As of August 13, 2013, all nursing homes participating in Medicare or Medicaid must have automatic sprinkler systems installed throughout the building. CMS first established the sprinkler requirement in a final rule published on August 13, 2008, which provided for a five-year phase-in period to give facilities time to achieve full sprinkler status. As that period has now passed, CMS released a Memo on August 16, 2013 reminding surveyors of the requirement and setting forth a survey and enforcement process.

The Memo directed surveyors to determine compliance with the sprinkler requirement during Life Safety Code (LSC) surveys, which occur as part of a facility's annual recertification survey or a complaint visit where LSC deficiencies are noted or referred. For those facilities that do not have a complete, automatic sprinkler system installed in accordance with NFPA 101, LSC, 2000 Edition and NFPA 13, Installation of Sprinkler Systems, 1999 edition, surveyors will issue citations at deficiency tag K056. The scope and severity ("S/S") of the deficiency will typically be cited at the "potential for harm" level of D, E, or F, with the appropriate level selected based on how many residents are at risk of potential harm from the deficiency. However, CMS did not discount the possibility of surveyors citing more severe S/S levels where appropriate.

CMS outlined in the Memo the following four scenarios that would warrant some type of deficiency:

1. A facility has complete, working, automatic sprinkler systems with minor problems. Surveyors will cite a deficiency at S/S level D, E, or F for the appropriate LSC tag, not for tag K056.
2. A facility appears to have a complete sprinkler system but with significant and/or many problems. Surveyors will treat the facility as only having a partial sprinkler system and will, accordingly, cite tag K056 at a S/S level D, E, or F. The specific S/S level will depend on the extent of the potential for harm.
3. A facility has a partial sprinkler system. Surveyors will cite tag K056 at a S/S level of D, E, or F, depending on the potential for harm.
4. A facility does not have a sprinkler system. Because the potential for harm is widespread under this scenario, surveyors must cite tag K056 at S/S level F.

Further Consequences of Noncompliance

Once a facility is cited for not meeting the sprinkler requirement, the facility is placed on the normal enforcement track and must submit a plan of correction. In general, the facility then has three months to correct the deficiency to avoid further consequences. Failure to achieve substantial compliance within this timeframe is grounds for denial of payment for new admissions, and noncompliance after six months can result in termination from Medicare participation. CMS indicated in the Memo, however, that it may require earlier enforcement dates and issue other remedies, depending on the circumstances. For instance, Civil Monetary Penalties (CMPs) may be imposed where noncompliance is serious, particularly if necessary plans to install sprinklers have not been completed at the time of the survey or the facility lacks a clear commitment to achieving compliance. CMS will typically not impose CMPs if, by having contracts and completed plans for installation in place, the plan of correction ensures that compliance will be achieved within three months.

No Deadline Extensions or Waivers Exist

The Memo also reinforced that the August 13, 2013 deadline will not be extended and no waivers are available. While CMS issued a Notice of Proposed Rule-Making on February 7, 2013 that would allow deadline extensions for those nursing homes building replacement facilities or undergoing extensive construction, no final rule was promulgated. As a result, CMS has no authority to extend the deadline and cannot consider any unique circumstances that have led facilities to delay installing the appropriate sprinkler systems. Additionally, CMS reiterated that no waivers exist for tag K056 citations and any waivers previously granted for unsprinklered overhangs or canopies expired August 13, 2013. Those facilities granted a waiver that have not yet installed sprinklers in overhangs or canopies will now be considered partially sprinklered and subject to survey citations.

What Providers Should Know

• Surveyors cannot cite sprinkler deficiencies at the "in-compliance" S/S levels of A, B, or C. Facilities that fail to have a complete, automatic sprinkler system in place at the time of the survey will face more severe citations.
• Noncompliant facilities should immediately implement any plans necessary to achieve compliance, as nursing homes will be cited for deficiencies within the next year. Additionally, while having these plans in place will not circumvent a tag K056 citation, they may reduce the facility's risk of incurring CMPs.
• For those facilities that have delayed sprinkler installations due to planned replacement facilities or major construction projects, maintaining close communication with CMS and state agencies will be important. These facilities should refer to Attachment Two of the Memo and submit the list of useful information outlined therein.