[Federal Register Volume 71, Number 208 (Friday, October 27, 2006)]
[Proposed Rules]
[Pages 62957-62971]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-17911]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Centers for Medicare & Medicaid Services

42 CFR Part 483

[CMS-3191-P]
RIN 0938-AN79


Medicare and Medicaid Programs; Fire Safety Requirements for Long 
Term Care Facilities, Automatic Sprinkler Systems

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

ACTION: Proposed rule.

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SUMMARY: This proposed rule would require all long term care facilities 
to be equipped with sprinkler systems. This proposed rule especially 
requests public comments on the duration of a phase-in period to allow 
long term care facilities to install such systems.

DATES: To be assured consideration, comments must be received at one of 
the addresses provided below, no later than 5 p.m. on December 26, 
2006.

[[Page 62958]]


ADDRESSES: In commenting, please refer to file code CMS-3191-P. Because 
of staff and resource limitations, we cannot accept comments by 
facsimile (fax) transmission.
    You may submit comments in one of four ways (no duplicates, 
please):
    1. You may submit electronic comments on specific issues in this 
regulation to http://www.cms.hhs.gov/eRulemaking. Click on the link 
``Submit electronic comments on CMS regulations with an open comment 
period.'' (Attachments should be in Microsoft Word, WordPerfect, or 
Excel; however, we prefer Microsoft Word.)
    2. By regular mail. You may mail written comments (one original and 
two copies) to the following address ONLY: Centers for Medicare & 
Medicaid Services, Department of Health and Human Services, Attention: 
CMS-3191-P, P.O. Box 8012, Baltimore, MD 21244-8012.
    Please allow sufficient time for mailed comments to be received 
before the close of the comment period.
    3. By express or overnight mail. You may send written comments (one 
original and two copies) to the following address only:
    Centers for Medicare & Medicaid Services, Department of Health and 
Human Services, Attention: CMS-3191-P, Mail Stop C4-26-05, 7500 
Security Boulevard, Baltimore, MD 1244-1850.
    4. By hand or courier. If you prefer, you may deliver (by hand or 
courier) your written comments (one original and two copies) before the 
close of the comment period to one of the following addresses. If you 
intend to deliver your comments to the Baltimore address, please call 
telephone number (410) 786-9994 in advance to schedule your arrival 
with one of our staff members. Room 445-G, Hubert H. Humphrey Building, 
200 Independence Avenue, SW., Washington, DC 20201; or 7500 Security 
Boulevard, Baltimore, MD 21244-1850.
    (Because access to the interior of the HHH Building is not readily 
available to persons without Federal Government identification, 
commenters are encouraged to leave their comments in the CMS drop slots 
located in the main lobby of the building. A stamp-in clock is 
available for persons wishing to retain a proof of filing by stamping 
in and retaining an extra copy of the comments being filed.)
    Comments mailed to the addresses indicated as appropriate for hand 
or courier delivery may be delayed and received after the comment 
period.
    Submission of comments on paperwork requirements. You may submit 
comments on this document's paperwork requirements by mailing your 
comments to the addresses provided at the end of the ``Collection of 
Information Requirements'' section in this document.
    For information on viewing public comments, see the beginning of 
the SUPPLEMENTARY INFORMATION section.

FOR FURTHER INFORMATION CONTACT: Danielle Shearer, (410) 786-6617; 
James Merrill, (410) 786-6998; Jeannie Miller, (410) 786-3164; or 
Rachael Weinstein, (410) 786-6775.

SUPPLEMENTARY INFORMATION:
    Submitting Comments: We welcome comments from the public on all 
issues set forth in this rule to assist us in fully considering issues 
and developing policies. You can assist us by referencing the file code 
CMS-3191-P and the specific ``issue identifier'' that precedes the 
section on which you choose to comment.
    Inspection of Public Comments: All comments received before the 
close of the comment period are available for viewing by the public, 
including any personally identifiable or confidential business 
information that is included in a comment. We post all comments 
received before the close of the comment period on the following Web 
site as soon as possible after they have been received: http://www.cms.hhs.gov/eRulemaking. Click on the link ``Electronic Comments on 
CMS Regulations'' on that Web site to view public comments.
    Comments received timely will also be available for public 
inspection as they are received, generally beginning approximately 3 
weeks after publication of a document, at the headquarters of the 
Centers for Medicare & Medicaid Services, 7500 Security Boulevard, 
Baltimore, Maryland 21244, Monday through Friday of each week from 8:30 
a.m. to 4 p.m. To schedule an appointment to view public comments, 
phone 1-800-743-3951.

I. Background

    [If you choose to comment on issues in this section, please 
indicate the caption ``Background'' at the beginning of your comment.]
    The Life Safety Code (LSC), published by the National Fire 
Protection Association (NFPA), a private, nonprofit organization 
dedicated to reducing loss of life due to fire, is a compilation of 
fire safety requirements. The LSC contains fire safety requirements for 
both new and existing buildings. It is updated through a consensus 
process and generally published every 3 years. Sections 1819(d)(2) and 
1919(d)(2) of the Social Security Act (the Act) require that long term 
care facilities participating in the Medicare and Medicaid programs 
meet the provisions of the edition of the LSC that is adopted by the 
Secretary.
    Beginning with the adoption of the 1967 edition of the LSC in 1971, 
Medicare and Medicaid regulations have historically incorporated the 
LSC requirements by reference for all long term care facilities as well 
as other providers, while providing the opportunity for a Secretarial 
waiver of a requirement under certain circumstances. The statutory 
basis for incorporating NFPA's LSC for our other providers is under the 
Secretary's general rulemaking authority at sections 1102 and 1871 of 
the Act, and under provider-specific provisions of title XVIII that 
permit us to issue regulations to protect the health and safety of 
participants in Medicare and Medicaid. We adopted the LSC to ensure 
that patients and residents are consistently protected from fire, 
regardless of the location in which they receive care. Since adopting 
and enforcing the 1967 and subsequent editions of the LSC, there has 
been a significant decline in the number of multiple death fires, 
indicating that the LSC has been effective in improving fire safety in 
health care facilities.
    On October 26, 2001, we published a proposed rule (66 FR 54179), 
and on January 10, 2003, we published a final rule in the Federal 
Register, entitled ``Fire Safety Requirements for Certain Health Care 
Facilities'' (68 FR 1374). In that final rule, we adopted the 2000 
edition of the LSC provisions as the standard governing Medicare and 
Medicaid health care facilities, including long term care facilities. 
The final rule required all existing long term care facilities to 
comply with the 2000 edition of the LSC.
    The 2000 edition of the LSC required all newly constructed 
buildings containing health care facilities to have an automatic 
sprinkler system installed throughout the building. However, like all 
previous editions, the LSC did not require existing buildings to 
install automatic sprinkler systems throughout if they met certain 
construction standards, ranging from the size of the buildings to the 
types of material used in their construction.
    In accordance with the 2000 edition of the LSC, an existing 
building that meets the above-mentioned construction standards must 
install sprinklers if it undergoes a major renovation. However, in such 
cases, it is only required to install sprinklers in the renovated 
section(s). Therefore, a building may only be sprinklered on one floor 
or one

[[Page 62959]]

wing. We did not receive any timely public comments in response to the 
October 2001 proposed rule that addressed the issue of installing 
automatic sprinkler systems in buildings not undergoing major 
renovations. That is to say, no public comments supported, questioned 
or challenged our proposal to incorporate this LSC provision by 
reference.
    [If you choose to comment on issues in this section, please include 
the caption ``GAO Report'' at the beginning of your comments.]
    A recent Government Accountability Office (GAO) report entitled 
``Nursing Home Fire Safety: Recent Fires Highlight Weaknesses in 
Federal Standards and Oversight'' (GAO-04-660, July 16, 2004, http://www.gao.gov/new.items/d04660.pdf) examined two long term care facility 
fires (Hartford and Nashville) in 2003 that resulted in 31 total 
resident deaths. The report examined Federal fire safety standards and 
enforcement procedures, as well as results from the fire investigations 
of these two incidents. The report recommended that fire safety 
standards for unsprinklered facilities be strengthened and cited 
sprinklers as the single most effective fire protection feature for 
long term care facilities.
    In response to a recommendation made in the GAO report, on March 
25, 2005, we published an interim final rule with comment period in the 
Federal Register entitled, ``Fire Safety Requirements for Certain 
Health Care Facilities; Amendment'' (70 FR 15229). This interim final 
rule added paragraph (a)(7) to Sec.  483.70, to require long term care 
facilities, at minimum, to install battery-operated smoke detectors in 
resident sleeping rooms and public areas, unless they have a hard-wired 
smoke detector system in resident rooms and public areas or a sprinkler 
system installed throughout the facility. Numerous public comments 
regarding this regulation indicated that the proper term for the fire 
safety device we described is ``smoke alarms'' rather than ``smoke 
detectors.'' Therefore, we will refer to these fire safety devices as 
``smoke alarms.'' The final rule ``Fire Safety Requirements for Certain 
Health Care Facilities; Amendment'' also will reflect this terminology 
change.
    Paragraph (a)(7) would be rendered moot by this proposed rule 
because all facilities would be required to have sprinklers throughout 
their buildings and would thus fall under one of the two exceptions 
noted above. For this reason, we are proposing to add a sunset 
provision to paragraph (a)(7). The sunset date for proposed paragraph 
(a)(7)(iv) in Sec.  483.70 would correspond to the phase-in date of the 
sprinkler requirement. For example, if all facilities were required to 
have sprinklers installed throughout their buildings by March 25, 2016, 
then the sunset date of the smoke alarms requirement in paragraph 
(a)(7)(iv) would be March 25, 2016. We believe this would reduce burden 
and confusion for long term care providers.
    [If you choose to comment on issues in this section, please include 
the caption ``Current Fire Safety Status'' at the beginning of your 
comments.]
    Structural fires in long term care facilities are relatively common 
events. From 1994 to 1999, an average of 2,300 long term care 
facilities reported a structural fire each year (2004 GAO Report). 
Although there were approximately 2,300 fires in long term care 
facilities per year, those fires only resulted in an average of 5 
fatalities nationwide per year (2004 GAO Report). The likelihood of a 
fatality occurring due to a long term care facility fire was quite low.
    The likelihood of a high number of fatalities occurring due to a 
long term care facility fire was even lower. From 1990 to 2002, there 
were no major long term care facility fires that resulted in a high 
number of fatalities. The long term care facility fires that did occur 
during this time period either did not result in fatalities or resulted 
in one or two fatalities. For 12 years, there simply were no major 
fires in long term care facilities that could begin to compare to the 
loss of life caused by the Hartford and Nashville fires.
    We believe that the low number of fire-related fatalities each year 
is attributable to the increasing use of automatic sprinkler systems in 
long term care facilities as a fire protection method. State and local 
jurisdictions often adopt new editions of the LSC when they are 
published. Therefore, a building constructed in 1991 likely met the 
requirements of the 1991 edition of the LSC. Beginning with the 1991 
edition of the LSC, all newly built facilities were required to have 
automatic sprinkler systems. In addition, beginning with the 1991 
edition of the LSC, all facilities undergoing major renovations were 
also required by the LSC to install automatic sprinkler systems at 
least in those renovated areas. Therefore, as new facilities have 
replaced old facilities, and as facilities have been renovated, the 
number of residents protected by automatic sprinkler systems has 
increased. The increase in the number of automatic sprinkler systems 
and the number of residents residing in sprinklered buildings 
significantly has decreased the likelihood of a fatality occurring due 
to fire.
    According to NFPA data cited in the 2004 GAO report, there is an 82 
percent reduction in the chance of death occurring in a sprinklered 
building when compared to the chance of death occurring in an 
unsprinklered building. In addition, we note that there has never been 
a multiple death fire in a long term care facility that had an 
automatic sprinkler system installed throughout the facility.
    Automatic sprinkler systems are effective in reducing the risk of 
fatalities due to fire because they limit the size of a developing fire 
and prevent the fire from growing and spreading beyond the area where 
the fire ignited. Limiting the size of a fire and preventing it from 
growing and spreading results in a smaller number of individuals who 
are threatened by the fire. In addition, impeding the fire's growth 
gives the facility staff and residents and the local fire department 
more time to respond to the situation.
    Automatic fire suppression through sprinklers also alleviates some 
of the current heavy reliance on facility staff to implement the 
facility's emergency plan. Fires often occur at night, as both the 
Hartford and Tennessee fires did, when staffing levels are lowest. 
Investigators of the Hartford fire determined that the facility's staff 
did not fully implement the facility's emergency plan, and that may 
have contributed to the number of fatalities in that fire. The 2004 GAO 
report concluded that, ``reliance on staff response as a key component 
of fire protection may not always be realistic, particularly in an 
unsprinklered facility.'' Limiting the area of a building affected by a 
fire may result in less of a need to evacuate or relocate residents, 
thus eliminating some of the heavy reliance on facility staff response.
    The effectiveness of automatic sprinkler systems has prompted some 
States, including Virginia, Connecticut, and Tennessee, to require that 
all long term care facilities have sprinklers. The NFPA also requires 
all long term care facilities to have automatic sprinkler systems as 
part of the 2006 edition of the LSC. The American Health Care 
Association (AHCA), one of the largest long term care facility provider 
organizations, supports installing sprinkler systems in all long term 
care facilities, and worked with the NFPA on the provisions of the 2006 
LSC.
    [If you choose to comment on issues in this section, please include 
the caption ``CMS Action'' at the beginning of your comments.]

[[Page 62960]]

    We support the NFPA in its decision to include an automatic 
sprinkler system requirement for all long term care facilities in the 
2006 edition of the LSC. We have decided to proceed with this rule, 
without adopting the NFPA 2006 edition of the LSC, because we want to 
avoid further delay in requiring an automatic sprinkler system in long 
term care facilities. As the 2003 fires demonstrated, there is a 
significant need to improve fire safety in long term care facilities in 
a timely manner. To adopt the 2006 edition of the LSC, we are required 
to go through notice and comment rulemaking. In addition to the time 
that it takes to carefully analyze the LSC in its entirety, the 
rulemaking process itself is a time-consuming process that, even in the 
best case scenario, takes 18 months to complete. Given the large scope 
of the LSC, it is probable that it would take even longer to complete 
the full rulemaking process. Therefore, it is probable that we would 
not be able to adopt and enforce compliance with the 2006 edition of 
the LSC until 2008 or 2009. In addition, the 2008 or 2009 publication 
date of a final rule would simply begin a probable phase-in period, 
which could be anywhere from 3 to 10 additional years. We believe that 
delaying the rulemaking process would be a disservice to all long term 
care facility residents who reside in buildings that do not have 
sprinklers. Therefore, we have decided at this time to proceed with 
rulemaking that does not include adoption of the NFPA 2006 LSC.
    We will continue to work with the NFPA to revise and refine each 
edition of the LSC. We are currently examining the 2006 edition of the 
LSC in its entirety and exploring the possibility of adopting it for 
all Medicare and Medicaid participating health care facilities. We are 
soliciting public comment about our decision to proceed with rulemaking 
separate from the 2006 LSC. In addition, we may make changes to this 
sprinkler rule according to public comments that we receive that are 
related to the sprinkler requirements in the NFPA 2006 edition of the 
LSC.
    We are also soliciting public comment regarding our decision to 
regulate the installation of automatic sprinkler systems through 
Federal rulemaking rather than deferring to State and local 
jurisdictions. There has been discussion within the larger long term 
care community about the advantages and disadvantages of Federal, State 
and local regulation in this area. In particular, we would like public 
comments regarding the necessity, advantages, and disadvantages of this 
Federal regulation requiring sprinklers. We would also like public 
comments regarding the necessity, advantages, and disadvantages of 
deferring to State and local jurisdictions.

II. Provisions of the Proposed Regulations

    For the reasons described in section I of this preamble, we are 
proposing a rule with three main components. First, the regulation 
proposes to add a sunset provision to paragraph (a)(7) in Sec.  484.70 
that would correspond to the phase-in date of the sprinkler 
requirement. This sunset provision would provide that, as of the phase-
in date, we would no longer enforce the requirement that facilities 
have and maintain at least battery-operated smoke alarms. Second, this 
regulation proposes to require every long term care facility to install 
an approved, supervised automatic sprinkler system in accordance with 
the 1999 edition of NFPA 13, Standard for the Installation of Sprinkler 
Systems, throughout the facility if it does not have such a system 
already. Third, the regulation proposes to require every long term care 
facility to test, inspect, and maintain an approved, supervised 
automatic sprinkler system in accordance with the 1998 edition of NFPA 
25, Standard for the Inspection, Testing and Maintenance of Water-Based 
Fire Protection Systems.
    The proposed requirements of this regulation include three 
technical terms: ``approved,'' ``automatic,'' and ``supervised.'' These 
terms are terms of art in the fire safety community and are included in 
NFPA 101, Life Safety Code, with which long term care facilities must 
already comply. There may be, however, individuals who are not familiar 
with the terms. Their definitions are as follows:
     Approved means acceptable to the authority having 
jurisdiction.
     Automatic means that which provides a function without the 
necessity of human intervention.
     Supervised means that the system and particular components 
of the system are monitored by a device with auditory and visual 
signals that are capable of alerting facility staff should the system 
or one of its components become inoperable for any reason.
    The following section describes each of the main components.

A. Sunset Provision

    [If you choose to comment on issues in this section, please include 
the caption ``Sunset Provision'' at the beginning of your comments.]
    We are proposing in Sec.  483.70(a)(7)(iv) to add a sunset 
provision for smoke alarms that would correspond to the phase-in date 
of the sprinkler installation requirement. We are proposing to add this 
provision because otherwise paragraph (a)(7) would be rendered moot by 
this proposed rule. Paragraph (a)(7) requires long term care facilities 
to have at least battery-operated smoke alarms in resident rooms and 
common areas. Facilities that are fully sprinklered in accordance with 
NFPA 13 are exempt from the smoke alarm requirement. Once all 
facilities install sprinkler systems in accordance with the 1999 
edition of NFPA 13, as we are proposing to require, all facilities 
would be exempt from the requirements of paragraph (a)(7). We believe 
that it is proper to state, in regulation, that the smoke alarm 
requirement would cease to be effective upon the phase-in date of the 
sprinkler requirement. Therefore, we propose to add a sunset provision 
to the smoke alarm requirement.

B. Installation

    [If you choose to comment on issues in this section, please include 
the caption ``Installation'' at the beginning of your comments.]
    We are proposing in Sec.  483.70(a)(8)(i) to require long term care 
facilities to install approved, supervised automatic sprinkler systems 
throughout their facilities in accordance with NFPA 13, Standard for 
the Installation of Sprinkler Systems (which we would incorporate by 
reference). If a long term care facility was part of another building, 
such as a hospital, then the building would be required only to have 
sprinklers in the long term care facility section. The NFPA 13 
specifies how to properly design and install sprinkler systems using 
the proper components. The standards of NFPA 13 cover a wide variety of 
factors that are involved in designing and installing sprinkler 
systems. The NFPA 13 is divided into 10 main chapters governing the 
design and installation phases of automatic sprinkler systems. They are 
as follows:
     General Information.
     Classification of Occupancies and Commodities.
     System Components and Hardware.
     System Requirements.
     Installation Requirements.
     Hanging, Bracing, and Restraint of System Piping.
     Design Approaches.
     Plans and Calculations.
     Water Supplies.
     System Acceptance.
    The NFPA 13 is a very detailed document, with a wide variety of 
standards and exceptions to those standards. The document provides many 
options for the design and installation of sprinkler systems so that

[[Page 62961]]

each system may be tailored to the building in which it is installed. 
It is not practical to discuss each and every standard of NFPA 13 in 
this proposed rule. The technical standards of NFPA 13, along with 
helpful background and explanatory text, are in the Automatic Sprinkler 
System Handbook, published by the National Fire Protection Association 
(8th edition. Puchovsky, Milosh T., Ed.; 1999, Quincy, MA). The 
Automatic Sprinkler System Handbook contains more than 1,000 pages of 
information and provides far more information than this proposed rule. 
Therefore, the following section will only briefly discuss the general 
content of each design and installation-related chapter of NFPA 13, to 
provide an overview of the factors that facilities would be required to 
address when designing and installing an automatic sprinkler system.
    Chapter 1, General Information, discusses four separate areas. 
First, it describes the scope of NFPA 13. According to the Automatic 
Sprinkler System Handbook, NFPA 13 provides the minimum requirements 
for sprinkler systems to operate during a fire. These requirements 
focus on the design and installation of sprinkler systems that use 
automatic or open sprinklers that discharge water to suppress or 
control a fire.
    Second, chapter 1 describes the purpose of NFPA 13. The NFPA 13 
focuses on the technical aspects of the design and installation of 
sprinkler systems in order to standardize these areas ``based on sound 
engineering principles, test data, and field experience.'' The purpose 
of NFPA 13 is to ensure through standardization that sprinkler systems, 
when designed and installed in buildings, are designed, assembled, and 
installed in a safe and effective manner using the correct materials 
(for instance, pipes) and information (for instance, system diagrams).
    Third, chapter 1 defines important terms that are used throughout 
the document. Frequently, the terms used in NFPA 13 are specific to 
sprinkler systems, and their definitions may not be available in other 
resources. To avoid any possible confusion, NFPA 13 provides an 
inclusive list of terms and their definitions as they apply to 
sprinkler systems. This list is one way in which NFPA 13 standardizes 
sprinkler system requirements.
    Finally, chapter 1 addresses the level of protection that sprinkler 
systems are expected to provide. Chapter 1-6.1 states that, ``[a] 
building, where protected by an automatic sprinkler system 
installation, shall be provided with sprinklers in all areas.'' The 
success of a sprinkler system depends, in large part, on how large a 
fire is when it first begins and the initial sprinklers are activated. 
If a fire begins in a sprinklered area, then the sprinklers would 
quickly be activated, spraying water on the fire and surrounding areas. 
These procedures would prevent the fire from expanding and would 
therefore protect the occupants of the building. Conversely, if a fire 
begins in one part of a building where there are no sprinklers, then it 
would be allowed to grow due to the lack of sprinklers. Once the fire 
reached an area with sprinklers, the fire would likely be too large for 
the sprinklers to control. Sprinkler systems are not intended to 
prevent a fire in an unsprinklered area from spreading to a sprinklered 
area. Therefore, NFPA 13 requires that sprinklers be installed 
throughout a building. If there is a 2-hour fire wall separating the 
section of a building that contains a long term care facility from the 
rest of the building, then the long term care facility section is 
considered to be its own building. This means that we require only the 
long term care facility section to have sprinklers installed 
throughout. If there is no 2-hour fire wall separating the long term 
care facility from the rest of the building, then the long term care 
facility could choose to install a 2-hour fire wall separation or 
sprinkler the entire building.
    Chapter 2, Classification of Occupancies and Commodities, is 
divided into two sections, one for occupancies and the other for 
commodities. Sprinkler systems are designed using a variety of methods 
and components within the requirements of NFPA 13. The choice of design 
method and components is based on how the building is used. Chapter 2 
identifies the general occupancies and their fire risk levels. It also 
identifies the many different types of items that are stored in 
buildings. These broad classifications of occupancies and commodities 
enable sprinkler system designers to tailor the systems to the 
particular fire safety needs of each building. The classifications also 
help ensure that all buildings, regardless of their differences, are 
fully protected by appropriate sprinkler systems.
    Chapter 3, System Components and Hardware, contains the general 
requirements for the pieces that are used to create a sprinkler system. 
First and foremost, NFPA 13 requires that the system components be 
listed. This provision requires that the components used to build a 
sprinkler system be on a list published by an organization that 
periodically inspects the products on the list. The list states that 
the component meets appropriate designated standards or has been tested 
and found suitable for a specific purpose. Using listed components 
helps ensure that the components, and thus the system, are effective 
and reliable in the event of a fire.
    This chapter also covers the basic requirements for sprinkler 
system components. It requires that sprinklers have certain specified 
discharge and temperature characteristics. The chapter also requires 
that facilities maintain a sufficient number of replacement sprinklers 
for each type of sprinkler used in the facility. In addition to being 
properly maintained, sprinklers may need to be replaced. It is 
important that a facility have enough sprinklers in its possession in 
order to replace any sprinklers immediately, so as not to compromise 
the effectiveness and reliability of the entire system in the event of 
a fire.
    Chapter 3 also contains requirements for escutcheon plates, guards, 
shields, aboveground pipes and tubes, underground pipes, fittings, 
joinings, hangers, valves, fire department connections, waterflow 
alarms, and any coatings that are on system components. All of the 
requirements included in chapter 3 of NFPA 13 exist to ensure that the 
components used to construct sprinkler systems will operate as needed 
in the event of a fire. Some of the above listed components, such as 
pipes, are also addressed in other chapters of NFPA 13.
    Chapter 4, System Requirements, is divided into requirements for 
the different types of sprinkler systems that may be used in a 
facility. The two main categories of sprinkler systems are wet and dry 
pipe systems. Wet pipe systems are, in the most general terms, systems 
in which the pipes contain water. When the heat from a fire triggers 
the sprinklers, the water is immediately discharged. Dry pipe systems 
are filled with air or nitrogen, rather than water. When the air or 
nitrogen is released, the water flows into the pipes and out through 
the sprinklers. Within these two broad sprinkler system categories, 
each of which provides an equal level of fire protection, NFPA 13 
addressed many variations that sprinkler system designers may use to 
address the needs of a particular building. The NFPA 13 leaves the 
choice of which system type and variation to use for each building to 
the sprinkler system designer. This flexibility helps ensure that the 
sprinkler system fully addresses the unique needs of the building and 
its occupants, thereby ensuring that the

[[Page 62962]]

building is optimally protected by its sprinkler system.
    Chapter 5, Installation Requirements, contains the requirements for 
the normal arrangement of sprinkler system components. The actual 
layout of a specific sprinkler system may differ from the normal layout 
described in this chapter of NFPA 13 based on the available water 
supply, type of sprinkler, building construction features, and other 
considerations. However, the basic layout principles of this chapter, 
such as the position and location of sprinklers and valves, would still 
apply. Chapter 5 helps ensure that facilities are adequately protected 
by providing the minimum and maximum limits for sprinkler system 
components. Within this minimum-maximum range, system designers have 
the flexibility to address the fire-safety needs of each facility.
    This chapter includes the specific requirements for the many 
different types of sprinklers. It covers sprinklers ranging from 
standard pendent and upright spray sprinklers to early suppression 
fast-response sprinklers. Each sprinkler type has advantages and 
disadvantages depending on the circumstances under which it is used. 
The sprinkler type that may be appropriate for one facility may not be 
appropriate for another. Therefore, NFPA 13 includes requirements for 
all sprinkler types so that sprinkler system designers have the 
flexibility to properly utilize the right sprinkler type for the job.
    This chapter also includes requirements for specialized facilities, 
such as those that store flammable and combustible materials. These 
requirements would not pertain to long term care facilities because 
health care occupancies are considered to be light hazards. As 
described in chapter 5, light hazard buildings are not included in the 
specialized facilities.
    Chapter 6, Hanging, Bracing, and Restraint of System Piping, 
contains the requirements for the structural issues that are related to 
installing sprinkler piping systems. It identifies acceptable types of 
hangers, how those hangers are installed, how fire main joints are 
restrained, and how pipes are protected in areas where earthquakes 
occur. It is important to ensure that sprinkler system components are 
properly hung. If they are improperly hung, then they may randomly fall 
down and injure someone. In addition, improperly hung components may 
fall under the pressure of water flowing through them during a fire 
situation, thus disabling the sprinkler system and allowing the fire to 
grow.
    Chapter 7, Design Approaches, addresses the minimum amount of water 
necessary to effectively control or suppress a fire. This chapter 
requires that water demands will be determined using the occupancy 
hazard fire control approach and permits special design approaches to 
allow for the use of non-standard components such as early suppression 
fast-response sprinklers. Facilities are required to ensure that there 
is a sufficient amount of water to control or suppress a fire.
    Chapter 8, Plans and Calculations, is an extension of chapter 7 
that focuses on the specific methodologies that can be used to 
calculate and verify a sprinkler system's hydraulic demand and its 
available water supply. Properly calculating these values is a crucial 
step in ensuring that the system has adequate pressure and water to 
control or suppress a fire. If a value is not properly calculated and, 
for example, there is not enough water available for a sprinkler system 
to fully control a fire, then the fire would be allowed to grow and 
spread to other areas. The growth of the fire would jeopardize the 
safety of the building's occupants.
    This chapter also requires that preliminary sprinkler system plans 
be submitted for review to the authority having jurisdiction for 
several reasons. First, submitting the plans before construction begins 
would help ensure that the plans meet all requirements, thus avoiding 
changes at a later date. Also, submitting the plans for review may help 
ensure that there are no errors. A person who is not familiar with the 
plan brings a fresh perspective and may be able to more easily spot 
errors. Finally, submitting plans early helps to avoid 
misunderstandings. It is often difficult to verbally describe how a 
system would be constructed and how it would function. A visual layout, 
which is already required by most authorities having jurisdiction, 
would aid in communication and understanding between all parties, 
including the designer, the authority having jurisdiction, and the 
construction personnel.
    Chapter 9, Water Supplies, further expands on the areas that are 
related to ensuring that a sprinkler system has adequate water to 
control or suppress a fire. It addresses situations where a facility 
may not have an adequate municipal water supply. Facilities may need to 
install a pump to increase water pressure and a tank to store extra 
water to compensate for an inadequate municipal supply. This chapter 
includes the requirements that these additional components would need 
to meet and addresses their proper use in a sprinkler system.
    Chapter 10, Systems Acceptance, requires that sprinkler systems, 
once constructed, be tested. System testing is done in order to verify 
that the basic requirements of all of the previous chapters of NFPA 13 
are satisfied, that the construction of the system is satisfactory, and 
that the system performs as intended. During a system test, facilities 
are required to examine pipes, pipe joints, alarms, and other 
components to ensure that they are properly installed and that they are 
in working order.
    We would require that all long term care facilities that do not 
already have an automatic sprinkler system installed throughout the 
building install such a system in accordance with all of the 
requirements NFPA 13, including but not exclusive to those described 
above.

C. Phase-In

    [If you choose to comment on issues in this section, please include 
the caption ``Phase-in'' at the beginning of your comments.]
    We are soliciting public comment regarding an appropriate phase-in 
timeframe for the installation of an automatic sprinkler system. Such a 
timeframe should provide for this additional fire protection feature as 
quickly as possible without undue burden on long term care facilities.
    We are soliciting public comment regarding a phase-in period for 
this requirement because we believe that it would require a substantial 
amount of time for a facility to plan and install an automatic 
sprinkler system. A facility would likely decide to use the services of 
a fire safety consultant to design a system that met its needs. Simply 
securing these services could be a time-consuming process. In addition, 
a facility would probably need to reallocate its resources and possibly 
secure additional capital resources to implement this requirement. This 
part of the preparation would also take a substantial amount of time to 
complete. After preparing for the installation, a facility would 
actually have to install the system. Installation may require removing 
ceilings, cutting walls, and numerous other construction tasks. 
Installation may also require temporarily relocating residents, either 
within the facility or to another facility, while the sprinkler system 
was being installed. We believe that most facilities would choose to 
install sprinklers in their existing facility, and would therefore go 
through this preparation and implementation process.

[[Page 62963]]

    However, there may be some facilities that choose to relocate to a 
building that already has a sprinkler system installed throughout the 
building. These facilities may have planned to relocate to another 
building for reasons unrelated to the proposed sprinkler requirement. 
The decision to move, however, may be prompted by the proposed 
requirements. For some facilities it may be easier to move rather than 
to install such a system in their current location. Locating, 
purchasing or constructing, and moving a facility would be a lengthy 
process. A phase-in period, we believe, would allow facilities that 
choose to relocate to a sprinklered building the chance to do so 
instead of installing sprinklers in an existing building.
    Given these considerations, we believe that requiring a long term 
care facility to install an automatic sprinkler system throughout its 
building requires a phase-in period. We would encourage facilities that 
were able to install an automatic sprinkler system to do so as soon as 
possible, rather than delay the project until the effective date of a 
phase-in period drew near.

D. Maintenance

    [If you choose to comment on issues in this section, please include 
the caption ``Maintenance'' at the beginning of your comments.]
    We are proposing in Sec.  483.70(a)(8)(ii) to require that all long 
term care facilities test, inspect, and maintain an approved, 
supervised automatic sprinkler system in accordance with the 1998 
edition of NFPA 25, Standard for the Inspection, Testing, and 
Maintenance of Water-Based Fire Protection Systems, which we propose to 
incorporate by reference. Proper inspections, tests, and maintenance of 
sprinkler systems are critical to ensuring that sprinkler systems 
function properly on a continuous basis. Fires are, by nature, 
unpredictable, and sprinkler systems must be operable at all times to 
ensure that buildings are protected whenever and wherever fires occur.
    National Fire Protection Association 25 covers a wide variety of 
testing, inspection, and maintenance requirements for the numerous 
types of sprinkler systems that facilities may install and the 
auxiliary equipment that may be necessary for some facilities. The 
general contents of the chapters of NFPA 25 are as follows: Chapter 1, 
General Information, describes the scope of the document; describes and 
defines key ideas and terms; requires that facilities maintain records 
of inspections, tests, and maintenance activities; establishes who is 
responsible for ensuring that all inspection, testing, and maintenance 
duties are performed; and requires that all inspection, testing, and 
maintenance activities be conducted in a safe manner.
     Chapters 2, Sprinkler Systems; 3, Standpipe and Hose 
Systems; 7, Water Spray Fixed Systems; and 8, Foam-Water Sprinkler 
Systems, address the specific inspection, testing, and maintenance 
requirements for the different types of sprinkler systems that 
facilities may use, based upon their needs and circumstances.
     Chapter 9, Valves, Valve Components, and Trim, focuses on 
the inspection, testing, and maintenance of the valves, valve 
components, and trim that are used to construct these systems.
     Chapters 4, Private Fire Service Mains; 5, Fire Pumps, and 
6, Water Storage Tanks, address the inspection, testing, and 
maintenance requirements for auxiliary equipment that may be necessary 
for a particular facility.
     Chapter 10, Obstruction Investigation, provides the 
minimum requirements for conducting investigations of possible sources 
of materials that can block pipes and prevent them from operating 
properly.
     Chapter 11, Impairments, assures that adequate measures 
are taken when a sprinkler system is wholly or partially shutdown, 
either on an emergency or preplanned basis, to ensure that increased 
fire safety risks are minimized and that the shutdown is as short in 
duration as possible.
     Chapter 12, Referenced Publications, provides a list of 
other NFPA publications that are referred to within NFPA 25.
    Facilities would be required by this proposed rule to comply with 
all applicable chapters of NFPA 25 once they had installed their 
sprinkler systems in accordance with the requirements of NFPA 13.

III. Collection of Information Requirements

    Under the Paperwork Reduction Act of 1995, we are required to 
provide 60-day notice in the Federal Register and solicit public 
comment before a collection of information requirement is submitted to 
the Office of Management and Budget (OMB) for review and approval. In 
order to fairly evaluate whether an information collection should be 
approved by OMB, section 3506(c)(2)(A) of the Paperwork Reduction Act 
of 1995 requires that we solicit comment on the following issues:
     The need for the information collection and its usefulness 
in carrying out the proper functions of our agency.
     The accuracy of our estimate of the information collection 
burden.
     The quality, utility, and clarity of the information to be 
collected.
     Recommendations to minimize the information collection 
burden on the affected public, including automated collection 
techniques.
    We are soliciting public comment on each of these issues for the 
following sections of this document that contain information collection 
requirements:
    In summary, Sec.  483.70(a)(8)(ii) requires that all long term care 
facilities test, inspect, and maintain an approved, supervised 
automatic sprinkler system in accordance with the 1998 edition of NFPA 
25, Standard for the Inspection, Testing, and Maintenance of Water-
Based Fire Protection Systems. This section states that facilities 
would be required by this proposed rule to comply with all applicable 
chapters of NFPA 25 once they have installed their sprinkler systems in 
accordance with the requirements of NFPA 13.
    We believe that facilities would utilize the services of a 
contractor for all inspection, testing, and maintenance activities, 
including documentation of those activities. Therefore, no burden would 
be associated with the development of the documentation. There would, 
however, be a burden associated with the time and effort required by 
facilities to maintain documentation of inspections, tests, and 
maintenance activities in accordance with the standards outlined in the 
NFPA 25. This burden would be the time it takes to file the 
documentation.
    The burden associated with these requirements is estimated to be 1 
hour per long term care facility. Therefore, we estimate it would take 
2,462 total annual hours (1 hour x 2,462 estimated affected long term 
care facilities) to satisfy this burden.
    If you comment on these information collection and recordkeeping 
requirements, please mail copies directly to the following:
    Centers for Medicare & Medicaid Services, Office of Strategic 
Operations and Regulatory Affairs, Regulations Development Group, Attn: 
Bill Parham, CMS-3191-P, Room C4-26-05, 7500 Security Boulevard, 
Baltimore, MD 21244-1850; and Office of Information and Regulatory 
Affairs, Office of Management and Budget, Room 10235, New Executive 
Office Building, Washington, DC 20503, Attn: Carolyn Lovett, CMS Desk 
Officer, CMS-3191-P, [email protected] fax (202) 395-6974.

[[Page 62964]]

IV. Regulatory Impact Statement

    [If you choose to comment on issues in this section, please 
indicate the caption ``Regulatory Impact Statement'' at the beginning 
of your comment.]

A. Overall Impact

    We have examined the impact of this rule as required by Executive 
Order 12866 (September 1993, Regulatory Planning and Review), the 
Regulatory Flexibility Act (RFA) (September 19, 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 (as amended by Executive Order 13258, which 
merely reassigns responsibility of duties) 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 proposed rule, and we have 
determined that this rule would not meet the criteria to be considered 
economically significant, and it would not meet the criteria for a 
major rule.
    This determination is based on a variety of cost factors and phase-
in lengths. As a brief summary, we estimate that this proposed rule 
would cost $47.8 to $69.9 million, $73.5 to $107.5 million, and $107.7 
to $157.6 million annually, based on phase-in periods of 10 years, 7 
years, and 5 years, respectively.
    The estimated cost range for installing a sprinkler system 
throughout an existing building for an average size unsprinklered 
facility (50,000 square feet) would be $205,000 to $307,500, depending 
on the cost per square foot. The projected installation cost of this 
proposed requirement would account for approximately 0.4 to 0.6 percent 
of an average facility's actual revenue over a 10-year period, 0.6 to 
0.9 percent over a 7-year period, and 0.8 to 1.2 percent over a 5-year 
period.
    The estimated cost range for installing a sprinkler system 
throughout an existing building for an average size partially 
sprinklered facility (37,500 square feet) would be $153,750 to 
$230,625, depending on the cost per square foot. The projected 
installation cost of this proposed requirement would account for 
approximately 0.3 to 0.5 percent of an average facility's actual 
revenue over a 10-year period, 0.4 to 0.7 percent over a 7-year period, 
and 0.6 to 0.9 percent over a 5-year period.
    The basis for these estimates is fully described in section IV.B.2 
of this proposed rule. In that section, we estimate that 1,947 
partially sprinklered facilities would, over a 10 year phase-in period, 
install sprinklers throughout their buildings in accordance with this 
proposed rule, at a cost of $75,338 to $416,250 per facility, based on 
size and installation cost variables. The average yearly installation 
cost for all partially sprinklered facilities would be $37.2 million to 
$54.1 million. This determination is further based on the estimate that 
515 unsprinklered facilities would install sprinklers, at a cost of 
$100,450 to $615,000 per facility. The average yearly installation cost 
for all unsprinklered facilities would be $10.5 million to $15.8 
million. The average yearly installation cost estimates are based on an 
example of a 10-year phase-in period.
    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 small government 
jurisdictions. Most hospitals and most other providers and suppliers 
are small entities, either by nonprofit status or by having revenues of 
$6 million to $29 million in any 1 year. For purposes of the RFA, most 
entities affected by this proposed rule are considered small businesses 
according to the Small Business Administration's size standards, with 
total revenues of $29 million or less in any 1 year (for detail, see 65 
FR 69432). Individuals and States are not included in the definition of 
a small entity.
    According to our statistics, long term care facilities, all of 
which would be required to have sprinkler systems throughout their 
buildings, earned a total of $89.6 billion in 1999 (http://www.cms.hhs.gov/statistics/nhe/historical/t7.asp). According to the 
National Nursing Home Survey: 1999 Summary (http://www.cdc.gov/nchs/data/series/sr_13/sr13_152.pdf), there were 18,000 nursing facilities 
in operation at that time.

    (Note:
    In the following paragraph the terms ``average facility'' and 
``small facility'' are strictly based on a revenue metric. That is, 
the terms only describe the amount of revenue that facilities would 
have.)

    Long term care facilities vary in a number of ways, ranging from 
the number of residents to the predominant source of payment for those 
residences. For the purposes of our general analysis, we chose to 
assess the financial impact of this proposed rule on an average 
(median) facility and a much smaller facility (50 percent below the 
median). An average facility had approximately $4,977,778 in revenue in 
1999. A facility with revenue 50 percent below this average earned 
$2,488,889. For example, over a 5-year, 7-year, and 10-year period, an 
average facility would earn $24,888,890, $34,844,446, and $49,777,780, 
respectively. The small facility would earn $12,444,445, $17,422,223, 
and $24,888,890 over those same time periods.
    The projected cost of this proposed requirement would account for 
0.8 to 1.2 percent of a typical small facility's actual revenue over 
the 5-year example period, 0.5 to 0.9 percent of such facility's actual 
revenue over the 7-year example period, or 0.4 to 0.7 percent of such 
facility's actual revenue over the 10-year example period. We are 
assuming that a small facility's square footage was 50 percent less 
than an average facility's square footage because there is a strong 
correlation between the size of a facility, as reflected by the number 
of resident beds it has, and the facility's revenue level. We believe 
that, given these estimates, this proposed rule would not have a 
significant impact on a substantial number of small entities.
    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 603 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 of a Metropolitan 
Statistical Area and has fewer than 100 beds.
    We know that 8.41 percent of long term care facilities, 1,514 
nationwide, are located in hospitals, but we do not know how many of 
those hospitals are small rural hospitals. As described in section 
IV.B.2 of this proposed rule, 75.89 percent of long term care 
facilities nationwide report that they are fully sprinklered. An 
additional 15.2 percent report that they are partially sprinklered, 
4.14 percent report that they are not sprinklered, and 4.77 percent did 
not report any information about sprinklers. From this information, we 
estimate that, of the 1,514 long term care facilities located in 
hospitals, 1,204 are fully sprinklered, 241 are partially sprinklered, 
and 69 are not sprinklered. We assume that long term care facilities 
that are located in small rural hospitals are small as well.
    For a small unsprinklered facility with less than 50 resident beds, 
we

[[Page 62965]]

estimate that purchasing and installing sprinklers would cost $100,450 
(at $4.10 per square foot), $134,750 (at $5.50 per square foot), or 
$150,675 (at $6.15 per square foot). If the small unsprinklered 
facility met the revenue criteria for a smaller facility as described 
above, then the projected cost of this proposed requirement would 
account for 0.8 to 1.2 percent of the facility's revenue over the 5-
year example period, 0.5 to 0.9 percent of the facility's revenue over 
the 7-year example period, or 0.4 to 0.7 percent of the facility's 
revenue over the 10-year example period.
    For a small partially sprinklered facility with less than 50 
resident beds, we estimate that purchasing and installing sprinklers 
would cost $75,338 (at $4.10 per square foot), $101,063 (at $5.50 per 
square foot), or $113,006 (at $6.15 per square foot). If the small 
partially sprinklered facility met the revenue criteria for a smaller 
facility as described above, then the projected cost of this proposed 
requirement would account for 0.7 to 0.9 percent of the facility's 
revenue over the 5-year example period, 0.4 to 0.6 percent of the 
facility's revenue over the 7-year example period, or 0.3 to 0.5 
percent of the facility's revenue over the 10-year example period.
    Therefore, we believe that this proposed rule would not have a 
significant impact on the operations of a substantial number of small 
rural hospitals.
    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 proposed rule would not have an effect on 
State, local, or tribal governments because we do not propose to 
require State, local, or tribal governments to take any action. Based 
on our example of a 10-year phase-in period, we estimate that the 
private sector costs of this proposed regulation would be $47.8 million 
to $69.9 million in any 1 year for installation and an additional 
$1,019 per facility for maintenance. After the initial installation 
period, we estimate that the private sector costs of this proposed 
regulation would $2,508,778 annually for maintenance. This estimate 
would not approach the $110 million threshold; therefore, this section 
does not assess the anticipated costs and benefits as required by 
section 202 of the Unfunded Mandates Reform Act of 1995.
    Executive Order 13132 establishes certain requirements that an 
agency must meet when it promulgates a proposed rule (and subsequent 
final rule) that imposes substantial direct requirement costs on State 
and local governments, preempts State law, or otherwise has Federalism 
implications. This proposed regulation would not have any Federalism 
implications.

B. Anticipated Effects

1. Benefits

Decreasing Loss of Life

    We believe that installing an approved, supervised automatic 
sprinkler system in accordance with NFPA 13, Standard for the 
Installation of Sprinkler Systems, throughout a long term care facility 
would have a positive impact on resident safety. According to the July 
2004 GAO report discussed above, installing sprinklers decreases the 
chances of fire-related deaths by 82 percent. In unsprinklered 
facilities, there are 10.8 deaths per 1,000 fires. In sprinklered 
facilities, there are 1.9 deaths per 1,000 fires.
    The 2003 fires in Hartford and Nashville resulted in more fire 
related deaths (31) than there were for several previous years 
combined. Both of these fires occurred in unsprinklered buildings. If 
sprinklers had been installed in these facilities, and if they were 
properly maintained, we estimate that 82 percent of those fire-related 
deaths may have been prevented, based on an 82 percent reduction in the 
chances of death occurring in a sprinklered facility. We estimate that, 
based on this reduction, 25 (82 percent of 31 deaths = 25) lives could 
have been saved by sprinklers in these two fires, or 13 lives in the 
Hartford fire and 12 lives in the Nashville fire.
    In 1997, the average age at admission for long term care facility 
residents was 82.6 years, and 51 percent of long term care facility 
residents were 85 years of age or older (The Changing Profile of 
Nursing Home Residents: 1985-1997. Sahyoun NR, Pratt LA, Lentzner H, 
Dey A, Robinson KN. Aging Trends; No. 4. National Center for Health 
Statistics. Hyattsville, MD; 2001). These numbers reflect the overall 
demographic trend in long term care facilities toward an older patient 
population. For the purposes of our analysis, we assume that the 
average age of long term care facility residents is 85. Also in 1997, 
the life expectancy for an individual at age 85 was 6.3 years (Older 
Americans 2000: Key Indicators of Well-Being. Federal Interagency Forum 
on Aging-Related Statistics. http://www.agingstats.gov/chartbook2000/tables-healthstatus.html). This means that an 85-year-old long term 
care facility resident could expect to live an average of 6.3 more 
years.
    Based on the assumption that the average age of long term care 
facility residents is 85 with a life expectancy at age 85 of 6.3 years, 
we estimate that sprinklers in these two fires would have added 157.5 
life years (25 lives saved x 6.3 life years per life saved).
    While the number of deaths in these two fires is not typical of the 
number of fire-related deaths in long term care facilities as a whole, 
we believe that they should still be taken into consideration when 
discussing the impact on the general long term care facility resident 
population.
    In a typical year from 1994 through 1999, about 2,300 long term 
care facilities report structural fires (July 2004 GAO report). For the 
purposes of our analysis, we estimate that 3,688 long term care 
facilities currently do not have sprinklers installed throughout the 
buildings. (See section IV.B.2. of this proposed rule).
    We estimate that 25 percent (575) of the 2,300 facilities that 
reported fires did not have sprinklers installed throughout their 
buildings. This estimate is based on the results of the 2004 GAO report 
and a nationwide survey of long term care facilities as described in 
section IV.B.2 of this proposed rule.
    Based on the rate of 10.8 deaths per 1,000 unsprinklered facility 
fires, we estimate that 6 deaths occurred in 575 fires in unsprinklered 
facilities annually. (575 facilities = 57.5 percent of 1,000 
facilities; 57.5 percent of 10.8 deaths = 6 deaths). This estimate 
differs slightly from the average number of deaths (5) that occurred 
due to long term care facility fires, as presented in the July 2004 GAO 
report, because this estimate predicts the number of deaths that should 
statistically occur, based on established percentages, rather than the 
average number of deaths that occurred annually in the past. This 
estimate is prospective, whereas the 2004 GAO figure is retrospective.
    If these unsprinklered or partially sprinklered facilities install 
sprinklers throughout their buildings and those sprinklers are properly 
maintained, then we estimate that there would be 1 death (57.5 percent 
x 1.9 deaths per 1,000 sprinklered facility fires = 1) in those same 
575 facilities. Installing sprinklers in unsprinklered buildings would, 
based on these estimates, save 5 lives annually.

[[Page 62966]]



                 Table 1.--Estimated Annual Fire Deaths
------------------------------------------------------------------------
  Number of estimated      Number of estimated
  annual fire-related      annual fire-related      Number of estimated
deaths in unsprinklered      deaths if those       annual lives saved by
     long term care          facilities were            sprinklers
       facilities              sprinklered
------------------------------------------------------------------------
                 6                        1                        5
------------------------------------------------------------------------

    Given the estimate described above that installing and maintaining 
sprinkler systems in existing long term care facilities would save 5 
lives annually, we estimate that sprinklers would save 31.5 life years 
annually (5 lives saved x 6.3 years gained per life).

                          Table 2.--Life Years
------------------------------------------------------------------------
  Number of life years gained per        Number of life years gained
             life saved                            annually
------------------------------------------------------------------------
                     6.3                                 31.5
------------------------------------------------------------------------

    There are a wide variety of estimates regarding the statistical 
value of a quality-adjusted life year. That is, there are numerous 
studies that attempt to quantify how much individuals and society are 
willing to pay to gain a single, quality year of life, known as a 
quality-adjusted life year. These studies, using one or more of four 
different methodologies, have estimated that individuals and society 
are willing to pay between $50,000 and $450,000 for a quality-adjusted 
life year. Due to the fact that there is no widely accepted standard 
value, we have refrained from estimating the statistical value of each 
life year that would be gained as a result of a final rule requiring 
sprinklers in all long term care facilities.

Decreasing Loss of Property

    As a result of installing and properly maintaining sprinklers, we 
anticipate that facilities that experience fires would lose less 
property. While the amount of property damage and loss that would be 
prevented by installing and maintaining sprinklers is not readily 
quantifiable, we believe that the amount of damage prevented would be 
substantial and that this prevention would benefit affected long term 
care facilities.

Decreasing Fire Recovery Disruption and Time

    In addition to losing less property due to fire, we anticipate that 
long term care facilities that experience fires would be able to 
recover more quickly with fewer disturbances to residents. Because 
sprinkler heads generally activate only in the area immediately near 
the fire source, the area that would be damaged by a fire would likely 
be much smaller in a sprinklered building than it would be in a 
building without sprinklers, thus reducing recovery costs. In addition, 
by limiting the area affected by the fire, there would be fewer 
disturbances to residents during the recovery time. While we cannot 
quantify these benefits to long term care facilities and their 
residents, we believe that they are substantial and worth considering.
2. Costs
    This proposed rule would require a long term care facility to 
install an approved, supervised automatic sprinkler system in 
accordance with NFPA 13, Standard for the Installation of Sprinkler 
Systems, throughout the building. This proposed rule would also allow 
long term care facilities to install automatic sprinkler systems within 
a phase-in period to be determined based on public comments. As 
described in section IV.B.2 of this proposed rule, we set forth the 
various contingencies, assumptions, and data sources that we used to 
develop our estimates. In addition, in section IV.B.2, we present our 
final estimates based on those contingencies, assumptions, and data 
sources.
Phase-In Period
    We are soliciting public comment regarding the length of a phase-in 
period to allow long term care facilities to install sprinklers. The 
cost of installing sprinklers is substantial, and we do not expect long 
term care facilities to have $75,000 to $615,000, depending on the size 
of the area requiring sprinklers and the cost of installing sprinklers, 
immediately available to purchase and install sprinklers. We believe 
that a phase-in period would mitigate the cost of installing sprinklers 
by allowing facilities time to reprioritize and redistribute resources. 
At this time, we do not know what would be the exact length of the 
phase-in period.
    For illustrative purposes only, we have estimated the annual costs 
of this proposed rule for 5-year, 7-year, and 10-year phase-in periods. 
While we would encourage all facilities to immediately begin the 
process of purchasing and installing sprinklers, we understand that 
some facilities would choose to wait until the very end of a phase-in 
period to begin this process. Therefore, we expect that the full cost 
of this proposed rule would be distributed over a period of several 
years as facilities nationwide would likely stagger their installation 
schedules to meet their individual needs and circumstances.

Number and Size of Affected Facilities

    We estimate that the installation provision of this proposed 
regulation would, over a 10-year phase-in period, impact 1,947 
partially sprinklered and 515 unsprinklered long term care facilities. 
We based this estimate on several elements.
    The July 2004 GAO report on long term care facility fire safety 
estimated that 20 to 30 percent of long term care facilities do not 
have sprinklers throughout the facility and would therefore be subject 
to the provisions of this regulation.
    We conducted a survey of all 18,005 long term care facilities. 
Facilities in 46 States and the District of Columbia responded to the 
survey. Results from the four States that did not respond have been 
extrapolated based on the pattern of responses from other States. The 
survey found that 75.89 percent of long term care facilities are fully 
sprinklered. In addition, 15.2 percent of long term care facilities 
were partially sprinklered, and 4.14 percent did not have any 
sprinklers. An additional 4.77 percent of facilities is unknown. The 
4.77 percent of unknown facilities has been distributed, based on the 
previously cited percentages, into the categories for fully, partially, 
and non-sprinklered.
    Of the 18,005 long term care facilities, we estimate that 14,317 
are fully sprinklered. In addition, we estimate that there are 2,867 
partially sprinklered facilities and 782 non-sprinklered facilities 
(results of survey + extrapolated results for non-responding States + 
extrapolated unknown results).
    Distributing numbers based on percentages requires rounding, and 
can result in facilities not being fully accounted for. The above 
results do not account for 39 facilities. For purposes of our analysis, 
we assume that these 39 facilities are non-sprinklered, for a total of 
821 non-sprinklered facilities.
    Therefore, we estimate that 14,317 facilities would not be impacted 
by this proposed rule because they already have sprinklers installed 
throughout their

[[Page 62967]]

buildings. We estimate that 3,688 facilities could potentially be 
impacted by this proposed rule because they do not have sprinklers 
installed throughout their buildings.
    We estimate that, of those 3,688 facilities without sprinklers 
throughout, 435 partially sprinklered facilities, and 170 non-
sprinklered facilities are located either in States that have their own 
long term care sprinkler requirements (3) or in States that would adopt 
the 2006 edition of the NFPA 101, Life Safety Code (LSC) (12).
    The NFPA included a requirement that all existing long term care 
facilities install sprinklers throughout their buildings in the 2006 
edition of the LSC. The NFPA already requires that sprinkler systems 
that are installed in all buildings be maintained according to NFPA 25.
    Although Federal regulations require the 2000 edition of the LSC, 
12 States have independently updated their requirements to adopt the 
2003 edition of the LSC. We assume that these States would continue to 
adopt the most recent version of the LSC.
    The 2006 edition has already been released to the public, ahead of 
any final CMS rule requiring sprinklers in all long term care 
facilities. In adopting the 2006 edition of the LSC, those States would 
require the long term care facilities within their jurisdictions to 
install and maintain sprinklers absent this proposed rule. Therefore, 
facilities in those States would not be impacted by this proposed rule.
    In addition, we assume that 2 percent of existing long term care 
facilities would be replaced or fully renovated each year as part of 
the natural cycle of facilities upgrading their accommodations. 
Therefore, of the initial 2,867 partially sprinklered and 821 
unsprinklered facilities, we assume that 57 partially sprinklered and 
16 unsprinklered facilities would be replaced or fully renovated each 
year. If there were to be a 10-year phase-in period, then 570 partially 
sprinklered and 160 unsprinklered buildings would likely be replaced or 
fully renovated before the phase-in period would expire.
    Of these 570 and 160 facilities, we estimate that 15 percent are in 
the States that have independent sprinkler requirements or would adopt 
the 2006 edition of NFPA 101, and would therefore require sprinklers 
absent Federal rulemaking. These 85 and 24 facilities (15 percent of 
570 and 160 facilities) are captured in the 435 partially sprinklered 
and 170 unsprinklered facilities already excluded from our impact 
analysis, as described above. That leaves an estimated 485 existing 
partially sprinklered and 136 unsprinklered facilities that would be 
naturally replaced by new facilities with sprinklers or fully renovated 
within, for example, a 10-year phase-in period (570 naturally replaced 
or renovated facilities -85 in States that would require sprinklers 
absent Federal rulemaking = 485 facilities; 160 naturally replaced 
facilities - 24 in States that would require sprinklers absent Federal 
rulemaking = 136 facilities). Likewise, if there were to be a 7-year 
phase-in period, then 399 partially sprinklered and 112 unsprinklered 
buildings would likely be replaced or fully renovated before the phase-
in period would expire. If there were to be a 5-year phase-in period, 
then 285 partially sprinklered and 80 unsprinklered buildings would 
likely be replaced or fully renovated before the phase-in period would 
expire.
    This brings the total number of estimated affected partially 
sprinklered facilities to 1,947 (original 2,867 existing partially 
sprinklered facilities - 435 facilities in States that would require 
sprinklers absent Federal rulemaking - 485 existing facilities that 
would be replaced or renovated naturally over a 10 year phase-in period 
= 1,947 partially sprinklered facilities that would be affected by this 
proposed rule). The total number of estimated affected unsprinklered 
facilities is 515 (original 821 existing unsprinklered facilities - 170 
facilities in States that would require sprinklers absent Federal 
rulemaking - 136 existing facilities that would be replaced naturally 
over a 10-year phase-in period = 515 unsprinklered facilities that 
would be affected by this proposed rule).
    The same methodology was used to identify the number of affected 
unsprinklered and partially sprinklered long term care facilities over 
7-year and 5-year phase-in periods. These estimates, displayed in table 
3, are not the same as the estimates for a 10-year phase-in period 
because fewer facilities would be naturally replaced or remodeled 
during a 7-year or 5-year phase-in than during a 10-year phase-in. 
Therefore, more facilities would be affected by this proposed rule.
    Based on discussions with the American Health Care Association and 
State survey agencies, an average size unsprinklered long term care 
facility has 100 resident beds and is 50,000 square feet (50,000/100 or 
500 square feet per bed). Much larger long term care facilities have 
recently been constructed. However, as newly constructed facilities, 
they are already required to have sprinklers installed throughout their 
buildings. Using the methodology described above, table 3, based on 
data from our sprinkler survey and our Certification and Survey 
Provider Enhanced Reporting system, shows the size and number of 
affected unsprinklered facilities over three different phase-in 
periods.

                              Table 3.--Number of Unsprinklered Facilities Affected
----------------------------------------------------------------------------------------------------------------
                                   Less than 50                                     200 or more
                                    beds (less      50-99 beds     100-199 beds    beds (99,501    Total number
                                    than 24,500   (24,501-49,500  (49,501-99,500    or more sq.     of affected
                                      sq. ft)         sq. ft)         sq. ft)           ft)         facilities
----------------------------------------------------------------------------------------------------------------
10 year phase-in................             102             220             168              25             515
7 year phase-in.................             110             238             181              27             556
5 year phase-in.................             116             249             190              28             583
----------------------------------------------------------------------------------------------------------------

    An average partially sprinklered facility also has 100 beds and is 
50,000 square feet. Table 4 shows the size and number of affected 
partially sprinklered facilities over three different phase-in periods.

[[Page 62968]]



                          Table 4.--Number of Partially Sprinklered Facilities Affected
----------------------------------------------------------------------------------------------------------------
                                   Less than 50                                     200 or more
                                    beds (less      50-99 beds     100-199 beds    beds (99,501    Total number
                                    than 24,500   (24,501-49,500  (49,501-99,500    or more sq.     of affected
                                      sq. ft)         sq. ft)         sq. ft)           ft)         facilities
----------------------------------------------------------------------------------------------------------------
10 year phase-in................             253             561             745             388           1,947
7 year phase-in.................             272             603             801             417           2,093
5 year phase-in.................             285             631             838             436           2,190
----------------------------------------------------------------------------------------------------------------

    These buildings, however, would not require sprinklers to be 
installed in all areas because the building is already partially 
sprinklered. For purposes of this impact analysis, we assume that a 
partially sprinklered building is 25 percent sprinklered, leaving 75 
percent of the building to be sprinklered in accordance with this 
proposed rule. Buildings in this category may have more or less 
sprinkler coverage than this assumption.
    For facilities with fewer than 50 resident beds, we estimate that 
sprinklers would be installed for 18,375 square feet (75 percent of 
maximum square footage in this size category). For facilities with 50 
to 99 resident beds, we estimate that sprinklers would be installed for 
27,750 square feet (75 percent of average square footage in this size 
category). For facilities with 100 to 199 resident beds, we estimate 
that sprinklers would be installed for 55,875 square feet (75 percent 
of average square footage in this size category). For facilities with 
more than 199 resident beds, we estimate that sprinklers would be 
installed for 75,000 square feet (75 percent of minimum square footage 
in this size category).

Installation Cost Per Square Foot

    Purchasing and installing a sprinkler system according to the 
requirements of NFPA 13 encompasses a wide variety of factors, 
including those briefly described in section II of this proposed rule. 
Within the requirements of NFPA 13, there are numerous variables that 
can impact the purchase and installation costs for a facility. Each 
facility has different needs that must be addressed when purchasing and 
installing a sprinkler system, and this cost estimate cannot address 
each particular need or combination of needs. Therefore, we are basing 
our cost estimates not on the individual requirements of NFPA 13 for an 
individual facility, but on a bundled purchase and installation 
estimate for an average facility, as described below. Individual 
facilities may have costs above or below those of this average facility 
due to facility size and facility-specific sprinkler system needs. Long 
term care facilities that are based in other health care facilities, 
such as hospitals, would be required by this proposed rule only to have 
sprinklers in the long term care facility section of the building. 
Therefore, we do not believe that facility-based long term care 
facilities would have different installation costs than freestanding 
facilities with similar resident bed and square footage numbers.
    We estimate that it would cost between $4.10 and $6.15 per square 
foot to purchase and install a sprinkler in an existing facility, with 
an average cost of $5.50 per square foot. According to the Architects, 
Contractors, Engineers Guide to Construction Costs, 2004 Edition by 
Design and Construction Resources, purchasing and installing sprinklers 
in new long term care facilities costs $2.05 per square foot. This cost 
estimate incorporates all contractor costs such as labor, materials, 
and a 20 percent overhead fee; 35 percent taxes and insurance on labor, 
equipment, and tools; and 5 percent sales tax.
    Although we recognize that capital and interest costs may increase 
the cost of purchasing and installing automatic sprinkler systems in 
long term care facilities, these costs are not included in our 
estimates. Due to the individual circumstances of each facility, 
unknown future interest rates, and various other factors, we are unable 
to accurately estimate the capital and interest costs of installing 
sprinkler systems. Therefore, we have chosen to exclude these costs 
from our estimates while acknowledging that they do exist and will play 
a role to some degree in the decisions of long term care facilities 
that would be affected by this proposed rule.
    Renovation costs are typically two to three times higher than new 
construction costs because installing the sprinkler system must be 
completed in a piecemeal fashion while the building remains occupied. 
This increases the length of the construction time and, thus, increases 
its costs. In addition, renovations to add sprinkler systems often 
require upgrading or adding related building components such as water 
lines and fire pumps. The upgrades and additions require more capital 
investment and construction time. Increased investment and construction 
time also increases costs.
    For purposes of this impact analysis, we assume that renovating a 
typical facility to add sprinklers would cost approximately 2.5 times 
more than purchasing and installing sprinklers in new long term care 
facilities. We do not have a specific source for this assumption; 
therefore, we have also included cost estimates for facilities that 
would pay $4.10 per square foot (2 times the cost of installing 
sprinklers in new construction) and $6.15 per square foot (3 times the 
cost of installing sprinklers in new construction).

Cost Estimates

    The cost estimates for both unsprinklered and partially sprinklered 
facilities are presented in the following tables. They are based on all 
of the above-described estimates about the number of facilities that 
would be affected, the sizes of those facilities, and the installation 
costs per square foot. We note again that the number of facilities that 
would be affected by this rule changes based on the length of the 
phase-in period because fewer facilities would be naturally replaced or 
remodeled during a 7-year or 5-year phase-in than during a 10-year 
phase-in. Therefore, as the phase-in time is shortened, more facilities 
would be affected by this rule, increasing the estimated cost impact of 
this proposed rule.
    Based on the above-described estimates and figures, we estimate 
that an unsprinklered facility meeting the following size 
specifications would have the following costs to comply with the 
installation requirements of this proposed regulation. (See table 5)

[[Page 62969]]



                          Table 5.--Total Installation Cost per Unsprinklered Facility
----------------------------------------------------------------------------------------------------------------
                                                                     $4.10 per       $5.50 per       $6.15 per
                                                                    square foot     square foot     square foot
----------------------------------------------------------------------------------------------------------------
> 50 beds (24,500 square feet)..................................        $100,450        $134,750        $150,675
50-99 beds (37,000 square feet).................................         151,700         203,500         227,550
100-199 beds (74,500 square feet)...............................         305,450         409,750         458,175
<199 beds (100,000 square feet).................................         410,000         550,000         615,000
Total cost for 515 facilities (10 year phase-in)................     105,185,500     141,102,500     157,778,250
Total cost for 556 facilities (7 year phase-in).................     113,510,550     152,270,250     170,265,825
Total cost for 583 facilities (5 year phase-in).................     118,941,000     159,555,000     178,411,500
----------------------------------------------------------------------------------------------------------------

    We estimate that a partially sprinklered facility meeting the 
following size specifications would have the following costs to comply 
with the installation requirements of this proposed regulation. (See 
table 6)

                      Table 6.--Total Installation Cost per Partially Sprinklered Facility
----------------------------------------------------------------------------------------------------------------
                                                                     $4.10 per       $5.50 per       $6.15 per
                                                                    square foot     square foot     square foot
----------------------------------------------------------------------------------------------------------------
> 50 beds (18,375 square feet)..................................         $75,338        $101,063        $113,006
50-99 beds (27,750 square feet).................................         113,775         152,625         170,663
100-199 beds (55,875 square feet)...............................         229,088         307,313         343,631
More than 199 beds (75,000 square feet).........................         307,500         412,500         416,250
Total cost for 1,947 facilities (10 year phase-in)..............     372,868,849     500,189,749     541,842,556
Total cost for 2,093 facilities (7 year phase-in)...............     400,825,249     537,692,224     582,472,102
Total cost for 2,190 facilities (5 year phase-in)...............     419,309,099     562,487,624     609,342,841
----------------------------------------------------------------------------------------------------------------

    Based on the different installation costs and phase-in lengths 
presented in this section, we estimate that the combined installation 
cost for all impacted long term care facilities (unsprinklered and 
partially sprinklered) would range from $478,054,349 to $787,754,341. 
(See table 7)

                              Table 7.--Total Installation Cost for All Facilities
----------------------------------------------------------------------------------------------------------------
                                                                     $4.10 per       $5.50 per       $6.15 per
                                                                    square foot     square foot     square foot
----------------------------------------------------------------------------------------------------------------
Total cost for 2,462 facilities (10 year phase-in)..............    $478,054,349    $641,292,249    $699,890,806
Total cost for 2,649 facilities (7 year phase-in)...............     514,339,799     689,962,474     752,787,927
Total cost for 2,773 facilities (5 year phase-in)...............     538,250,099     722,042,624     787,754,341
----------------------------------------------------------------------------------------------------------------

    As stated earlier, we do not expect long term care facilities to 
have funds immediately available to purchase and install sprinklers. 
Therefore, we propose to allow a phase-in period of undetermined length 
to help mitigate the cost of installing sprinklers by allowing 
facilities time to reprioritize and redistribute resources.
    For illustrative purposes only, we have estimated the annual costs 
of this proposed rule for 10, 7, and 5-year phase-in periods. While we 
would encourage all facilities to immediately begin the process of 
purchasing and installing sprinklers, we understand that some 
facilities would choose to wait until the very end of a phase-in period 
to begin this process. Therefore, we expect that the full cost of this 
proposed rule would be distributed over a period of several years as 
facilities nationwide would likely stagger their installation schedules 
to meet their individual needs and circumstances.
    The following tables show the estimated annual installation costs 
for the phase-in periods based on the estimated total cost figures 
shown in table 7. The annual installation cost estimates have been 
discounted at 3 and 7 percent in order to compare the cost in today's 
dollars to the cost in future dollars.

                                Table 8.--Annual Costs Over All Phase-in Periods
                                                  [In millions]
----------------------------------------------------------------------------------------------------------------
                                                                     $4.10 per       $5.50 per       $6.15 per
                                                                    square foot     square foot     square foot
----------------------------------------------------------------------------------------------------------------
10 year phase-in................................................           47.81            64.1           69.96
7 year phase-in.................................................           73.48            98.6          107.53
5 year phase-in.................................................          107.65           144.4          157.55
----------------------------------------------------------------------------------------------------------------


[[Page 62970]]

Maintenance

    After installing an approved, supervised automatic sprinkler system 
in accordance with the 1999 edition of NFPA 13 throughout the building, 
all long term care facilities would be required to test, inspect, and 
maintain their sprinkler systems in accordance with the 1998 edition 
NFPA 25. We estimate that long term care facilities would conduct 
quarterly inspections of their sprinkler systems and annual trip tests. 
We assume that each inspection will take 4 hours to complete, at a cost 
of $150 per inspection. We also assume that each trip test would take 6 
hours, at a cost of $250. Based on these assumptions, we estimate that 
long term care facilities would spend $850 annually to test and inspect 
their sprinkler systems. In addition, we assume that long term care 
facilities will spend an additional $150 annually to perform any 
necessary maintenance duties.
    Individuals who perform these testing, inspection, and maintenance 
duties would have to be properly trained and, in some States and local 
jurisdictions, they would have to be licensed. Generally, long term 
care facilities would not have enough sprinkler system work needs to 
directly employ someone with the necessary skills, training, and 
licensure. Therefore, we believe that long term care facilities would 
likely contract with another company to meet their testing, inspection, 
and maintenance needs. In addition to actually conducting the necessary 
testing, inspection, and maintenance activities, we believe that the 
contract would also include a provision that the contractor prepares 
adequate documentation of the activities conducted. We estimate that 
the total cost of meeting these requirements would be $1,000 ($150 x 4 
quarterly inspections = $600 + $250 annual trip test + $150 general 
maintenance costs = $1,000).
    In addition, all long term care facilities that would be affected 
by this proposed regulation would be required to maintain documentation 
of all inspection, maintenance, and testing activities. The burden 
associated with these requirements is estimated to be 1 hour per long 
term care facility. Therefore, we estimate it would take 2,462 total 
annual hours (1 hour x 2,462 estimated affected long term care 
facilities) to meet this requirement. This documentation maintenance 
requirement would cost an affected facility $19 a year, based on an 
hourly rate of $19 for an office employee ($19 per hour x 1 hour). The 
total annual cost of this proposed documentation requirement would be 
$46,778 ($19 per facility x 2,462 facilities).
    This estimated cost would be offset by the elimination of the cost 
of maintaining smoke alarms. Section 483.70(a)(7)(ii) requires long 
term care facilities that did not have sprinklers installed throughout 
their building to have a program for testing, maintenance, and battery 
replacement to ensure the reliability of smoke alarms in their 
facilities.
    However, Sec.  483.70(a)(7)(iii)(b) exempts long term care 
facilities from this smoke alarm maintenance requirement if their 
facilities have sprinkler systems throughout their building that are 
installed, tested, and maintained in accordance with NFPA 13. 
Therefore, long term care facilities that install and maintain 
sprinkler systems in accordance with this proposed regulation would be 
exempt from the existing requirement to maintain their smoke alarms. 
Due to the fact that all long term care facilities would be exempt from 
this smoke alarm requirement upon the phase-in date of a final 
regulation, we plan to add a sunset date to the smoke alarm requirement 
upon finalization of this sprinkler regulation. Based on the cost 
estimates published in ``Fire Safety Requirements for Certain Health 
Care Facilities; Amendment'' (70 FR 15229, March 25, 2005), we estimate 
that this exemption would save an average long term care facility that 
was affected by the smoke alarm requirement $2,800 annually. This 
results in a net savings of $1,800 annually ($2,800 savings from not 
maintaining smoke alarms -$1,019 cost of maintaining sprinklers = 
$1,781 net savings).

C. Alternatives Considered

1. Maintain Current Fire Safety Requirements
    We currently require long term care facilities to comply with the 
fire safety requirements in the LSC. In addition, we currently require 
long term care facilities that do not have sprinklers installed 
throughout the building to have and maintain at least battery operated 
smoke alarms in resident rooms and public areas. We believe that these 
requirements are a solid foundation for ensuring that all long term 
care facility residents are protected from the threat of fire.
    We also believe that these current measures do not go far enough to 
protect long term care facility residents. Both the Hartford and 
Nashville facilities were in substantial compliance with the LSC, yet 
both facilities experienced severe fires with large numbers of 
fatalities.
    The smoke alarm requirement that we published in the Federal 
Register on March 25, 2005 (70 FR 15229) after these fires was a step 
toward improving fire safety and avoiding another devastating fire. 
Unfortunately, smoke alarms can only warn facility staff and residents 
of the fire. They cannot suppress a fire or prevent it from spreading 
to other areas.
    Long term care facility residents often have multiple or severe 
health problems that complicate the facility's ability to ensure their 
safety in the event of a fire. For example, frail elderly residents may 
rely on facility staff to assist them in transferring and otherwise 
moving about the facility. These types of residents are unable to 
independently protect themselves from the threat of fire by moving away 
from the danger. They are dependent on facility staff, who are also 
responsible for ensuring the safety of dozens of other residents. A 
rapidly growing fire can overwhelm both the staff and residents, 
leading to tragic consequences.
    However, a properly designed, installed, and maintained sprinkler 
system effectively prevents a fire from spreading to other areas and 
overwhelming the staff and residents. Containing a fire reduces the 
threat to residents in other portions of the building and allows 
facility staff to focus their energy on the area that is most affected 
by the fire, without worry about the fire spreading to other areas and 
threatening other residents. Sprinkler systems have consistently served 
this function for many years, and they are commonly recognized as the 
single most effective fire safety device currently available.
    Given the past success of sprinkler systems and their potential for 
saving lives in the future, we believe that maintaining the existing 
fire safety requirements without adding sprinkler requirements does not 
ensure the safety of long term care facility residents to the greatest 
extent possible.
    In addition, maintaining the existing fire safety requirements 
would have left decisions regarding more stringent fire safety measures 
in the hands of State and local governments. State and local 
governments have, in the past, made very different decisions about fire 
safety requirements in long-term care facilities. For example, some 
States, such as Tennessee and Virginia, already require all long-term 
care facilities to have sprinklers throughout their buildings. In 
contrast, other States, such as Arkansas and Nebraska, do not have such 
requirements, resulting in 25 percent or

[[Page 62971]]

more of their long-term care facilities completely lacking sprinklers. 
This level of variability is not acceptable because residents of long-
term care facilities should be assured the same minimum level of fire 
safety regardless of what State or locality they reside in. Federal 
regulation is the most efficient and expedient manner for achieving the 
goal of uniform nationwide minimum fire safety standards; therefore, we 
chose to pursue Federal regulation rather than depending on State and 
local governments.
2. Exempt Small Facilities
    The Medicare Conditions of Participation are the minimum 
requirements that providers are required to meet in order to be 
Medicare and Medicaid certified. Many other standards setting 
organizations have requirements that go beyond what Medicare and 
Medicaid require. Facilities may choose to strive for these higher 
standards, although Medicare and Medicaid do not require them to do so.
    Exempting any facility from this proposed minimum requirement would 
be a disservice to the residents of that facility. Residents deserve to 
be safe from the threat of fire, whether they reside in a large 
facility or a smaller one. The proposed sprinkler requirement would 
ensure that, regardless of the size or location of their residence, all 
residents are protected by the same basic minimum fire safety 
requirements.
    We believe that a phase-in period would help to mitigate the costs 
of installing sprinklers for small facilities while ensuring that all 
residents are protected by the same minimum requirements. Therefore, we 
are not proposing to exempt small facilities from this requirement.
3. Require Immediate Compliance
    Requiring immediate compliance with the proposed condition would, 
we believe, be a hardship for affected long term care facilities. 
Designing a sprinkler system, purchasing it, installing it, and testing 
it all require a significant amount of time. The typical 60-day delay 
in the effective date of a regulation would not be sufficient time to 
complete the entire sprinkler process. For this reason, we have chosen 
not to require immediate compliance. Instead, we believe that it is 
appropriate to propose a several-year phase-in period for this 
regulation.
    We are specifically requesting public comments and suggestions 
regarding the length of a phase-in period in section II.B of this 
proposed rule.

D. Conclusion

    For these reasons, we are not preparing analyses for the RFA 
because we have determined that this rule would not have a significant 
economic impact on small entities because the estimated cost of the 
proposed regulation would account for less than 1 percent of an 
affected facility's revenue over, for example, a 7-year or 10-year 
period.
    In accordance with the provisions of Executive Order 12866, this 
regulation was reviewed by the Office of Management and Budget.

List of Subjects in 42 CFR Part 483

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

    For the reasons set forth in the preamble, the Centers for Medicare 
and Medicaid Services proposes to amend 42 CFR chapter IV as set forth 
below:

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. In Sec.  483.70, add new paragraph (a)(7)(iv) and new paragraph 
(a)(8) to read as follows:


Sec.  483.70  Physical environment.

    (a) * * *
    (7) * * *
    (iv) The terms of paragraph (a)(7) of this section shall remain 
effective through the date specified at paragraph (a)(8)(i) of this 
section.
    (8) A long term care facility must:
    (i) Install an approved, supervised automatic sprinkler system in 
accordance with the 1999 edition of NFPA 13, Standard for the 
Installation of Sprinkler Systems, as incorporated by reference, 
throughout the building by phase-in date to be determined. The Director 
of the Office of the Federal Register has approved the NFPA 13 1999 
edition of the Life Safety Code, issued July 22, 1999 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 or at the 
National Archives and Records Administration (NARA). For information on 
the availability of this material at NARA, call 202-741-6030, or go to: 
http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html. Copies may be obtained from the 
National Fire Protection Association, 1 Batterymarch Park, Quincy, MA 
02269.
    (ii) Test, inspect, and maintain an approved, supervised automatic 
sprinkler system in accordance with the 1998 edition of NFPA 25, 
Standard for the Inspection, Testing and Maintenance of Water-Based 
Fire Protection Systems, as incorporated by reference. The Director of 
the Office of the Federal Register has approved the NFPA 25 1998 
edition of the Life Safety Code, issued January 16, 1998 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 or 
at the National Archives and Records Administration (NARA). For 
information on the availability of this material at NARA, call 202-741-
6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html. Copies may be obtained from 
the National Fire Protection Association, 1 Batterymarch Park, Quincy, 
MA 02269.

(Catalog of Federal Domestic Assistance Program No. 93.778, Medical 
Assistance Program)

(Catalog of Federal Domestic Assistance Program No. 93.773, 
Medicare--Hospital Insurance; and Program No. 93.774, Medicare--
Supplementary Medical Insurance Program)


    Dated: September 23, 2005.
Mark B. McClellan,
Administrator, Centers for Medicare & Medicaid Services.
    Approved: July 3, 2006.
Michael O. Leavitt,
Secretary.
 [FR Doc. E6-17911 Filed 10-26-06; 8:45 am]
BILLING CODE 4120-01-P