Physical environment.
    As with hospices, we proposed not to adopt chapter 18-section 
3.4.5.3 of the 2000 edition of the LSC for LTC facilities such as SNFs. 
This section requires new nursing homes to have corridor smoke 
detection systems. We believe there is no technical justification for 
this new requirement because the 2000 edition of the LSC requires that 
new construction patient sleeping zones be provided with quick-response 
sprinklers. We believe that quick-response sprinklers activate quickly 
enough to serve a detection function, thus making corridor smoke 
detection unnecessary. The 1991, 1994, and 1997 editions of the LSC 
required quick-response sprinklers in new nursing homes, but did not 
require smoke detection. Therefore, we do not see any technical reason 
to require smoke detection in new facilities and thus increase the cost 
of new construction without a parallel increase in safety.
    7. Intermediate Care Facilities for the Mentally Retarded: 42 CFR 
483.470 Condition of participation: Physical environment.
    In the October 2001 proposed rule, we proposed to retain most of 
the provisions of the existing regulation for ICFs/MR. ICFs/MR will 
continue to be permitted to meet either the Residential Board and Care 
Occupancies chapter or the Health Care Occupancy chapter of the 2000 
edition of the LSC, as appropriate.
    We also proposed to retain the provision in Sec.  483.470(j)(1)(ii) 
that allows the State survey agency to apply different chapters of the 
LSC to different buildings or parts of buildings so as not to place an 
undue burden on providers to have an entire building comply with the 
more stringent provisions of the Health Care chapter when they could 
instead meet the Board and Care for part of their facility, when 
appropriate.
    We also proposed that, for ICFs/MR under Board and Care, the 
Evacuation Difficulty Index (EDI) must be determined by use of the Fire 
Safety Evaluation System for Board and Care Facilities (FSES/BC). In 
referring to the EDI, we proposed to remove the reference to Appendix F 
in Sec.  483.470(j)(1)(iii). The FSES/BC is no longer an appendix of 
the LSC, but appears as its own NFPA document in the NFPA 101A Guide on 
Alternative Approaches to Life Safety. Additionally, we proposed to 
remove the reference to facilities of 16 beds or less from Sec.  
483.470(j)(1)(iii) to clarify that a larger facility could be subject 
to the Board and Care Chapter, and that its EDI would have to be 
calculated based on the FSES/BC. Again, this provision would allow 
certain ICFs/MR to meet the less restrictive Board and Care Chapter 
rather than the health care chapter.
    In Sec.  483.470(j)(2)(ii), we proposed to change ``the Secretary'' 
to ``CMS'' to more accurately reflect the statutory authority (this 
provision currently appears in Sec.  483.470(j)(2)(i)(B)).
    We also proposed in Sec.  483.470(j)(3) that waivers of specific 
provisions of the 2000 edition of the LSC apply only to facilities that 
meet the LSC definition of a Health Care occupancy. There are no 
waivers for facilities under Board and Care, since the FSES/BC affords 
the flexibility of alternative arrangements for compliance.

III. Analysis of and Responses to Public Comments

    We received approximately 160 timely public comments in response to 
the October 26, 2001 proposed rule. We received letters from State 
government officials, county government organizations, health care 
providers and provider organizations, and private citizens. We reviewed 
each comment and grouped like or related comments. The comments and our 
responses are summarized below.

A. General Comments

    Comment: The majority of commenters expressed support of our 
adoption of the 2000 edition of the National Fire Protection 
Association (NFPA) Life Safety Code (LSC).
    Response: We appreciate the support. Our current regulations allow 
health care providers to meet different editions of the LSC (that is, 
providers may meet the 1967, 1973 and 1985 editions of the LSC). These 
earlier editions are outdated and create confusion in the industry. The 
updated LSC includes new provisions vital to the health and safety of 
all our beneficiaries. This rule is intended to ensure that 
beneficiaries continue to experience the highest degree of fire safety 
possible.

B. Exceptions

    Comment: Several commenters, while supporting the adoption of the 
LSC, urged us to adopt the LSC as written, with no exceptions. The 
commenters argued that by allowing exceptions to the NFPA LSC, we are 
violating the National Technology Transfer and Advancement Act (Pub. L. 
104-113).
    Response: Section 12 of the National Technology Transfer and 
Advancement Act of 1995 (Pub. L. 104-113) codified an existing Office 
of Management and Budget (OMB) circular (OMB Circular A-119). Section 
12 directs Federal agencies to use, to the extent not inconsistent with 
applicable law or otherwise impractical, technical standards that are 
developed or adopted by voluntary consensus standards organizations.
    The National Technology Transfer and Advancement Act does not 
mandate that we use an entire code without exceptions if we determine 
it is impractical. We did not adopt the entire LSC as written because 
through our surveys, comments, and experience, we have determined that 
for the health and safety of patients and staff we could not adopt the 
LSC in its entirety.
    We have ``carved-out'' two provisions from the LSC. These 
provisions are: (1) Roller latches; and (2) ambulatory facilities 
serving under four patients.

[[Page 1378]]

    We are not allowing any exceptions for roller latches because 
roller latches are one of our top three deficiencies for life safety. 
Roller latches that are not properly maintained may be a danger to the 
health and safety of patients and staff. We have found through our 
OSCAR data report that doors that include roller latches are 
consistently one of our most cited deficiencies. In fact, in skilled 
nursing facilities, roller latches in corridor doors are consistently 
the number one cited deficiency under our life safety requirements.
    We also define all ambulatory facilities as surgery centers 
regardless of the number of patients they serve. Under Sec.  416.44, 
ASCs are required to maintain a fully equipped operating room for the 
types of surgery the ASC conducts for the surgery to be performed in a 
manner that protects the lives and ensures the physical safety of all 
individuals in the area. It is imperative that these facilities provide 
the protection of the Ambulatory Health Care chapter (chapters 20 and 
21) rather than the Business Occupancy chapter of the 2000 edition of 
the LSC that pertains to physician offices or clinics because surgery 
is being performed in these facilities.
    Comment: Several commenters opposed the October 2001 proposed 
rule's carve-out of the roller latch exception provision in the LSC 
(chapter 19-3.6.3.2 (exception No. 2)). The commenters claimed there is 
no evidence supporting our carve-out of the roller latch exception.
    Response: As described above, roller latches that are not properly 
maintained may be a danger to the health and safety of patients and 
staff and are consistently one of our most cited deficiencies.
    One of the most tragic examples of roller latch failure occurred in 
the fall of 1989 where a fire claimed 12 lives in a nursing home. In 
all the rooms where the door was closed and remained closed through out 
the fire, the patients lived. In the rooms where the door was open or 
originally closed but bounced open, the patients died. During our 
investigation, we tested the doors on the floor above the fire origin. 
We discovered the majority of the doors tested failed to stay closed 
because of the roller latches. In fact, as a result of the failure of 
the roller latches in this facility, the 1991 edition of the NFPA LSC 
prohibited the use of roller latches in new buildings.
    Therefore, in this final rule, we are prohibiting the use of roller 
latches in existing and new buildings except for ASCs under Chapter 20 
and Chapter 21. We understand the burden that may be caused to replace 
all existing roller latches and will phase-in this requirement over a 
3-year period beginning March 11, 2003.
    Comment: Many commenters supported the proposed rule's carve-out of 
the roller latch exception in the LSC (chapter 19-3.6.3.2).
    Response: We appreciate the support. We believe, as discussed in 
our response to the previous comment, that prohibiting use of roller 
latches will allow patients and staff to experience the highest degree 
of fire safety possible.
    Comment: Several commenters opposed the proposed exception to 
delete the smoke detector requirement for hospices and nursing 
facilities. Many believed smoke detectors are an inexpensive 
requirement for new facilities that provides an extra layer of 
protection.
    Response: We agree with these comments and have changed the 
regulations text to no longer exempt new nursing homes or inpatient 
hospices from Chapter 18-3.4.5.3 of the LSC. Please note that this 
requirement does not apply to existing facilities, but only to new 
nursing homes or inpatient hospices.

C. Chapter 5--Performance Based Option

    Comment: In the October 2001 proposed rule, we solicited comments 
on whether to adopt chapter 5, the performance based option of the LSC. 
Most of the comments we received specifically on chapter 5, the 
performance based option, stated that they had little experience with 
this option.
    The performance based design option in chapter 5 of the LSC 
translates fire safety goals into performance objectives and 
performance criteria. Performance based design establishes broad goals 
and objectives with a team effort. The performance based design is 
applied to make the building safe as well as functional. The design is 
specific to the building. Computer fire models and other calculation 
methods are used in combination with the building design 
specifications, specified fire scenarios and assumptions to calculate 
the overall performance criteria and whether it meets the fire life 
safety goals and is in compliance with the intent of the code.
    Response: We have decided to include chapter 5, the performance 
based option provision. We do not expect many providers to choose this 
option. However, we would like all providers to have the alternative to 
use the performance based option if the provider believes it would be 
beneficial for it to comply with the LSC.
    Please note that the final rule will also continue to allow two 
other options besides the prescriptive requirements of the LSC. Health 
care facilities may choose the FSES, and a facility may apply for a 
waiver of specific provision of the LSC if it is unable to meet a 
specific requirement. We may grant a waiver for a specific LSC 
requirement if (1) we determine that the waiver would not adversely 
affect patient and staff health and safety; and (2) we determine that 
it would impose an unreasonable hardship on the facility to meet a 
specific LSC requirement. A provider may request a waiver from its 
State agency. The State agency will review the request and make a 
recommendation to our appropriate regional office. Our regional office 
will review the waiver request and the State agency's recommendation 
and make a final decision on the waiver request. We cannot grant a 
waiver if patient safety is compromised in any way.

D. State Codes

    Comment: One commenter opposes the LSC because it would preempt 
State or local decision-making authority and create an unfunded 
mandate.
    Response: If a State or local authority would rather use its State 
fire and safety code, this is an allowable option as long as the State 
fire and safety code is imposed by State law and adequately protects 
the life and safety of the patients. To request this option, the State 
must forward the request to its CMS regional office. The CMS regional 
office will forward the request to the CMS central office where a final 
determination will be made as to whether the State fire and safety code 
may be used in place of the NFPA LSC.
    We also have retained our authority to waive provisions of the LSC, 
on a case-by-case basis. We may grant a waiver for a specific LSC 
requirement if we determine that the waiver would not adversely affect 
the patient or staff health and safety and it would impose an 
unreasonable hardship on the facility to meet a specific LSC 
requirement. If a health care facility would like a waiver for a 
specific provision in the LSC, the facility must forward the request to 
their State survey agency. The State agency will review the request, 
make a recommendation and forward the request to the appropriate CMS 
regional office. The CMS regional office will review the State agency's 
recommendation and make a final decision.
    Comment: Several commenters requested that the October 2001 
proposed rule be revised to allow health care facilities to choose 
other codes that

[[Page 1379]]

are nationally recognized, such as the International Building Code and 
International Fire Code. Referencing only the NFPA's LSC in the final 
rule creates conflict for many jurisdictions that enforce other 
equivalent or more stringent fire and life safety requirements. By not 
referencing other applicable codes, CMS favors one code to the 
detriment of other codes.
    Response: We continue to specifically cite the LSC because under 
sections 1819(d)(2)(B) and 1919(d)(2)(B) of the Act, nursing homes must 
meet the provisions of ``such edition (as specified by the Secretary in 
regulation) of the Life Safety Code of the National Fire Protection 
Association * * *.'' To avoid confusion and to be consistent for all 
provider types we require the LSC for all inpatient facilities. This is 
especially applicable for facilities with mixed occupancies. For 
example, a health care facility's west wing could be a nursing home 
while the rest of the facility is a hospital. It would be impractical 
as well as burdensome for the facility to follow the LSC for the 
nursing home and another health and safety code for the hospital. The 
regulation reflects this by requiring a single code for all inpatient 
health care facilities.
    However, if a State's own fire and safety code would ``adequately 
protect patients'' and the State code is imposed by State law, the 
State may submit a request in writing to its CMS regional office. The 
CMS regional office will forward the request to the CMS central office. 
The CMS central office will make a final decision on whether the State 
code may be used in place of the NFPA LSC.
    Comment: Several commenters support CMS's authority to ``accept a 
State's fire and safety code instead of the LSC if the State's fire and 
safety code adequately protects patients.'' However, these same 
commenters stated that the CMS must have a system in place to evaluate 
any State code to determine that the requirement provides adequate 
protection for patients and staff.
    Response: We appreciate the support for accepting State fire and 
safety codes in addition to the LSC. If a State chooses to use its fire 
and safety code rather than the LSC, it must be imposed by State law 
and adequately protect patients and staff. Any State that chooses this 
option should send the request to its CMS regional office. The regional 
office will forward the request to the CMS central office. The central 
office will make the final determination and respond in writing as to 
whether the State fire and safety code adequately protects patients and 
staff.

E. Ambulatory Surgical Centers (ASCs)

    Comment: Some commenters believe that we should allow 
grandfathering for Ambulatory Surgical Centers (ASCs) that meet 
previous editions of the LSC. Some commenters stated that, at the very 
least, we should permit ASCs to postpone compliance with the 2000 
edition of the LSC until the ASC undertakes a major renovation. The 
commenters stated that compliance with the 2000 edition of the LSC, 
especially for smaller ASCs would impose a financial burden. One 
commenter asked us to phase-in the requirements because it would be a 
financial hardship for most ASCs to comply with the 2000 edition of the 
LSC. The commenter suggested that we consider a couple of approaches 
for phasing in the 2000 edition of the LSC. For ASCs already Medicare-
certified, the 2000 edition of the LSC would only need to be met if the 
ASC underwent a major renovation, or we could implement a timeline for 
full compliance to the 2000 edition of the LSC (for example, 5 years).
    Response: It is not our intent to impose a retroactive requirement 
for ASCs. For existing ASCs, most provisions in the 2000 edition of the 
LSC are similar to past editions. Furthermore, existing facilities in 
compliance with early editions of the LSC are not required to upgrade 
to a later edition of the LSC for certain provisions. For example, an 
existing ASC is not required to upgrade its Type I Essential Electrical 
System (EES). Chapter 21-2.9.2 references NFPA 99, Standard for Health 
Care Facilities. This provision states that ASCs ``shall be provided 
with an EES in accordance with NFPA 99, Standard for Health Care 
Facilities.'' Under NFPA 99 existing ASCs are able to continue to use 
existing electrical and medical gas systems that are in compliance with 
the earlier editions of the LSC provided the ASC continues to meet the 
edition of the LSC requirements when it was constructed. The 
referencing to the NFPA 99 for certain provisions (that is, EES, and 
medical gas) should relieve some burden for ASCs.
    In addition, an ASC may also request a waiver for a specific 
provision of the LSC further reducing the exposure to additional cost 
and burden for ASCs with unique situations that can justify the 
application of waivers and will not endanger the health and safety of 
patients. A waiver may be granted for a specific LSC requirement if (1) 
we determine that the waiver would not adversely affect patient and 
staff health and safety; and (2) we determine that it would impose an 
unreasonable hardship on the facility to meet a specific LSC 
requirement. All waivers are determined on a case-by-case basis. An ASC 
may request a waiver from its State Agency. The State Agency will 
review the request and make a recommendation to the appropriate CMS 
regional office. The CMS regional office will review the waiver request 
and the State agency's recommendation and make a final decision on the 
waiver request. A waiver cannot be granted if patient safety is 
compromised in any way.
    Comment: A few commenters objected to the requirements in the 2000 
edition of the LSC that ASCs must have a Type I Essential System (EES) 
and upgrade their medical gas capabilities. Most of the ASCs, 
especially smaller ASCs, do not have a Type I EES or meet the medical 
gas requirement in the 2000 edition of the LSC. The commenters stated 
that the change to a Type I EES and to upgrade their medical gas 
capabilities will be a financial hardship on the ASCs.
    Response: Only new facilities will be required to have a Type I EES 
or upgrade its medical gas capabilities. Existing ASC facilities in 
compliance with early editions of the LSC for EES and medical gas 
requirements are not required to upgrade to the 2000 edition of the 
LSC. Per chapter 21-2.9.2 and chapter 21-3.2.2, an ASC facility shall 
be in compliance with ``NFPA 99, Standard for Health Care Facilities.'' 
Under NFPA 99 existing ASCs may continue to use existing electrical and 
medical gas systems that are in compliance with earlier editions of the 
LSC provided the ASC continues to meet the earlier edition of the LSC 
requirements when it was constructed. If the ASC fails to meet the 
earlier LSC requirements, the ASC must upgrade to the 2000 edition of 
the LSC. An ASC must also meet the 2000 edition of the LSC if its EES 
or medical gas system undergo alteration, modernization, or renovation.
    Comment: Three commenters requested that ASCs be exempt from the 
fire-rated wall standards in Chapter 19-3.6.1 and the vertical opening 
standard in Chapter 19-3.1 of the 2000 edition of the LSC. The 
commenters explained that ASCs would be unable to comply with these 
requirements because most ASCs do not control spaces outside of their 
leased area.
    Response: The commenters may have misunderstood which chapters 
apply to ASCs. Chapters 20 and 21 apply to ASCs, not chapter 19. This 
confusion may have been caused because we improperly cited chapter 19 
in the ASC regulatory text. We deleted all chapter

[[Page 1380]]

19 provisions in the ASC regulatory text. Chapter 19 only applies to 
existing Health Care Facilities (for example, hospitals, nursing homes, 
etc.). Chapter 21 applies to existing ASCs. The related sections of 
chapter 21 are not significantly different than what existing ASCs are 
required to meet currently. For example, building construction type, 
vertical opening requirements and, fire alarm requirements have not 
changed from earlier editions of the life safety code.
    Comment: Several commenters believed that ASCs should only be 
classified as Ambulatory Health Care Centers if they serve four or more 
patients who are rendered incapable of self-preservation. If there are 
less than four patients, we should not subject the ASC to more 
stringent requirements when the risk is not severe enough to warrant 
those restrictions and should be classified under the less stringent 
Business Occupancy chapter of the 2000 edition of the LSC.
    Response: Ambulatory facilities are surgery centers regardless of 
the number of patients they serve. Under Sec.  416.44, ASCs are 
required to maintain a fully equipped operating room for the types of 
surgery the ASC conducts in order for the surgery to be performed in a 
manner that protects the lives and ensures the physical safety of all 
individuals in the area. It is imperative that these facilities provide 
the protection of the Ambulatory Health Care Chapters (chapters 20 and 
21) rather than the Business Occupancy chapter of the 2000 edition of 
the LSC that generally pertains to physician offices or clinics because 
surgery is being performed.

F. Critical Access Hospitals

    Comment: Several commenters asked why Critical Access Hospitals 
(CAHs) were not included in the October 2001 proposed rule.
    Response: We should have included CAHs in the October 2001 proposed 
rule. We corrected this mistake and added CAHs to the final rule at 
Sec.  485.623(d). Similar to the other facilities, roller latches under 
chapter 19-3.6.3.2 (exception No. 2) will not be adopted. Thus, all 
existing CAHs will no longer be permitted to use roller latches. 
Through fire investigations, roller latches have proven to be an 
unreliable door latching mechanism requiring extensive maintenance to 
operate properly. We realize there is some burden with replacing 
existing roller latches and will phase in this requirement over a 3-
year period beginning March 11, 2003. If a CAH believes that this rule 
(including the 3-year phase in period for the roller latches) imposes 
an unreasonable burden, the facility should contact its State Office to 
request a waiver. The State Agency will review the request for the 
waiver and make a recommendation to the appropriate CMS regional 
office. The CMS regional office will review the waiver and the State 
Agency's recommendation and make a final decision on the waiver 
request.

G. Miscellaneous

    Comment: Two commenters asked us to define major and minor 
renovations to a facility.
    Response: The difference between major and minor renovations has to 
do with the size and cost of the upgrade. Obviously, replacing a door 
would be a minor renovation, but adding a wing to a hospital would be a 
major renovation. We understand there may be times when it is difficult 
to determine if the renovation would qualify as a major renovation. 
These decisions are made on a case-by-case basis rather than a ``one 
size fits all'' requirement. If a facility is unsure if the renovation 
would be considered major or minor, the facility may call the State 
survey agency for an evaluation and final decision.
    Comment: Some commenters requested that we adopt updated versions 
of the LSC more quickly in the future. One commenter requested that we 
adopt any updated version of the LSC within 90 days of the LSC 
publication.
    Response: We agree and would like to revise our regulations to 
update the LSC in a more timely manner. However, we cannot adopt the 
LSC within 90 days of the LSC publication because under the 
Administrative Procedure Act (APA), we must give notice to the public 
that we are proposing to revise a regulation. Once we notify the public 
of the proposal, the public must have the opportunity to comment on the 
revisions, and we must answer the comments before the update becomes 
final and binding.
    Comment: Some commenters asked when all health care facilities must 
be in compliance with this final rule.
    Response: The final rule is effective 60 days after publication. 
However, to relieve some burden for providers, we are delaying 
enforcement of the 2000 edition of the LSC for six months until 
September 11, 2003. In addition, as stated earlier, because of the 
burden that may be imposed by the requirement to replace all existing 
roller latches we will phase in this requirement over a 3-year period 
beginning on March 11, 2003. We will also phase in the emergency 
lighting requirement (19.2.9) over a 3-year period beginning on March 
11, 2003. We have revised the regulations text to reflect the phase-in 
period.

H. Burden Estimates

    Comment: Several commenters stated that our ``carve-out'' of the 
roller latch exception would be a cost burden.
    Response: Roller latches are one of our top three deficiencies and, 
based on prior incidents, we are concerned about the possible threats 
to patient safety. We believe that, in the interest of patient and 
staff safety, all roller latches must be removed. To help alleviate 
some of the burden to health care facilities, we will phase in this 
requirement over 3 years.
    Comment: A couple of commenters questioned our cost estimates. The 
commenters stated that our reliance on the AHCA report only applied to 
nursing homes and the estimates were outdated.
    Response: We agree and we reviewed our cost estimates and revised 
the cost impact for the final rule. All of the revised cost estimates 
were gathered using OSCAR data as well as figures sent as comments to 
the October 2001 proposed rule. The revision of our estimates reflects 
a significant decrease in the number of facilities using the 1985 
edition of the LSC. Many of the older facilities that were originally 
included in our estimate have upgraded their facility using a more 
recent edition of the LSC rather than the 1985 edition. The total cost 
impact we originally estimated has changed because many of the items 
that need to be updated have already been done because older facilities 
have been phased out or upgraded. Therefore, the number of facilities 
we originally determined had to make upgrades has decreased.
    We phased in two requirements of the LSC over a 3-year period. The 
requirements are: Emergency lighting (that is, 19.2.9) and replacing 
all roller latches (that is, 19.3.6.3.2). We phased in the emergency 
lighting requirement because it is standard practice to routinely 
replace emergency lighting system batteries every 3 years. Therefore, 
our decision to phase in the emergency lighting requirement over 3 
years is to match providers' current cycle of replacing the batteries 
in their emergency lighting systems. We believe by phasing in this 
requirement, we will not adversely affect the health and safety of the 
patients or staff.
    We also phased in over 3 years our requirement that all providers 
must replace roller latches. In the October 2001 proposed rule, we did 
not propose to phase in roller latches because we believed that it was 
an important issue

[[Page 1381]]

of ensuring fire safety for patients and staff. However, we received a 
large number of comments regarding the amount of time and the cost 
required to replace the roller latches. While we still believe that 
replacing roller latches is an important fire safety issue, we realize 
we have to balance the burden to providers with the impact this change 
will have. To alleviate some of the burden of the roller latch 
requirement, we are phasing in the requirement over 3 years. During 
this 3-year phase in period, we will continue to monitor, through our 
existing survey process, a facility's maintenance of its existing 
roller latches to ensure that they are maintained and operating 
properly. We believe that this will help ensure fire safety for 
patients and staff.
    We did not phase in any other of the LSC requirements because we 
believe updating the other requirements is an important safeguard for 
ensuring fire safety to all patients and staff of each facility.
    Below we outlined all the major changes a health care facility 
would have to undergo if the health care facility has not upgraded its 
facility since meeting earlier editions of the LSC. As in the October 
26, 2001 proposed rule, below we have provided the LSC citation, a 
description of the requirement, an explanation of why we believe it is 
critical to the safety of patients to require it, and a brief 
discussion of our analysis of the burden imposed by the requirement. 
The following are new provisions in the 2000 edition of the LSC from 
chapter 19, ``Existing Health Care Occupancies.''
    Please note that we did not include chapter 19, section 1.1.4.5 
(Renovations, Alterations, and Modernization) in our total estimate. 
This provision is not a requirement of the final rule. This provision 
only applies if a health care facility chooses to extensively renovate 
its facility or build a new facility. Existing facilities that are 
extensively renovated must meet the requirements of a newly constructed 
facility, including the installation of sprinkler systems in 
nonsprinklered buildings. The Fire Analysis & Research Division of the 
NFPA has shown that sprinklers have been the most important life safety 
system installed in health care facilities. The LSC generally requires 
sprinkler systems in renovations, regardless of construction techniques 
or materials used in constructing the facility. The estimated cost of 
installing sprinkler systems in buildings that presently do not have 
them is $2.50 per square foot, or approximately $125,000 for a 50,000 
square foot building. This requirement is not imposed on existing 
facilities. In the proposed rule we stated there were 255 facilities 
that do not have sprinkler systems. This was a typographical error. 
There are approximately 2,550 facilities that do not currently have 
sprinkler systems. Again, none of these facilities are required to 
install sprinkler systems under this final rule.
    (1) 19.2.9--Emergency Lighting--This provision requires emergency 
lighting for a period of 1\1/2\ hours in health care facilities, 
enabling those inside to move about safely in an emergency. We proposed 
to phase-in this requirement over a 3-year period, to allow for the 
normal replacement cycle of batteries used in emergency lighting 
systems. We believe this phase in period would not adversely impact the 
health and safety of the patient. In the October 2001 proposed rule, we 
estimated that 790 existing facilities do not have emergency lighting 
for 1\1/2\ hours. Approximately 12 emergency light units would be 
needed for each facility. We estimated that the cost to be in 
compliance with this provision was $7,200 per facility. In the proposed 
rule we estimated that the total cost for all facilities to be upgraded 
under this provision would be $5,452,150.
    Approximately 642 existing facilities do not have emergency 
lighting for 1\1/2\ hours. We estimate each facility would need 
approximately 12 emergency light units at a cost of $750 per light. We 
estimate it will cost each facility $9,000 to upgrade its emergency 
lighting. The total amount to implement this requirement for all 
facilities will be $1,926,000 for the first year. Because we are 
phasing in this requirement over 3 years, we estimate that it will be 
approximately $1,926,000 for each of the next 2 years.
    (2) 19.3.1--Protection of Vertical Openings--Unprotected vertical 
openings (for example, open stairwells) permit fire, smoke, and toxic 
gases to spread from one level to another in a building, making 
evacuation difficult, if not impossible. In the October 2001 proposed 
rule, we estimated that to upgrade the vertical openings would be 
$2,938 per vertical opening. We estimated that 9,877 vertical openings 
in 1,976 facilities needed to be upgraded for a total cost of 
$29,018,626 or an average of $14,690 per facility.
    We revised this figure estimating that 5,573 vertical openings in 
1,115 facilities would be affected because many facilities have already 
upgraded their buildings to meet this requirement. Each vertical 
opening costs approximately $3,819. We estimate the facilities that 
need to be upgraded will need to install an average of five vertical 
openings. The total estimated cost is $21,283,687 for all facilities to 
be upgraded or an average of $19,095 per facility.
    (3) 19.3.4.3.2--Emergency Forces Notification--This provision 
requires the fire alarm system to provide automatic notification of a 
fire to emergency forces. This is of great importance to the protection 
of all patients. Any delay in the notification of fire or rescue 
personnel could adversely impact the health and safety of patients and 
expose them to a fire, smoke, or toxic gases created by the fire. In 
the October 2001 proposed rule, we estimated that approximately 2,750 
buildings at $900 per facility would need to be connected to a fire 
alarm retransmission system for a total estimated cost of $2,475,000.
    We revised our cost estimates because the October 2001 proposed 
rule was incorrect. The proposed rule estimate did not account for 
installation. The one time cost to install a fire department or central 
monitoring station connection is $1,707 per facility. In addition, we 
estimate that there is a $97.50 monthly fee for the monitoring stations 
and telephone costs.
    We determined that 2,358 buildings at $2,877 (installation fee + 
monthly fee for one year) per facility would need to be connected to a 
fire alarm retransmission system. We estimate that to be in compliance 
with this provision the total cost is approximately $6,783,966.
    (4) 19.3.6.1--Corridors--This provision requires that all areas in 
nonsprinklered buildings must be separated from the corridor by 
corridor walls that are fire-rated. This requirement, which provides a 
protected passageway for movement during an emergency, is necessary to 
increase the safety of the patients. In the October 2001 proposed rule, 
we estimated that the cost to upgrade a facility to meet this 
requirement was $7,124 for 1,976 buildings that currently meet the 1967 
LSC and approximately $5,735 for 46 buildings meeting the 1973 LSC.
    We revised the proposed rule estimates and approximately 1,606 
buildings currently meet the 1967 LSC and will need to be upgraded. We 
estimate that to upgrade facilities that currently meet the 1967 LSC is 
$14,871,560 or approximately $9,260 per facility.
    We also calculated that 39 buildings currently meet the 1973 LSC. 
The estimated cost to upgrade the 39 buildings is $290,745, 
approximately $7,455 per facility.

[[Page 1382]]

    The revised total cost estimate for all facilities to meet this 
requirement is $15,162,305.
    (5) 19.7.5.2 & 19.7.5.3--Upholstered Furniture--These provisions 
allow patient-owned furniture to be brought into the facility without 
meeting the requirements of 10.3.2(2) and 10.3.3 (regarding fire 
resistant furniture) if a single station smoke detector is placed in 
the sleeping room where the furniture is located. This gives the 
facility a more home-like atmosphere. In the October 2001 proposed 
rule, we estimated that 18,498 smoke detectors would need to be 
installed at approximately $100 per smoke detector. We estimated in the 
proposed rule that the total cost to be in compliance with this 
provision was $1,849,800.
    We revised this cost estimate because we believe 19,262 smoke 
detectors need to be installed rather than the 18,498 we estimated in 
the October 2001 proposed rule. We did not change our estimate of the 
cost of the smoke detector (that is, $100 per smoke detector). The 
total amount to be in compliance with this provision is $1,926,200.
    (6) 19.3.6.3.2--Roller Latches--We ``carved out'' the exception the 
LSC allowed for roller latches in existing buildings. In the October 
2001 proposed rule we estimated the total cost for all facilities to 
remove exiting roller latches was $30,754,540 ($190 per door for 
161,866).
    We revised the estimate and 190,303 roller latches must be replaced 
at a cost of $250 per roller latch, for a total cost estimate of 
$47,575,750. We are phasing in this requirement over 3 years. Thus, we 
estimate that it will cost $15,858,583 for the first year and 
$15,858,583 for each of the next 2 years.
    In the October 2001 proposed rule, we proposed to retain our 
existing authority to waive provisions of the 2000 edition of the LSC, 
on a case-by-case basis, further reducing the exposure to additional 
cost and burden for facilities with unique situations that can justify 
the application of waivers, which we determine will not endanger the 
health and safety of patients.
    We proposed to retain our authority to apply the FSES as an 
alternative approach to meeting the requirements of the LSC, as well as 
accept alternative State fire and safety codes discussed in section I.B 
in the October 2001 proposed rule.

IV. Provisions of the Final Regulations

    For the most part, this final rule adopts the provisions of the 
October 26, 2001 proposed rule. Those provisions of this final rule 
that differ from the October 2001 proposed rule follow. In response to 
comments, we are revising Sec.  485.623(d) to require all critical 
access hospitals (CAHs) to meet the applicable provisions of the 2000 
edition of the LSC. The provision of the adopted 2000 edition of the 
LSC that does not apply to a CAH is chapter 19, ``Existing Health Care 
Occupancies,'' section 19.3.6.3.2 (exception No. 2), roller latches.
    We deleted the reference to chapter 19 (that is, 19.3.6.3.2) under 
the ASC regulatory text because it was improperly cited for ASCs. We 
cited chapter 19.3.6.3.2 because all roller latches must be replaced in 
existing health care occupancies. However, Chapter 19 does not apply to 
ASCs. ASCs are under chapter 20 (that is, new ASCs) and chapter 21 
(that is, existing ASCs).
    We also decided to include chapter 5, the performance based option 
provision. We do not expect many providers to choose this option. 
However, we would like all providers to have the alternative to use the 
performance based option if the provider believes it would be useful 
for it to comply with the LSC. In addition, we have provided for a 3-
year phase in period for the requirements regarding roller latches and 
emergency lighting.
    The final rule will continue to allow other options besides the 
prescriptive requirements of the LSC. Health care facilities may choose 
the FSES, and a facility may apply for a waiver of a specific provision 
of the LSC if it is unable to meet a specific requirement. We may grant 
a waiver for a specific LSC requirement if (1) we determine that the 
waiver would not adversely affect patient and staff health and safety; 
and (2) we determine that it would impose an unreasonable hardship on 
the facility to meet a specific LSC requirement. A provider may request 
a waiver from its State agency. The State agency will review the 
request and make a recommendation to the appropriate CMS regional 
office. The CMS regional office will review the waiver request and the 
State agency's recommendation and make a final decision on the waiver 
request. We cannot grant a waiver if patient safety is compromised in 
any way.
    A State may also choose to use its fire and safety code rather than 
the LSC if the State fire and safety code is imposed by State law and 
adequately protect patients. Any State that chooses this option must 
send the request to its CMS regional office. The regional office will 
forward the request to the CMS central office. The central office will 
make the final determination and respond in writing as to whether the 
State fire and safety code adequately protects patients and staff. 
Lastly, we no longer exempt new nursing homes or new hospices providing 
inpatient care from chapter 18.3.4.5.3 of the LSC. Several commenters 
opposed the proposed exception to remove the smoke detector requirement 
for hospices and nursing facilities. Many commenters believe smoke 
detectors are an inexpensive requirement for new facilities and they 
provide an extra layer of protection. We agree and removed the 
exception from the regulations text in hospices at Sec.  418.100(d) and 
nursing facilities at Sec.  483.70(a).

V. Collection of Information Requirements

    This rule does not impose any information collection and record 
keeping requirements that are subject to review by the Office of 
Management and Budget under the Paperwork Reduction Act of 1995 (44 
U.S.C. 3501 et seq.).

VI. Regulatory Impact Statement

A. Introduction

    This final rule adopts the 2000 edition of the LSC. The objective 
is to provide safety to life during fires and other emergencies. 
Adoption and use of the 2000 edition of the LSC will bring us up-to-
date in requiring the latest and best technology in fire protection for 
our beneficiaries. These requirements are designed to protect all 
patients and staff. The 2000 edition of the LSC also protects property 
and can reduce the dollar loss associated with a fire. For example, the 
2000 edition of the LSC requires that any new construction install 
quick-response sprinkler systems increasing the level of protection to 
our beneficiaries. Adopting the 2000 edition of the LSC and removing 
references to all older editions of the LSC will eliminate confusion as 
to which edition a health care facility must follow. This is 
particularly important when a facility has multiple buildings 
constructed at differing times or a single building with multiple wings 
or additions constructed at different times. Instead of each building 
complying with different editions of the LSC, this final rule requires 
all the buildings to comply with the same edition of the LSC. The use 
of a single edition of the code should also contribute to lowering the 
cost of complying with the requirements for testing and maintenance of 
fire protection systems.

B. Overall Impact

    We have examined the impacts of this final rule as required by 
Executive Order 12866 (September 1993, Regulatory Planning and Review) 
and

[[Page 1383]]

the Regulatory Flexibility Act (RFA) (September 16, 1980 Pub. L. 96-
354), section 1102(b) of the Social Security Act, the Unfunded Mandates 
Reform Act of 1995 (Pub. L. 104-4) and Executive Order 13132. Executive 
Order 12866 directs agencies to assess all costs and benefits of 
available regulatory alternatives and, if regulation is necessary, to 
select regulatory approaches that maximize net benefits (including 
potential economic, environmental, public health and safety effects, 
distributive impacts, and equity). A regulatory impact analysis (RIA) 
must be prepared for major rules with economically significant effects 
($100 million or more in any 1 year).
    We have examined the impact of this final rule and we have 
determined that this rule is neither expected to meet the criteria to 
be considered economically significant, nor do we believe it will meet 
the criteria for a major rule. All entities affected by this rule are 
considered small entities. Therefore, a final regulatory impact 
analysis is not required for the same reasons explained in section VI.C 
of this rule.
    We revised our estimate of the regulatory impact of this final rule 
from $96,356,599 to $63 million for the first year and $17.5 million 
for each of the next 2 years. The estimate appears lower than the 
estimate in the October 2001 proposed rule because unlike the October 
2001 proposed rule, we are phasing in the requirement to replace all 
existing roller latches over 3 years. Thus, the cost estimate to 
replace the roller latches is reduced from approximately $48 million 
for the first year to approximately $16 million per year for 3 years. 
For a detailed description of our estimates for each provider, section 
II.C of this final rule outlines our cost estimates in the 2001 
proposed rule, and section III.H of this final rule outlines our 
revised cost estimates for this rule as well as why we revised the 
estimates.

C. Impact on Small Entities and Rural Hospitals

    The RFA requires agencies to analyze options for regulatory relief 
of small businesses. For purposes of the RFA, small entities include 
small businesses, nonprofit organizations, and government agencies. 
Most hospitals and most other providers and suppliers are small 
entities, either by nonprofit status or by having revenues of $6 to $29 
million in any one year (for details, see the Small Business 
Administration's regulation that sets forth size standards for health 
care industries at 65 FR 69432). For purposes of the RFA, all health 
care facilities affected by this regulation are considered to be small 
entities. Individuals and States are not included in the definition of 
a small entity.
    In addition, section 1102(b) of the Act requires us to prepare a 
regulatory impact analysis if a rule may have a significant impact on 
the operations of a substantial number of small rural hospitals. This 
analysis must conform to the provisions of section 604 of the RFA. For 
purposes of section 1102(b) of the Act, we define a small rural 
hospital as a hospital that is located outside a Metropolitan 
Statistical Area and has fewer than 100 beds.
    Based on the Small Business Administration (SBA) and CMS data 
(these data can be found in the April 2002 CMS Statistics Publication 
No. 03437 or www.cms.hhs.gov), approximately 4,593 out of 6,650 
hospitals are considered to be small businesses or nonprofit hospitals. 
We do not consider this rule to significantly impact these hospitals 
because the cost of this rule is less than 1 percent of the total costs 
for hospitals. According to the CMS 2002 national expenditure data, the 
total national costs for hospitals in 2002 was $412.1 billion. We 
estimate this rule will cost hospitals, including CAHs, approximately 
$8,263,848 for the first year and $4,131,924 for each of the next 2 
years due to the phase in of emergency lighting and the replacement of 
all roller latches.
    Based on the SBA and CMS data, approximately 3,064 out of 3,474 
ASCs are considered to be small businesses or nonprofit providers. 
However, we do not consider this rule to significantly impact the ASCs 
because the cost of this rule is less than 1 percent of the total costs 
for ASCs. According to the CMS 2002 national expenditure data, the 
total national cost for ASCs in 2002 was $286.4 billion. We estimate 
that it will cost ASCs approximately $2,511,667 for the first year and 
$1,255,833 for each of the next 2 years due to the phase in of 
emergency lighting and the replacement of all roller latches.
    Based on the SBA and CMS data, approximately 17,901 out of 23,500 
LTC providers, inpatient hospices, and ICF/MR facilities are considered 
to be small businesses or nonprofit providers. We do not consider this 
rule to significantly impact the LTC providers, inpatient hospices, or 
ICF/MR facilities because the cost of this rule is less than 1 percent 
of the total costs for these providers. According to the CMS 2002 
national expenditure data, the total national costs for LTC providers, 
inpatient hospices, and ICF/MR facilities in 2002 were $89.3 billion. 
Our cost estimate for compliance with this rule for LTC providers, 
inpatient hospices, and ICF/MR facilities is approximately $59,195,736 
for the first year and $5,788,375 for each of the next 2 years due to 
the phase in of emergency lighting and the replacement of all roller 
latches. We combined the estimates of LTC facilities, inpatient 
hospices, and ICF/MR facilities because of the similarities in how the 
provider types are surveyed for compliance with the LSC and the items 
that must be upgraded to meet the 2000 edition of the LSC. In addition, 
most ICF/MR facilities will not be impacted by this rule because the 
majority of these facilities are fairly new and are considered a 
residential occupancy rather than the more stringent health care 
occupancy type. However, there are ICF/MR facilities that care for the 
more severely impaired. These ICF/MR facilities are similar to an LTC 
facility and will be impacted by the 2000 edition of the LSC.
    Lastly, we do not believe this rule will affect PACE centers or 
RNHCI facilities because PACE and RNHCI are new programs and they 
already meet the 1997 edition of the LSC. The changes from the 1997 
edition of the LSC to the 2000 edition of the LSC are negligible. For 
example, PACE centers and RNHCI facilities have 1.5-hour emergency 
lighting, no vertical opening problems, and do not have any roller 
latches. Moreover, because both of these providers are new programs, 
the SBA does not have an estimate as to how many are considered small 
businesses. We consider all RNHCIs to be nonprofit entities.
    Please note we also provided a cost estimate for each of the 
provisions with respect to which we believe that each facility will 
need to upgrade to be in compliance with this final rule in section 
III.H.
    The cost estimate does not take into account any waivers that may 
be granted. We will retain the existing authority to waive specific 
provisions of the 2000 edition of the LSC, further reducing the 
exposure to additional cost and burden for facilities with unique 
situations that can justify the application of waivers, and that we 
determine will not endanger the health and safety of patients.
    The cost estimate does not factor in any cost reduction if we 
accept a State's fire and safety code instead of the NFPA's 2000 
edition of the LSC. We have the authority to accept a State fire and 
safety code in lieu of the NFPA LSC if the State code is imposed by 
State law, and adequately protects patients.

[[Page 1384]]

    We also note that the 2000 LSC permits the use of the FSES as an 
alternative approach that may also reduce the cost of compliance 
significantly. The FSES is an equivalency system. The FSES may allow a 
facility to comply with the LSC without having to make changes to the 
facility due to other offsetting or compensating fire protection 
features that exist in the facility.
    We do not know the amount that any of the above waivers or 
alternatives may save a health care facility because each facility must 
be reviewed on a case-by-case basis to determine whether the facility 
will be granted a waiver for a specific provision of the LSC or use its 
State fire and safety code or if the facility chooses to use the FSES.
    While we expect a revised edition of the LSC to be published in 
2003, we believe it is imperative to publish this final rule, which 
incorporates the 2000 edition of the LSC in response to the needs of 
the providers, States, accrediting organizations, and the public for 
clarity and consistency with the current regulatory and accreditation 
setting. The 2000 edition of the LSC includes new provisions that we 
believe are vital to the health and safety of all patients and staff. 
This final rule is intended to ensure that beneficiaries continue to 
experience the highest degree of fire safety possible. We believe by 
adopting the 2000 edition of the LSC now instead of waiting for the 
release of the 2003 edition will (1) minimize the burden on health care 
providers because the standards we currently require most of the 
providers to follow are at least 15-years old and (2) increase the 
level of safety for patients and staff. Once the NFPA adopts the 2003 
edition of the LSC, we will quickly begin the process of reviewing the 
revised edition with the intent to publish a proposed rule to set forth 
requirements we think would be beneficial to the providers, States, 
accrediting organizations, and the public. Providers, States, 
accrediting organizations, and the public are requesting that we 
publish this rule now rather than wait because many of the providers 
can only comply with our regulations by using older fire safety 
techniques.

D. The Unfunded Mandates Reform Act

    Section 202 of the Unfunded Mandates Reform Act of 1995 also 
requires that agencies assess anticipated costs and benefits before 
issuing any rule that may result in expenditure in any 1 year by State, 
local, or tribal governments, in the aggregate, or by the private 
sector, of $110 million. This rule will not have an effect on the 
governments mentioned, and the private sector costs will not be greater 
than the $110 million threshold. We discuss specific private sector 
costs in section VI.C of this rule.

E. Federalism

    Executive Order 13132 establishes requirements that an agency must 
meet when it publishes a final rule that imposes substantial direct 
requirement costs on State, local, or tribal governments, preempts 
State law, or otherwise has Federalism implications.
    We have examined this final rule and have determined that this rule 
will not have a substantial effect on State, local, or tribal 
governments.

F. Anticipated Effects

    While all health care facilities are affected by this regulation, 
most health care facilities will be affected minimally. Most changes 
that would occur would be minor and should not adversely impact 
patients. Each new edition of the LSC builds on prior editions; changes 
from one edition to the next have been relatively minor since 1985. 
Many health care providers have updated their facilities since 1985 and 
already meet most of the provisions in the 2000 edition of the LSC. In 
fact, most health care providers stated that they are exposed to 
additional work and expense without any gain in fire safety by 
continuing to abide by the 1985 edition of the Life Safety Code. For 
example, the JCAHO requires all its accredited facilities to meet the 
1997 edition of the LSC, while Medicare requires all facilities to meet 
an earlier edition of the LSC. This has caused confusion, as well as 
additional burden to the health care facility in requesting waivers or 
changing some of the renovations to meet both editions of the LSC. 
Updating the LSC will not only relieve burden for health care providers 
but also assist in ensuring the health and safety of patients and 
staff.
    By adopting the 2000 edition of the LSC, we will eliminate 
confusion as to which edition a health care facility must follow. The 
use of a single edition of the code should also contribute to lowering 
the cost of complying with the requirements for testing and maintenance 
of fire protection systems under multiple editions of the LSC.
1. Effects on Specific Entities
    This rule will affect hospitals, LTC facilities, ICFs/MR, ASCs, 
hospices that provide inpatient services, RNHCIs, CAHs, and PACE 
Centers.
2. Effects on Other Providers
    We do not expect this regulation to affect any other providers.
3. Effects on the Medicare and Medicaid Programs
    If facilities decide to use the performance-based option to meet 
the requirements of the LSC, we estimate that it could cost 
approximately $3.5 million in the aggregate for States to survey 
facility plans using the performance-based option. We estimate that 25 
states will be affected by the use of the performance-based option. Our 
estimate is based on the hiring of one fire protection engineer at an 
average of $60,000 annual salary and one engineer technician at an 
average $40,000 annual salary plus minimal travel and training 
expenses. We expect that we would have to additionally fund the States 
in order for them to be able to have the expertise to survey any 
facility using the performance-based option.

G. Alternatives Considered

    The statutory basis for incorporating the NFPA's code for nursing 
homes is specific authority in the Act at sections 1819(d)(2) and 
1919(d)(2). For hospitals, the statutory authority to adopt fire safety 
provisions is section 1861(e)(9) of the Act. To be consistent and to 
avoid confusion among health care providers, we incorporated the NFPA's 
2000 edition of the LSC for all Medicare inpatient facilities under the 
Secretary's general rulemaking authority.
    Alternatively, we could have chosen not to update the fire safety 
code. This is not an acceptable alternative because many health care 
facilities are exposed to additional work and expense without any gain 
in fire safety by continuing to abide by the 1985 edition of the Life 
Safety Code. For example, the JCAHO requires all its accredited 
facilities to meet the 1997 edition of the LSC, while Medicare requires 
all facilities to meet an earlier edition of the LSC. This has caused 
confusion, as well as additional burden to the health care facility in 
requesting waivers or changing some of the renovations to meet both 
editions of the LSC. Updating the LSC will not only relieve burden for 
health care providers but also assist in ensuring the health and safety 
of patients and staff.
    Please note that while we incorporate the NFPA's 2000 edition of 
the LSC, all health care providers have other options besides the 
prescriptive requirements of the LSC. Health care facilities may choose 
the Fire Safety Evaluation System (FSES) and a facility may apply for a 
waiver of a specific provision of the LSC if it is unable to meet a 
specific

[[Page 1385]]

requirement. A waiver may be granted for a specific LSC requirement if 
(1) we determine that the waiver would not adversely affect patient and 
staff health and safety; and (2) we determine that it would impose an 
unreasonable hardship on the facility to meet a specific LSC 
requirement. A provider may request a waiver from its State Agency. The 
State Agency will review the request and make a recommendation to the 
appropriate CMS regional office. The CMS regional office will review 
the waiver request and the State agency's recommendation and make a 
final decision on the waiver request. A waiver cannot be granted if 
patient safety is compromised in any way.

H. Conclusion

    For these reasons, we are not preparing analyses for either the RFA 
or section 1102(b) of the Act because we have determined, and we 
certify, that this final rule will not have a significant economic 
impact on a substantial number of small entities or a significant 
impact on the operations of a substantial number of small rural 
hospitals.
    In accordance with the provisions of Executive Order 12866, this 
regulation was reviewed by the Office of Management and Budget.

List of Subjects

42 CFR Part 403

    Health insurance, Hospitals, Incorporation by reference, 
Intergovernmental relations, Medicare, Reporting and recordkeeping 
requirements.

42 CFR Part 416

    Health facilities, Incorporation by reference, Kidney diseases, 
Medicare, Reporting and recordkeeping requirements.

42 CFR Part 418

    Health facilities, Hospice care, Incorporation by reference, 
Medicare, Reporting and recordkeeping requirements.

42 CFR Part 460

    Aged, Health, Incorporation by reference, Medicare, Medicaid, 
Reporting and recordkeeping requirements.

42 CFR Part 482

    Grant programs--health, Hospitals, Incorporation by reference, 
Medicaid, Medicare, Reporting and recordkeeping requirements.

42 CFR Part 483

    Grant programs--health, Health facilities, Health professions, 
Health records, Incorporation by reference, Medicaid, Medicare, Nursing 
homes, Nutrition, Reporting and recordkeeping requirements, Safety.

42 CFR Part 485

    Grant programs--health, Health facilities, Incorporation by 
reference, Medicaid, Medicare, Reporting and recordkeeping 
requirements.

    For the reasons set forth in the preamble, the Centers for Medicare 
and Medicaid Services amends 42 CFR chapter IV as follows:

PART 403--SPECIAL PROGRAMS AND PROJECTS

    1. The authority citation for part 403 continues to read as 
follows:

    Authority: Secs. 1102 and 1871 of the Social Security Act (42 
U.S.C. 1302 and 1395hh).

Subpart G--Religious Nonmedical Health Care Institutions--Benefits, 
Conditions of Participation, and Payment

    2. Section 403.744 is amended as follows:
    a. The introductory text to paragraph (a) is republished.
    b. Paragraph (a)(1) is revised.
    c. Paragraph (c) is added.


Sec.  403.744  Condition of participation: Life safety from fire.

    (a) General. An RNHCI must meet the following conditions:
    (1) Except as otherwise provided in this section, the RNHCI must 
meet the applicable provisions of the 2000 edition of the Life Safety 
Code of the National Fire Protection Association. The Director of the 
Office of the Federal Register has approved the NFPA 101[reg] 2000 
edition of the Life Safety Code, issued January 14, 2000, for 
incorporation by reference in accordance with 5 U.S.C. 552(a) and 1 CFR 
part 51. A copy of the Code is available for inspection at the CMS 
Information Resource Center, 7500 Security Boulevard, Baltimore, MD and 
at the Office of the Federal Register, 800 North Capitol Street, NW., 
Suite 700, Washington, DC. Copies may be obtained from the National 
Fire Protection Association, 1 Batterymarch Park, Quincy, MA 02269. If 
any changes in this edition of the Code are incorporated by reference, 
CMS will publish notice in the Federal Register to announce the 
changes. Chapter 19.3.6.3.2, exception number 2 of the adopted Life 
Safety Code does not apply to an RNHCI.
* * * * *
    (c) Phase-in period. An RNHCI must be in compliance with the 
following provisions beginning on March 13, 2006:
    (1) Chapter 19.3.6.3.2, exception number 2.
    (2) Chapter 19.2.9, Emergency Lighting.

PART 416--AMBULATORY SURGICAL SERVICES

    1. The authority citation for part 416 continues to read as 
follows:

    Authority: Secs. 1102 and 1871 of the Social Security Act (42 
U.S.C. 1302 and 1395hh).

Subpart C--Specific Conditions for Coverage

    2. Section 416.44 is amended as follows:
    a. Paragraph (b)(1) is revised.
    b. Paragraph (b)(3) is revised.
    c. Paragraph (b)(4) is added.


Sec.  416.44  Condition for coverage--Environment.

* * * * *
    (b) Standard: Safety from fire. (1) Except as otherwise provided in 
this section, the ASC must meet the provisions applicable to Ambulatory 
Health Care Centers of the 2000 edition of the Life Safety Code of the 
National Fire Protection Association, regardless of the number of 
patients served. The Director of the Office of the Federal Register has 
approved the NFPA 101[reg] 2000 edition of the Life Safety 
Code, issued January 14, 2000, for incorporation by reference in 
accordance with 5 U.S.C. 552(a) and 1 CFR part 51. A copy of the Code 
is available for inspection at the CMS Information Resource Center, 
7500 Security Boulevard, Baltimore, MD and at the Office of the Federal 
Register, 800 North Capitol Street NW., Suite 700, Washington, DC. 
Copies may be obtained from the National Fire Protection Association, 1 
Batterymarch Park, Quincy, MA 02269. If any changes in this edition of 
the Code are incorporated by reference, CMS will publish notice in the 
Federal Register to announce the changes.
* * * * *
    (3) The provisions of the Life Safety Code do not apply in a State 
if CMS finds that a fire and safety code imposed by State law 
adequately protects patients in an ASC.
    (4) An ASC must be in compliance with Chapter 21.2.9.1, Emergency 
Lighting, beginning on March 13, 2006.
* * * * *

[[Page 1386]]

PART 418--HOSPICE CARE

    1. The authority citation for part 418 continues to read as 
follows:

    Authority: Secs. 1102 and 1871 of the Social Security Act (42 
U.S.C. 1302 and 1395hh).

Subpart E--Conditions of Participation: Other Services

    2. Section 418.100 is amended as follows:
    a. Paragraph (d)(1) is revised.
    b. Paragraph (d)(3) is revised.
    c. Paragraph (d)(4) is revised.


Sec.  418.100  Condition of participation: Hospices that provide 
inpatient care directly.

* * * * *
    (d) Standard: Fire protection. (1) Except as otherwise provided in 
this section, the hospice must meet the provisions applicable to 
nursing homes of the 2000 edition of the Life Safety Code of the 
National Fire Protection Association. The Director of the Office of the 
Federal Register has approved the NFPA 101[reg] 2000 edition 
of the Life Safety Code, issued January 14, 2000, for incorporation by 
reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. A copy 
of the Code is available for inspection at the CMS Information Resource 
Center, 7500 Security Boulevard, Baltimore, MD and at the Office of the 
Federal Register, 800 North Capitol Street NW., Suite 700, Washington, 
DC. Copies may be obtained from the National Fire Protection 
Association, 1 Batterymarch Park, Quincy, MA 02269. If any changes in 
this edition of the Code are incorporated by reference, CMS will 
publish notice in the Federal Register to announce the changes. Chapter 
19.3.6.3.2, exception number 2 of the adopted edition of the LSC does 
not apply to a hospice.
* * * * *
    (3) The provisions of the adopted edition of the Life Safety Code 
do not apply in a State if CMS finds that a fire and safety code 
imposed by State law adequately protects patients in hospices.
    (4) A hospice must be in compliance with the following provisions 
beginning on March 13, 2006:
    (i) Chapter 19.3.6.3.2, exception number 2.
    (ii) Chapter 19.2.9, Emergency Lighting.
* * * * *

PART 460--PROGRAMS OF ALL-INCLUSIVE CARE FOR THE ELDERLY (PACE)

    1. The authority citation for part 460 continues to read as 
follows:

    Authority: Secs. 1102 and 1871 of the Social Security Act (42 
U.S.C. 1302 and 1395).

Subpart E--PACE Administrative Requirements

    2. Section 460.72 is amended as follows:
    a. Paragraph (b)(1) is revised.
    b. Paragraph (b)(3) is added.


Sec.  460.72  Physical environment.

* * * * *
    (b) Fire safety--(1) General rule. (i) Except as otherwise provided 
in this section, a PACE center must meet the applicable provisions of 
the 2000 edition of the Life Safety Code (LSC) of the National Fire 
Protection Association that apply to the type of setting in which the 
center is located. The Director of the Office of the Federal Register 
has approved the NFPA 101[reg] 2000 edition of the Life 
Safety Code, issued January 14, 2000, for incorporation by reference in 
accordance with 5 U.S.C. 552(a) and 1 CFR part 51. A copy of the Code 
is available for inspection at the CMS Information Resource Center, 
7500 Security Boulevard, Baltimore, MD and at the Office of the Federal 
Register, 800 North Capitol Street NW., Suite 700, Washington, DC. 
Copies may be obtained from the National Fire Protection Association, 1 
Batterymarch Park, Quincy, MA 02269. If any changes in this edition of 
the Code are incorporated by reference, CMS will publish notice in the 
Federal Register to announce the changes.
    (ii) Chapter 19.3.6.3.2, exception number 2 of the adopted edition 
of the LSC does not apply to PACE centers.
* * * * *
    (3) Phase-in period: A PACE center must be in compliance with the 
following provisions beginning on March 13, 2006:
    (i) Chapter 19.3.6.3.2, exception number 2.
    (ii) Chapter 19.2.9, Emergency Lighting.
* * * * *

PART 482--CONDITIONS OF PARTICIPATION FOR HOSPITALS

    1. The authority citation for part 482 continues to read as 
follows:

    Authority: Secs. 1102 and 1871 of the Social Security Act (42 
U.S.C. 1302 and 1395hh).

Subpart C--Basic Hospital Functions

    2. Section 482.41 is amended as follows:
    a. Paragraph (b)(1) introductory text is revised.
    b. Paragraph (b)(1)(i) is revised.
    c. Paragraph (b)(1)(iv) is added.


Sec.  482.41  Condition of participation: Physical environment.

* * * * *
    (b) Standard: Life safety from fire. (1) Except as otherwise 
provided in this section, the hospital must meet the applicable 
provisions of the 2000 edition of the Life Safety Code of the National 
Fire Protection Association. The Director of the Office of the Federal 
Register has approved the NFPA 101[reg] 2000 edition of the 
Life Safety Code, issued January 14, 2000, for incorporation by 
reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. A copy 
of the Code is available for inspection at the CMS Information Resource 
Center, 7500 Security Boulevard, Baltimore, MD and at the Office of the 
Federal Register, 800 North Capitol Street NW., Suite 700, Washington, 
DC. Copies may be obtained from the National Fire Protection 
Association, 1 Batterymarch Park, Quincy, MA 02269. If any changes in 
this edition of the Code are incorporated by reference, CMS will 
publish notice in the Federal Register to announce the changes.
    (i) Chapter 19.3.6.3.2, exception number 2 of the adopted edition 
of the LSC does not apply to hospitals.
* * * * *
    (iv) A hospital must be in compliance with the following provisions 
beginning on March 13, 2006:
    (A) Chapter 19.3.6.3.2, exception number 2.
    (B) Chapter 19.2.9, Emergency Lighting.
* * * * *

PART 483--REQUIREMENTS FOR STATES AND LONG TERM CARE FACILITIES

    1. The authority citation for part 483 continues to read as 
follows:

    Authority: Secs. 1102 and 1871 of the Social Security Act (42 
U.S.C. 1302 and 1395hh).

Subpart B--Requirements for Long Term Care Facilities

    2. Section 483.70 is amended as follows:

[[Page 1387]]

    a. Paragraph (a) introductory text is revised.
    b. Paragraph (a)(4) is added.


Sec.  483.70  Physical environment.

* * * * *
    (a) Life safety from fire. Except as otherwise provided in this 
section, the facility must meet the applicable provisions of the 2000 
edition of the Life Safety Code of the National Fire Protection 
Association. The Director of the Office of the Federal Register has 
approved the NFPA 101[reg] 2000 edition of the Life Safety 
Code, issued January 14, 2000, for incorporation by reference in 
accordance with 5 U.S.C. 552(a) and 1 CFR part 51. A copy of the Code 
is available for inspection at the CMS Information Resource Center, 
7500 Security Boulevard, Baltimore, MD and at the Office of the Federal 
Register, 800 North Capitol Street NW., Suite 700, Washington, DC. 
Copies may be obtained from the National Fire Protection Association, 1 
Batterymarch Park, Quincy, MA 02269. If any changes in this edition of 
the Code are incorporated by reference, CMS will publish notice in the 
Federal Register to announce the changes. Chapter 19.3.6.3.2, exception 
number 2 of the adopted edition of the LSC does not apply to long-term 
care facilities.
* * * * *
    (4) A long-term care facility must be in compliance with the 
following provisions beginning on March 13, 2006:
    (i) Chapter 19.3.6.3.2, exception number 2.
    (ii) Chapter 19.2.9, Emergency Lighting.
* * * * *

Subpart I--Conditions of Participation for Intermediate Care 
Facilities for the Mentally Retarded

    3. Section 483.470 is amended as follows:
    a. Paragraph (j)(1)(i) is revised.
    b. Paragraph (j)(1)(iii) is revised.
    c. Paragraph (j)(2) is revised.
    d. Paragraph (j)(3) is added.


Sec.  483.470  Condition of participation: Physical environment.

* * * * *
    (j) Standard: Fire protection--(1) General. (i) Except as otherwise 
provided in this section, the facility must meet the applicable 
provisions of either the Health Care Occupancies Chapters or the 
Residential Board and Care Occupancies Chapter of the 2000 edition of 
the Life Safety Code of the National Fire Protection Association. The 
Director of the Office of the Federal Register has approved the NFPA 
101[reg] 2000 edition of the Life Safety Code, issued 
January 14, 2000, for incorporation by reference in accordance with 5 
U.S.C. 552(a) and 1 CFR part 51. A copy of the Code is available for 
inspection at the CMS Information Resource Center, 7500 Security 
Boulevard, Baltimore, MD and at the Office of the Federal Register, 800 
North Capitol Street NW., Suite 700, Washington, DC. Copies may be 
obtained from the National Fire Protection Association, 1 Batterymarch 
Park, Quincy, MA 02269. If any changes in this edition of the Code are 
incorporated by reference, CMS will publish notice in the Federal 
Register to announce the changes.
* * * * *
    (iii) A facility that meets the LSC definition of a residential 
board and care occupancy must have its evacuation capability evaluated 
in accordance with the Evacuation Difficulty Index of the Fire Safety 
Evaluation System for Board and Care facilities (FSES/BC).
    (2) Exceptions for all facilities. (i) Chapter 19.3.6.3.2, 
exception number 2 of the adopted LSC does not apply to a facility.
    (ii) If CMS finds that the State has a fire and safety code imposed 
by State law that adequately protects a facility's clients, CMS may 
allow the State survey agency to apply the State's fire and safety code 
instead of the LSC.
    (iii) The facility must be in compliance with the following 
provisions beginning on March 13, 2006:
    (A) Chapter 19.3.6.3.2, exception number 2.
    (B) Chapter 19.2.9, Emergency Lighting.
    (3) Facilities that meet the LSC definition of a health care 
occupancy.
    (i) After consideration of State survey agency recommendations, CMS 
may waive, for appropriate periods, specific provisions of the Life 
Safety Code if the following requirements are met:
    (A) The waiver would not adversely affect the health and safety of 
the clients.
    (B) Rigid application of specific provisions would result in an 
unreasonable hardship for the facility.
    (ii) [Reserved]
* * * * *

PART 485--CONDITIONS OF PARTICIPATION: SPECIALIZED PROVIDERS

    1. The authority citation for part 485 continues to read as 
follows:

    Authority: Secs. 1102 and 1871 of the Social Security Act (42 
U.S.C. 1302 and 1395(hh)).

Subpart F--Conditions of Participation: Critical Access Hospitals 
(CAHs)

    2. Section 485.623 is amended as follows:
    a. Paragraph (d)(1) is revised.
    b. Paragraph (d)(2) is revised.
    c. Paragraph (d)(5) is added.


Sec.  485.623  Condition of participation: Physical plant and 
environment.

* * * * *
    (d) Standard: Life safety from fire--(1) Except as otherwise 
provided in this section, the CAH must meet the applicable provisions 
of the 2000 edition of the Life Safety Code of the National Fire 
Protection Association. The Director of the Office of the Federal 
Register has approved the NFPA 101[reg] 2000 edition of the Life Safety 
Code, issued January 14, 2000, for incorporation by reference in 
accordance with 5 U.S.C. 552(a) and 1 CFR part 51. A copy of the Code 
is available for inspection at the CMS Information Resource Center, 
7500 Security Boulevard, Baltimore, MD and at the Office of the Federal 
Register, 800 North Capitol Street NW., Suite 700, Washington, DC. 
Copies may be obtained from the National Fire Protection Association, 1 
Batterymarch Park, Quincy, MA 02269. If any changes in this edition of 
the Code are incorporated by reference, CMS will publish notice in the 
Federal Register to announce the changes. Chapter 19.3.6.3.2, exception 
number 2 of the adopted edition of the Life Safety Code does not apply 
to a CAH.
    (2) If CMS finds that the State has a fire and safety code imposed 
by State law that adequately protects patients, CMS may allow the State 
survey agency to apply the State's fire and safety code instead of the 
LSC.
* * * * *
    (5) A critical access hospital must be in compliance with the 
following provisions beginning on March 13, 2006:
    (i) Chapter 19.3.6.3.2, exception number 2.
    (ii) Chapter 19.2.9, Emergency Lighting.


[[Page 1388]]


(Catalog of Federal Domestic Assistance Program No. 93.773, 
Medicare--Hospital Insurance; and Program No. 93.774, Medicare--
Supplementary Medical Insurance Program; and Program No. 93.778, 
Medical Assistance Program)
    Dated: May 9, 2002.
Thomas A. Scully,
Administrator, Centers for Medicare & Medicaid Services.
    Dated: September 26, 2002.
Tommy G. Thompson,
Secretary.
[FR Doc. 03-273 Filed 1-9-03; 8:45 am]
BILLING CODE 4120-01-P