Federal Register / Vol. 73, No. 157 / Wednesday, August 13, 2008 / Rules and Regulations 47075 

Dated: July 31, 2008. 

Donald R. Stubbs, 

Acting Director, Registration Division, Office 

of Pesticide Programs. 

■ Therefore, 40 CFR chapter I is 

amended as follows: 

PART 180—[AMENDED] 

■ 1. The authority citation for part 180 

continues to read as follows: 

Authority: 21 U.S.C. 321(q), 346a and 371. 

■ 2. Section 180.439 is amended by 

alphabetically adding the following 

commodities to the table in paragraph 

(a) to read as follows: 

§180.439 Thifensulfuron methyl; 

tolerances for residues. 

(a) * * * 

Commodity Parts per million 

* * * * * 

Barley, hay 0.8 

* * * * * 

Oat, forage 0.2 

* * * * * 

Oat, hay 0.05 

* * * * * 

Wheat, forage 2.5 

* * * * * 

Wheat, hay 0.7 

* * * * * 

* * * * * 

[FR Doc. E8–18457 Filed 8–12–08; 8:45 am] 

BILLING CODE 6560–50–S 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Centers for Medicare & Medicaid 

Services 

42 CFR Part 483 

[CMS–3191–F] 

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: Final rule. 

SUMMARY: This final rule requires all 

long term care facilities to be equipped 

with sprinkler systems by August 13, 

2013. Additionally, this final rule 

requires affected facilities to maintain 

their automatic sprinkler systems once 

they are installed. 

DATES: These regulations are effective 

on October 14, 2008. The incorporation 

by reference listed in the rule is 

approved by the Director of the Federal 

Register October 14, 2008. 

FOR FURTHER INFORMATION CONTACT: 

Danielle Shearer, (410) 786–6617; James 

Merrill, (410) 786–6998; Marcia 

Newton, (410) 786–5265; or Jeannie 

Miller, (410) 786–3164. 

SUPPLEMENTARY INFORMATION: 

I. Background 

A. Overview of the Life Safety Code 

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)(B) and 1919(d)(2)(B) 

of the Social Security Act (the Act) 

require that long term care facilities 

participating in the Medicare and 

Medicaid programs generally meet the 

applicable 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 required to install 

sprinklers only in the renovated 

section(s). Therefore, a building may 

have sprinklers only on one floor or in 

one 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. 

In the 2006 edition of the LSC, the 

NFPA decided to include an automatic 

sprinkler system requirement for all 

long term care facilities. We support the 

NFPA in its decision. We decided to 

proceed with this rule, without 

proposing adoption of 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 stated in the October 

27, 2006 proposed rule (71 FR 62957, 

62960), given the large scope of the LSC, 

we would not be able to adopt and 

enforce compliance with the 2006 

edition of the LSC until 2009 or 2010. 

Therefore, we 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 working 

with the NFPA through its consensus 

process to revise and refine the 2009 

edition of the LSC. Once the 2009 

edition is issued, we will review the 

code in its entirety and explore the 

possibility of adopting it for all 


hsrobinson on PROD1PC76 with RULES
47076 Federal Register / Vol. 73, No. 157 / Wednesday, August 13, 2008 / Rules and Regulations 

Medicare and Medicaid-participating 

health care facilities. 

B. Recent Fire Safety Developments 

A 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 the report cited the 

effectiveness of smoke detectors’ and 

sprinklers’ fire protection features 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 § 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 had a hard-wired 

smoke detector system in resident 

rooms and public areas or a sprinkler 

system installed throughout the facility. 

This IFC was finalized September 22, 

2006 (71 FR 55326). 

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 approximately 2,300 

facilities per year reported fires, those 

fires resulted in an average of only 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. 

From 1990 to 2002, there were no 

fires in long term care facilities that 

resulted in more than one or two 

fatalities. During that time period there 

were no fires in long term care facilities 

that resulted in a loss of life comparable 

to that of the Hartford and Nashville 

fires. 

We believe the low number of firerelated fatalities each year is 

attributable, in part, to the increasing 

use of automatic sprinkler systems in 

long term care facilities as a fire 

protection method. State and local 

jurisdictions often adopt an edition of 

the LSC or a comparable fire safety code 

shortly after it is published. Therefore, 

a building constructed in the early 

1990s likely met the requirements of the 

1991 edition of the LSC or another 

comparable code. 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 has decreased 

significantly 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. 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, which 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. 

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. 

II. Provisions of the Proposed 

Regulations 

We published a proposed rule in the 

Federal Register on October 27, 2006 

(71 FR 62957) that would require all 

long term care facilities to be equipped 

with sprinkler systems. That proposed 

rule also requested public comments on 

the duration of a phase-in period to 

allow such facilities to install such 

systems. 

For the reasons described in section I 

of this preamble, we proposed a rule 

with three main components. First, the 

regulation proposed to add a sunset 

provision to paragraph (a)(7) in § 483.70 

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. We 

proposed to add the sunset date because 

the requirements of § 483.70(a)(7) apply 

only to unsprinklered and partially 

sprinklered long term care facilities. 

Once all long term care facilities are 

fully sprinklered, there would not be 

any unsprinklered or partially 

sprinklered facilities to which 

§ 483.70(a)(7) would apply. 

Second, we proposed 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 did not have 

such a system already. If a long term 

care facility was part of another 

building, such as a hospital, then the 

building would be required to have 

sprinklers only 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, and the 

October 2006 proposed rule 

summarized the content of these 

chapters. 

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 


hsrobinson on PROD1PC76 with RULES
Federal Register / Vol. 73, No. 157 / Wednesday, August 13, 2008 / Rules and Regulations 47077 

installation of sprinkler systems so that 

each system may be tailored to the 

building in which it is installed. 

Third, the regulation proposed 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 WaterBased Fire Protection Systems. 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. 

NFPA 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. We 

summarized the content of NFPA 25 in 

the proposed rule. 

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, as used in the fire safety 

community, are as follows: 

• Approved means acceptable to the 

authority having jurisdiction (from 2000 

edition of NFPA 101, the LSC). 

• Automatic means that which 

provides a function without the 

necessity of human intervention (from 

2000 edition of NFPA 101, the LSC). 

• 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 

(adapted from 1999 edition of NFPA 13, 

Standard for the Installation of 

Sprinkler Systems). 

III. Analysis of and Responses to Public 

Comments 

We received 107 comments from the 

public on the October 27, 2006 

proposed rule. The comments received 

and our responses to those comments 

are discussed below. 

Comment: The vast majority of 

commenters strongly supported our 

intent to require automatic sprinkler 

systems throughout all long term care 

facilities. Conversely, a small minority 

of commenters disagreed with the 

proposed rule, citing the expense of 

purchasing and installing sprinklers and 

the availability of other fire safety 

features such as water-based fire-proof 

coatings and fire walls as reasons for not 

requiring sprinklers in all long term care 

facilities. 

Response: We appreciate the strong 

support expressed by most commenters. 

While we agree that there are other 

methods for improving fire safety in 

long term care facilities, these other 

methods do not achieve the same high 

level of fire safety as automatic sprinkler 

systems. We are proceeding with this 

final rule requiring all long term care 

facilities to install and maintain 

automatic sprinkler systems because we 

agree with the GAO that such systems 

are the single most effective fire safety 

method currently available and that the 

presence of such systems will help save 

lives and property. 

Comment: Several commenters 

submitted comments related to the 

specific facilities that are, or should be, 

affected by this final rule. One 

commenter explicitly supported our 

decision to apply the proposed sprinkler 

requirements to all affected long term 

care facilities, regardless of their size. 

Some commenters requested that this 

rule be expanded to apply to any 

residential facility that cares for 

individuals on a 24-hour basis. One 

commenter suggested that the rule 

should apply to federally operated 

nursing homes as well, such as those 

operated by the U.S. Department of 

Veterans Affairs. Another commenter 

suggested that the rule should apply to 

inpatient facilities such as hospitals and 

critical access hospitals with swing 

beds. Still other commenters asked 

whether the requirements of the final 

rule will affect adult day care centers. 

Response: We proposed to require all 

long term care facilities to install 

automatic sprinkler systems regardless 

of their size because their recent fire 

history and current staffing levels 

indicated the need for additional fire 

safety features. We do not believe it is 

necessary for us to require sprinkler 

systems in other facility types, such as 

intermediate care facilities, adult day 

care facilities, or critical access 

hospitals at this time because there is no 

demonstrated need for such regulation. 

While we agree that it may be 

appropriate for federally operated 

nursing homes, such as those operated 

by the U.S. Department of Veterans 

Affairs, to install automatic sprinkler 

systems, we do not have regulatory 

authority over these facilities. Therefore, 

we are unable to promulgate a 

regulation applying to them. 

Comment: Numerous commenters 

discussed the financial impact that the 

proposed rule will have on long term 

care facilities, and suggested a variety of 

methods to offset the expected impact. 

Of these commenters, several suggested 

that CMS should support legislation in 

the Congress that will provide financial 

incentives for long term care facilities to 

install sprinkler systems. A few 

commenters indicated that they are 

actively working with the Congress to 

obtain financial assistance for long term 

care facilities in implementing the 

requirements of this final rule. Other 

commenters suggested that CMS should 

make financial assistance available to 

facilities, with some suggesting that 

such assistance should be limited to 

those facilities with not-for-profit status 

or those that are not profitable. Still 

another commenter suggested that CMS 

should compel State Medicaid programs 

to increase reimbursement rates to fund 

capital improvements in long term care 

facilities. 

Response: We recognize that 

purchasing and installing an automatic 

sprinkler system throughout a long term 

care facility requires a substantial 

capital investment. We defer to the 

Congress and States to provide financial 

assistance to long term care facilities to 

complete the purchase and installation 

process, whether such assistance comes 

in the form of loans, grants, tax relief, 

and/or increased reimbursement rates. 

We have included a 5 year phase-in 

period in this final rule. This phase-in 

period allows facilities the time and 

flexibility to install sprinkler systems in 

a manner that is sensitive to the 

individual circumstances of each 

facility. We believe this phase-in period 

will help mitigate the financial impact 

of this final rule. 

Comment: Numerous commenters 

stated that this final rule should provide 

additional discussion of the role that 

State and locally imposed building and 

fire safety codes play in protecting long 

term care facility residents. 

Response: We acknowledge that State 

and local authorities use their authority 

to require long term care facilities to 

meet building and fire safety codes 

independent of the codes applied to 

facilities through Federal regulations. 

State and local authorities often adopt 

more recent editions of such codes than 

those required by Federal rules. Until 

2003, Federal fire safety regulations 

referenced simultaneously Life Safety 

Code provisions from several editions 

including the editions of 1967, 1973, 

and 1985. However, health care 

facilities were not being built to these 

older standards because State and local 

jurisdictions adopted and enforced far 


hsrobinson on PROD1PC76 with RULES
47078 Federal Register / Vol. 73, No. 157 / Wednesday, August 13, 2008 / Rules and Regulations 

more recent editions of building and fire 

safety codes. Such prompt adoption of 

updated codes by State and local 

jurisdictions likely has led to the large 

number of long term care facilities that 

currently have automatic sprinkler 

systems throughout their facilities. We 

continue to support the right of State 

and local authorities to impose building 

and fire safety codes independent of 

these Federal requirements and will 

continue to monitor all efforts to 

improve safety for long term care facility 

residents. 

Comment: Some commenters 

expressed concern that this final rule 

will preempt State and local fire safety 

requirements. Of these commenters, a 

few expressed concern that this Federal 

rulemaking preempted State and local 

efforts and did not respond to the 

unique needs of different localities. 

Furthermore, some of these commenters 

requested a more detailed discussion of 

Executive Order 13132 (Federalism) as 

it relates to this rulemaking action. 

Conversely, several commenters 

indicated that they agreed with our 

conclusion that this rule is in 

accordance with the actions of State and 

local governments, and that it is 

appropriate for the Federal government 

to require automatic sprinkler systems 

in Medicare and Medicaid-participating 

long term care facilities. 

Response: The Federal regulations for 

long term care facilities are considered 

to be the minimum standards that a 

facility must meet in order to participate 

in the Medicare and Medicaid programs. 

As such, they will not preempt more 

stringent State and local requirements. 

For example, if a State or local authority 

requires a long term care facility to 

install an automatic sprinkler system 

within 3 years after adoption of a law 

requiring it, then a facility must comply 

with that shorter time frame, even 

though this Federal regulation allows a 

facility up to 5 years to install an 

automatic sprinkler system. However, if 

a State or local authority requires a long 

term care facility to install an automatic 

sprinkler system only in hazardous 

areas, then a facility must go beyond the 

State or local requirement and install an 

automatic sprinkler system throughout 

its building in order to participate in 

Medicare or Medicaid. We believe that 

all facilities must install an automatic 

sprinkler system throughout a facility by 

2013, regardless of the State or locality 

where a facility is located. In order to 

achieve this goal, it is necessary to 

promulgate a Federal regulation. State 

and local jurisdictions have always had 

the authority to require automatic 

sprinkler systems in existing long term 

care facilities. However, few States have 

taken action to require existing long 

term care facilities to retrofit their 

buildings with such systems. Thus, we 

believe it is necessary to take this 

Federal action. 

In addition, this rule adopts the 

sprinkler installation and maintenance 

requirements established by the NFPA. 

The NFPA is a national standard setting 

body with representatives from all 

members of the fire safety community, 

including State and local jurisdictions. 

As such, these representatives had 

active input in the content and 

framework of the NFPA sprinkler 

standards. The standards allow 

flexibility in the design, installation, 

and maintenance of sprinkler systems to 

adapt to the needs of individual 

facilities as well as jurisdictions. 

Facilities are required by the NFPA 

standards to submit their design and 

installation plans to the appropriate 

authorities having jurisdiction. This 

allows local and State authorities the 

opportunity to ensure that such plans 

meet their individual needs. Since this 

action does not impinge upon a State or 

local jurisdiction’s authority to impose 

more stringent fire safety requirements 

upon long term care facilities in 

response to the unique needs and 

concerns of the particular area, and 

gives State and local authorities the 

opportunity to provide further input 

into individual sprinkler planning 

activities, we do not believe this final 

rule has Federalism implications as 

described in Executive Order 13132. 

Furthermore, we regularly 

communicate with State and local 

officials and with the long term care 

provider community through Open Door 

Forums, as well as through responses to 

letters, informal phone calls, and 

informal e-mails. Through these 

communications, as well as through the 

public comment process for this 

proposed rule, we believe we have 

sufficiently consulted with all affected 

parties, including State and local 

jurisdictions, as is required by Executive 

Order 13132. 

Comment: Several commenters 

submitted views regarding the 

assumptions and estimates we used in 

the impact analysis for the proposed 

rule. Commenters questioned our 

estimates of the cost per square foot, the 

projected number of facilities affected, 

and the projected number of lives saved. 

Response: We appreciate the 

suggestions that we received, and we 

considered them as we revised the 

impact analysis for this final rule. The 

final impact analysis reflects an increase 

in our estimate of the cost per square 

foot, from a high of $6.10 to a high of 

$7.95, to reflect inflation since the 

publication of the proposed rule. The 

final analysis also revises the number of 

facilities that are affected by this rule by 

replacing projections of future sprinkler 

system installations with the actual 

number of facilities lacking automatic 

sprinkler systems as of December 2007. 

The final impact analysis does not 

revise the method for estimating future 

lives saved by this rule. Although a 

commenter questioned this 

methodology, the commenter did not 

offer an alternative methodology that 

would more accurately estimate this 

number. Since we are not aware of an 

alternative method to estimate the 

number of lives that will be saved, we 

have retained the method used in the 

proposed rule. 

Comment: Some commenters agreed 

with our proposal to require automatic 

sprinkler systems in all facilities, while 

a small number of commenters 

requested that certain long term care 

facilities be exempt from the 

requirements of this final rule. 

Response: Automatic sprinkler 

systems are generally considered to be 

the single most effective fire protection 

feature in a building. As such, we 

believe all long term care facilities, 

regardless of their size or location in 

relationship to another type of health 

care facility, should be required to have 

sprinklers. Exempting a particular class 

of long term care facilities, regardless of 

the criteria used, will not provide a 

consistent level of fire safety across the 

country. 

Comment: Several commenters 

submitted comments regarding CMS 

enforcement of this final rule. Some of 

these commenters sought assurance that 

surveyors would be appropriately 

trained to enforce the new sprinkler 

requirement. One commenter suggested 

that we should survey each facility 

annually to ensure compliance with this 

rule. Other commenters asked about the 

enforcement remedies that would be 

available if a facility was non-compliant 

with the requirements of this final rule, 

going so far as to suggest that noncompliant facilities should receive 

reduced payments from Medicare and 

Medicaid. Still other commenters 

requested that additional information 

about the sprinkler status of particular 

facilities and facilities as a whole be 

included on CMS’ Nursing Home 

Compare Web site. 

Response: We agree that it is essential 

to ensure that surveyors are 

appropriately trained to survey facilities 

for compliance with all fire safety 

requirements, including automatic 

sprinkler systems. To that end, we 

conduct annual training sessions for 

surveyors to educate them on, among 


hsrobinson on PROD1PC76 with RULES
Federal Register / Vol. 73, No. 157 / Wednesday, August 13, 2008 / Rules and Regulations 47079 

other things, fire safety requirements 

and appropriate survey procedures. This 

training ensures surveyor competency 

in this area. We also agree that frequent 

surveys of long term care facilities are 

key to ensuring continued compliance 

with these requirements. By law, we are 

required to survey long term care 

facilities every 15 months to ensure 

compliance with all health and safety 

requirements, and we will incorporate 

this new requirement into the existing 

survey process. If a facility is found to 

be non-compliant with the provisions of 

this final rule, we have the full 

complement of enforcement remedies 

available to ensure that a facility comes 

into compliance. In addition to 

termination of the provider agreement, 

available remedies include the 

following: (1) Temporary management 

(that is, the temporary appointment by 

CMS or the State of a temporary director 

or administrator of a facility); (2) denial 

of payment, including denial of 

payment for all individuals, imposed by 

CMS upon a skilled nursing facility for 

Medicare payments, by a State for 

Medicaid payments, or denial of 

payment for all new admissions; (3) 

civil money penalties; (4) State 

monitoring; (5) transfer of residents; or 

(6) transfer of residents and closure of 

the facility. CMS currently includes 

information about a facility’s sprinkler 

status on the Nursing Home Compare 

Web site to enable consumers to make 

an informed decision. 

Comment: A commenter suggested 

that installation of sprinkler systems 

should be limited to pre-approved 

companies with proven fire safety 

records. Another commenter suggested 

that we should create a special task 

force in each State to visit each facility 

and examine the information used to 

design the facility’s sprinkler system. 

Response: While we agree that long 

term care facilities should look for 

qualified contractors to design and 

install their sprinkler systems, we do 

not believe it is appropriate to, nor do 

we have the authority to, select or 

approve such contractors. In addition, 

we do not believe it is appropriate for 

us to develop task forces in each State 

to review a facility’s research and design 

plan. There are numerous qualified 

designers who are capable of designing 

sprinkler systems that fulfill facilityspecific specifications. It is incumbent 

upon facilities to assure that their 

automatic sprinkler systems meet their 

specific facility needs as identified 

during a thorough review of their 

current fire and building safety features 

and various other factors. 

Comment: A few commenters 

submitted additional information on 

their own fire safety features and 

requirements (for example State 

sprinkler requirements and facilityspecific fire safety plans). 

Response: We appreciate the 

additional information provided by the 

commenters. It validates our 

understanding of current fire safety 

efforts, both on the facility and State 

levels. 

Comment: A commenter suggested 

that staffing levels may also impact 

facility fire safety, and that we should 

require additional staffing during the 

phase-in period to ensure that facility 

residents are protected from fire. 

Response: We agree that sufficient 

staffing is necessary to ensure resident 

health and safety, including fire safety. 

Ensuring resident health and safety, 

which is closely tied to facility staffing, 

is already required in § 483.15, ‘‘Quality 

of life,’’ § 483.30, ‘‘Nursing services,’’

and § 483.70, ‘‘Physical environment.’’

We believe these regulations ensure 

sufficient staffing levels in long term 

care facilities to promote and protect 

resident health and safety in all 

circumstances. 

Comment: A commenter questioned 

the conclusions of the GAO report 

regarding the two multiple death fires in 

Connecticut and Tennessee. The 

commenter stated that the GAO report 

did not demonstrate the superiority of 

sprinklers over smoke alarms. The 

commenter also stated that the number 

of multiple death fires before 1990 was 

zero, and that the installation of 

sprinklers in new facilities after 1990 

thus had no bearing on the number of 

fires between 1990 and 1992. 

Response: While we recognize that 

the commenter disagrees with the data 

analysis of current fire safety levels in 

long term care facilities presented by the 

GAO, we continue to support the GAO’s 

data, collection methodology, analytic 

methodology, and conclusions. We 

concur with the GAO that smoke alarms 

are necessary in unsprinklered facilities; 

we now require unsprinklered facilities 

to have such alarms in accordance with 

the requirements of § 483.70(a)(7). We 

also concur with the GAO that before 

1990, multiple death fires occurred on 

a more frequent basis. As stated in the 

GAO report, ‘‘When the federal 

government first adopted the NFPA fire 

safety standards in 1971, the number of 

multiple-death fires in nursing homes 

was about 15 to 18 per year. With the 

adoption and enforcement of these 

standards, including the requirement for 

sprinklers in homes that were not highly 

fire resistant, the number of fire-related 

nursing home fatalities dropped 

dramatically.’’ (p. 14; we note that the 

average annual number of long term 

care facility fire fatalities, according to 

the GAO report, is now 5.) Furthermore, 

we concur with the GAO that sprinklers 

improve the level of fire safety beyond 

that which is provided by smoke alarms, 

and we are implementing this final rule 

to require sprinklers in all long term 

care facilities. 

Comment: A commenter suggested 

that all facilities that currently have 

automatic sprinkler systems throughout 

their buildings be required to maintain 

those systems in accordance with the 

requirements of NFPA 25. 

Response: Long term care facilities are 

required to meet the standards of the 

LSC, which requires facilities with 

existing sprinklers to maintain those 

sprinklers in accordance with the 

requirements of NFPA 25. We agree 

with the commenter and are adopting 

NFPA 25 by reference at 

§ 483.70(a)(8)(ii). 

Comment: A commenter stated that 

NFPA 101, NFPA 13, and NFPA 25 can 

all be viewed without charge at http:// 

www.nfpa.org/freecodes/ 

free_access_document.asp. 

Response: We thank the commenter 

for providing this Web site citation. 

Unfortunately, the citation provided 

does not link to the documents that a 

long term care facility will need to 

comply with this final rule. Instead, an 

alternative, free Web site for this 

information is http://www.nfpa.org/ 

aboutthecodes/ 

list_of_codes_and_standards.asp. 

Comment: A few commenters 

suggested that facilities be permitted to 

have a reduced water supply that does 

not meet the specifications of the NFPA 

requirements for health care facilities 

when an adequate level of safety can be 

assured with less water. 

Response: The NFPA uses a 

consensus process to establish the 

requirements of its sprinkler installation 

and maintenance codes. It would not be 

in the best interests of long term care 

facilities and their residents to reduce 

the NFPA standards. We believe that the 

NFPA standards represent the absolute 

minimum standards that long term care 

facilities must meet, and that lowering 

the standards below those of the NFPA 

would jeopardize long term care facility 

resident and staff safety. 

Comment: A commenter requested a 

90-day extension of the public comment 

period. 

Response: We do not believe it is 

necessary to extend the standard 

comment period. We received 107 

unique comments, as well as numerous 

duplicate comments, from interested 

parties during the comment period, and 

we believe these comments adequately 

reflect public sentiment on this matter. 


hsrobinson on PROD1PC76 with RULES
47080 Federal Register / Vol. 73, No. 157 / Wednesday, August 13, 2008 / Rules and Regulations 

Comment: A few commenters 

suggested additional requirements to 

which long term care facilities should 

be held. One commenter suggested that, 

in addition to installing and 

maintaining automatic sprinkler 

systems, long term care facilities should 

be required to install and maintain 

automatic fire alarm systems 

incorporating commercial smoke 

detectors that comply with the audio 

and visual notification standards of the 

Americans with Disabilities Act. 

Another commenter suggested that long 

term care facilities should be required to 

have mattresses that comply with 

certain fire safety standards. 

Response: We agree with the 

commenters that numerous additional 

options are available to long term care 

facilities that wish to further enhance 

their fire safety levels. Long term care 

facilities may explore these options in 

addition to meeting all requirements of 

the LSC and this final rule. 

Comment: A small number of 

commenters submitted comments on the 

existing provision that a State may 

apply to CMS to use its own alternative 

fire safety code imposed by State law if 

that code adequately protects patients. 

The commenters inquired as to the 

status of their own particular 

applications for a waiver under this 

provision. 

Response: CMS actively considers any 

application submitted by a State 

regarding the use of an alternate fire 

safety code in health care facilities. 

However, these applications have no 

bearing on the requirements of this final 

rule because this final rule requires 

automatic sprinklers independent of the 

requirements of the LSC. 

Comment: A commenter asked us to 

present a list of those States in the early 

1990s that adopted the 1991 or later 

edition of the LSC or another code 

requiring newly constructed long term 

care facilities to install automatic 

sprinkler systems. 

Response: We do not believe it is 

necessary to present such a list of 

information regarding the requirements 

of individual States. While such a list 

may provide additional historic 

background on fire safety requirements 

in the United States, all unsprinklered 

long term care facilities must install and 

maintain automatic sprinkler systems. 

Comment: A commenter suggested 

that, instead of requiring all long term 

care facilities to install an automatic 

sprinkler system, we should permit 

such facilities an exemption if they have 

all of the following features: Smoke 

detectors, mattresses that meet certain 

fire safety requirements, and 

upholstered furniture that meets certain 

fire safety requirements. 

Response: The fire safety measures 

noted above are valuable tools for 

enhancing fire safety in long term care 

facilities. However, none of these 

features serve the same purpose as an 

automatic sprinkler system, which is to 

actively suppress a fire once it is 

ignited. Thus, we do not believe the 

suggested options achieve the same 

level of fire safety as automatic 

sprinklers. 

Comment: A commenter suggested 

that we should include regulatory 

language that endorses standardization 

and provides for system 

interconnectivity. 

Response: We are not clear regarding 

the commenter’s suggestion. If the 

commenter is referring to the 

standardization of installation and 

maintenance requirements, we believe 

that referencing the NFPA installation 

and maintenance standards does 

endorse standardization of fire safety 

across long term care facilities. 

Comment: Many commenters 

submitted comments regarding the 

placement of smoke alarms in long term 

care facilities. In September 2006 we 

published a final rule requiring all 

unsprinklered long term care facilities 

to, at minimum, install and maintain 

battery-operated smoke alarms in all 

resident rooms and common areas. In 

the October 2006 proposed sprinkler 

rule, we proposed to add a sunset date 

to this smoke alarm requirement. The 

smoke alarm requirement would, 

according to our proposal, cease to be 

effective on the phase-in date of the 

sprinkler requirement. Many 

commenters disagreed with our 

proposal to add a sunset date to the 

smoke alarm requirement. Furthermore, 

many of these commenters stated that 

all long term care facilities should be 

required to have both automatic 

sprinkler systems throughout their 

buildings and smoke alarms in resident 

rooms and common areas. Conversely, 

several commenters agreed with our 

proposal to add a sunset provision to 

the smoke alarm requirement. Of these 

commenters, many requested that the 

sunset date be flexible for individual 

long term care facilities. These 

commenters suggested that, rather than 

having a single sunset date, the final 

rule should state that a long term care 

facility is no longer required to meet the 

smoke alarm provision as soon as it 

installs and begins using an automatic 

sprinkler system. Additionally, one 

commenter sought clarification of the 

relationship between the CMS smoke 

alarm requirement and the smoke alarm 

requirement of the 2000 edition of the 

Life Safety Code that long term care 

facilities are required to meet. 

Response: The proposed smoke alarm 

sunset provision appears to have caused 

significant confusion and concern, and 

we thank the commenters for the 

opportunity to clarify our intent. The 

smoke alarm requirements of paragraph 

(a)(7) apply only to unsprinklered or 

partially sprinklered long term care 

facilities. This final rule will require all 

facilities to be fully sprinklered. Thus, 

there will no longer be any facilities that 

are unsprinklered or partially 

sprinklered. Since (a)(7) applies only to 

unsprinklered or partially sprinklered 

facilities, it will be a moot requirement. 

Nonetheless, we believe that it is 

appropriate to retain the requirements of 

paragraph (a)(7) until the end of the 5- 

year phase-in period. At the end of this 

period we will consider proposing a 

rule which would delete both this 

provision and reference to the phase-in 

period. 

Moreover, facilities that are required 

to have smoke alarms or smoke 

detection systems in accordance with 

the requirements of the 2000 edition of 

the LSC as incorporated by reference in 

paragraph § 483.70(a)(1) must continue 

to comply with those existing LSC 

standards. 

A significant number of commenters 

advocated for smoke alarms and/or 

smoke detection systems in all long 

term care facilities, even those that have 

automatic sprinkler systems throughout 

their buildings. All long term care 

facilities may consider installing smoke 

detection systems in their facilities in 

addition to installing automatic 

sprinkler systems. We may consider the 

appropriateness of such a requirement 

in future rulemaking. 

Comment: We received a large 

number of public comments regarding 

the appropriate length of a phase-in 

period for the sprinkler installation 

requirement. Commenter suggestions for 

the length of the phase-in period ranged 

from as little as 18 months to as long as 

15 years. The most frequently suggested 

phase-in period was 3–5 years. Other 

commenters made more general 

recommendations such as ‘‘the sooner 

the better’’ and ‘‘sooner rather than 

later.’’ Additionally, many commenters 

suggested that nursing homes should be 

allowed phase-in waivers on a case-bycase basis to provide additional time to 

those nursing homes who make a good 

faith effort to comply within the stated 

timeframe, but who do not do so. One 

commenter suggested that we include 

an additional requirement that long 

term care facility owners file a statement 

with CMS detailing their intent to 


hsrobinson on PROD1PC76 with RULES
Federal Register / Vol. 73, No. 157 / Wednesday, August 13, 2008 / Rules and Regulations 47081 

comply with the final rule within 180 

days of publication of the final rule. 

Response: We agree with commenters 

that a phase-in period is necessary to 

allow long term care facilities sufficient 

time to purchase and install automatic 

sprinkler systems throughout their 

buildings. While we recognize that a 

relatively short phase-in period (such as 

18 months-3 years) will rapidly increase 

the level of fire safety in long term care 

facilities, we believe such a short time 

frame will not allow facilities enough 

time to comply with the provisions of 

this final rule. Re-allocating and/or 

securing financial resources, securing 

the services of a system designer and 

installation contractor, purchasing 

system components, securing any 

necessary permits, completing ancillary 

projects, and completing the actual 

installation process can take a 

substantial amount of time. We do not 

believe an 18-month to 3-year phase-in 

period allows enough time for all of 

these tasks to be completed in all 

affected facilities. Furthermore, we do 

not believe it is appropriate to allow 

waivers of this important requirement. 

Likewise, we do not believe it will be 

appropriate to allow long term care 

facilities 7 or more years to install 

automatic sprinkler systems, as some 

commenters suggested. While such a 

lengthy phase-in period will allow more 

than ample time for facilities to 

complete the installation process, it may 

also unnecessarily encourage facilities 

to postpone this much-needed fire 

safety improvement. In light of these 

considerations, we are finalizing a 5- 

year phase-in period. A long term care 

facility has 5 years from the date of 

publication of this final rule to purchase 

and install a fully-operational automatic 

sprinkler system throughout its 

building. A 5-year phase-in period 

balances our dual goals of improved fire 

safety and feasibility. It ensures that 

facilities begin planning for installation 

within a short period of time from the 

publication of this final rule and allows 

sufficient time for all facilities to 

complete the full installation process. 

Comment: Numerous commenters 

submitted comments regarding the exact 

fire safety codes that should be used in 

long term care facilities. Many of these 

commenters supported our proposal to 

require facilities to meet the 

requirements of the 1999 edition of 

NFPA 13 and the 1998 edition of NFPA 

25. Some of the commenters suggested 

that we require facilities to meet more 

recent editions of the NFPA standards. 

Other commenters questioned the role 

of the building codes issued by the 

International Code Council (ICC). Of 

these commenters, some suggested that 

we require facilities to meet the ICC 

codes in place of the NFPA codes. 

Others suggested that States, local 

jurisdictions, and/or facilities be given 

the option to meet either the NFPA or 

ICC codes. 

Response: While we agree that more 

recent editions of NFPA sprinkler codes 

or sprinkler codes issued by other codesetting bodies may include appropriate 

installation and maintenance 

requirements for automatic sprinkler 

systems in long term care facilities, we 

believe it is most appropriate to require 

long term care facilities to comply with 

the 1998 and 1999 editions of the NFPA 

sprinkler codes. If we require facilities 

to meet more recent editions of the 

sprinkler codes, we could be placing 

them out of compliance with the 

provisions of the 2000 edition of the 

LSC. Similarly, if we were to require or 

permit facilities to meet another 

sprinkler code issued by a separate 

code-setting body, the standards could 

be incompatible with the 2000 edition 

of the LSC. We do not believe this will 

be in the best interest of facilities and 

their residents. 

Comment: A substantial number of 

commenters submitted thoughts in 

response to our discussion of potentially 

adopting the 2006 edition of the LSC, 

which requires existing long term care 

facilities to install automatic sprinkler 

systems. Commenters were nearly 

evenly divided in their support of or 

opposition to adopting the 2006 LSC. 

The commenters who supported 

adopting the 2006 LSC stressed that this 

edition is the most recent version and 

has the potential to increase fire safety 

levels in all health care facilities. The 

commenters who did not support 

adopting the 2006 LSC cited potential 

delays in implementing the automatic 

sprinkler requirement and overall 

facility burden as key factors in their 

recommendation. 

Response: The 2006 edition of the 

LSC made numerous changes to the 

requirements applicable to long term 

care facilities. The most substantial 

change in the 2006 LSC is the 

requirement that all long term care 

facilities must have automatic sprinkler 

systems. However, since we are 

addressing that issue in this rulemaking, 

we do not believe it should affect our 

evaluation of the overall merits of the 

2006 LSC. We do not believe that the 

other changes in the 2006 edition of the 

LSC offers substantial improvements in 

the level of fire safety in long term care 

facilities that outweigh the additional 

burden to facilities of complying with 

the requirements of a newer edition of 

the LSC at this time. Therefore, we are 

not adopting the 2006 edition of the LSC 

at this time. We will continue to 

participate in the NFPA consensus 

process as the NFPA revises and refines 

subsequent editions of the LSC. 

Additionally, we will carefully examine 

the 2009 edition of the LSC when it is 

published for possible incorporation by 

reference in our regulations governing 

long term care facilities and a variety of 

other health care provider types. 

IV. Provisions of the Final Regulations 

In this final rule we are adopting the 

provisions as set forth in the October 27, 

2006 proposed rule with the following 

revisions: 

• Deleted proposed § 483.70(a)(7)(iv), 

the sunset provision. 

• Added a 5-year phase-in date to 

§ 483.70(2)(8)(i). 

V. Collection of Information 

Requirements 

Under the Paperwork Reduction Act 

of 1995, we are required to provide 30- 

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 solicited public comment on each 

of these issues for the following sections 

of this document that contain 

information collection requirements: 

In summary, § 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 WaterBased Fire Protection Systems. This 

section states that facilities will 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 facilities will utilize the 

services of a contractor for all 

inspection, testing, and maintenance 

activities, including documentation of 


hsrobinson on PROD1PC76 with RULES
47082 Federal Register / Vol. 73, No. 157 / Wednesday, August 13, 2008 / Rules and Regulations 

those activities. Therefore, no burden 

will be associated with the development 

of the documentation. The burden 

associated with this requirement, is the 

time and effort necessary for facilities to 

maintain documentation of inspections, 

tests, and maintenance activities in 

accordance with the standards outlined 

in the NFPA 25. 

The burden associated with these 

requirements is estimated to be 1 hour 

per long term care facility. Therefore, 

we estimate it will take 2,446 total 

annual hours (1 hour × 2,446 estimated 

affected long term care facilities) to 

satisfy this burden. 

These requirements are not effective 

until they are approved by OMB. 

VI. Regulatory Impact Analysis 

A. Overall Impact 

We have examined the impacts of this 

rule as required by Executive Order 

12866 (September 1993, Regulatory 

Planning and Review), the Regulatory 

Flexibility Act (RFA) (September 16, 

1980, Pub. L. 96–354), section 1102(b) of 

the Social Security Act, the Unfunded 

Mandates Reform Act of 1995 (Pub. L. 

104–4), Executive Order 13132 on 

Federalism, and the Congressional 

Review Act (5 U.S.C. 804(2)). 

Executive Order 12866 directs 

agencies to assess all costs and benefits 

of available regulatory alternatives and, 

if regulation is necessary, to select 

regulatory approaches that maximize 

net benefits (including potential 

economic, environmental, public health 

and safety effects, distributive impacts, 

and equity). A regulatory impact 

analysis (RIA) must be prepared for 

major rules with economically 

significant effects ($100 million or more 

in any 1 year). We have examined this 

rule, and we have determined that this 

rule would meet the criteria to be 

considered economically significant, 

and it would meet the criteria for a 

major rule. This determination is based 

on 2,446 long term care facilities being 

required to install automatic sprinkler 

systems at an estimated cost of $7.95 per 

square foot, for a total cost of about $847 

million over the 5-year phase-in period. 

Hence, in any one year costs in excess 

of $100 million will be incurred 

regardless of the decisions of individual 

facilities as to when to make the 

investment. 

The estimated cost for installing a 

sprinkler system throughout an existing 

average size unsprinklered facility 

(50,000 square feet to be sprinklered at 

$7.95 per square foot) will be $397,500. 

Because these systems are capital 

investments, their costs are properly 

amortized over time in estimating their 

impact on facility finances. We believe 

that a reasonable estimate of the useful 

life of a sprinkler system is 20 years. 

The projected installation cost of this 

requirement will account for 

approximately one fourth of one percent 

of an average unsprinklered facility’s 

actual revenue over a 20-year period. 

The estimated cost for installing a 

sprinkler system throughout an existing 

average size partially sprinklered 

facility (37,125 square feet to be 

sprinklered at $7.95 per square foot) 

will be $295,143. The projected 

installation cost of this requirement will 

account for approximately one fifth of 

one percent of an average partially 

sprinklered facility’s actual revenue 

over a 20-year period. 

The RFA requires agencies to analyze 

options for regulatory relief of small 

entities. For purposes of the RFA, small 

entities include small businesses, 

nonprofit organizations, and small 

government jurisdictions (including 

tribal governments). Individuals and 

States are not included in the definition 

of a small entity. For purposes of the 

RFA, most long term care facilities are 

considered to be small entities, either by 

virtue of their nonprofit or government 

status or by having revenues of less than 

$12.5 million in any one year. The latest 

SBA size standards classify a ‘‘Nursing 

Care Facility’’ under North American 

Industry Classification System (NAICS) 

as code 623110, and as ‘‘small’’ if its 

annual revenues fall below $12.5 

million (for details, see the Small 

Business Administration’s Table of 

Small Business Size Standards at 

http://www.sba.gov/idc/groups/public/ 

documents/sba_homepage/ 

serv_sstd_tablepdf.pdf.) According to 

our statistics, long term care facilities, 

all of which will be required to have 

sprinkler systems throughout their 

buildings, received a total of $124.9 

billion in revenue in 2006 (National 

Health Expenditures Accounts, http:// 

www.cms.hhs.gov/ 

NationalHealthExpendData/ 

02_NationalHealth 

AccountsHistorical.asp). Also according 

to CMS data, there were 15,941 nursing 

facilities in operation at that time. The 

average facility therefore had annual 

revenue of $7.8 million and thus fell 

well below the SBA size threshold. 

Taking into account both typical 

revenue, and that non-profit facilities of 

any size are ‘‘small entities’’ within the 

meaning of the RFA, we assume for 

purposes of our analysis that all LTC 

facilities are ‘‘small entities’’ for 

purposes of the RFA. Although the 

average LTC facility has revenues well 

below the SBA size threshold, we have, 

as described in what follows, also 

analyzed impacts on entities that fall 

even farther below the size threshold. 

(Note: In the following paragraphs the 

terms ‘‘average facility’’ and ‘‘smaller 

facility’’ are strictly based on a revenue 

metric, just as are most of the SBA size 

thresholds, including that for NAICS 

code 623110. That is, the terms only 

describe facilities in terms of the 

amount of annual revenue.) 

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 analysis, we 

chose to assess the financial impact of 

this final rule on a facility with average 

revenue and a facility with a much 

smaller revenue (50 percent below the 

mean). An average facility had 

approximately $7,837,714 in revenue in 

2006. A facility with revenue 50 percent 

below this average received $3,918,857, 

or less than one third of the amount set 

by SBA to define ‘‘small.’’ Over the 20- 

year amortization period revenues of an 

average facility will be about $157 

million. The ‘‘smaller’’ facility will have 

revenues of about $78 million over the 

same 20-year amortization period. We 

calculate that the projected cost of this 

requirement will account for about one 

fourth of one percent of an average 

unsprinklered ‘‘smaller’’ facility’s actual 

revenue over the 20-year period. Taking 

into account their smaller size and 

lower investment cost, the projected 

cost of this requirement will account 

about one fifth of one percent of a 

partially sprinklered ‘‘smaller’’ facility’s 

actual revenue over the 20-year period. 

We are assuming that a smaller facility’s 

square footage and number of beds are 

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. According to CMS data from 

December 2007, there (see Table 3 later 

in this analysis) the median bed size of 

LTC facilities is about 100 beds, and 

there are 433 unsprinklered or partially 

sprinklered long term care facilities that 

have fewer than 50 beds and 

presumably meet our revenue definition 

of a ‘‘smaller facility.’’ Hence, there are 

relatively few very small (‘‘smaller’’) 

facilities that will be affected by this 

rule. That said, a total of about 2,446 

unsprinklered or partially sprinklered 

facilites will be affected, and the great 

majority of these (we assume all) are 

‘‘small entities’’ under the RFA (again, 

see Table 3 for the size distribution of 

affected entities). 

As a result of these calculations, and 

because we normally only regard an 


hsrobinson on PROD1PC76 with RULES
Federal Register / Vol. 73, No. 157 / Wednesday, August 13, 2008 / Rules and Regulations 47083 

impact that reaches several percent of 

annual revenue as ‘‘significant’’ under 

the RFA, we certify that this final rule 

would not have a significant impact on 

a substantial number of small entities. 

However, some facilities may face 

financing or other problems that 

concentrate the impact and make its 

effect proportionally much larger than 

would otherwise be the case. While we 

do not believe that there would be a 

substantial number of facilities in this 

circumstance, we have prepared a 

voluntary regulatory flexibility analysis. 

This Regulatory Impact Analysis 

section, taken together with the 

remainder of the preamble, constitutes 

this analysis. 

In addition, section 1102(b) of the Act 

requires us to prepare a regulatory 

impact analysis if a rule may have a 

significant impact on the operations of 

a substantial number of small rural 

hospitals. This analysis must conform to 

the provisions of section 604 of the 

RFA. For purposes of section 1102(b) of 

the Act, we define a small rural hospital 

as a hospital that is located outside of 

a metropolitan statistical area and has 

fewer than 100 beds. We know that 8.41 

percent of long term care facilities, 

1,332 nationwide, are located in 

hospitals, but we do not know how 

many of those hospitals are small rural 

hospitals. However, it is likely that the 

affected number is quite small. 

Applying the same percentages that 

apply to the long term care universe to 

the 1,332 long term care facilities 

located in hospitals, we estimate that 

1,125 are fully sprinklered, 176 are 

partially sprinklered, and only 31 are 

not sprinklered. Using these estimates 

and the preceding cost amortization 

calculations, we have concluded that 

this final rule will not have a significant 

impact on the operations of a substantial 

number of small rural hospitals and that 

a regulatory flexibility analysis is not 

required. Our voluntary analysis, 

however, applies equally to facilities 

regardless of location or affiliation and 

hence covers hospital-based facilities. 

Section 202 of the Unfunded 

Mandates Reform Act of 1995 (UMRA) 

also requires that agencies assess 

anticipated costs and benefits before 

issuing any rule whose mandates 

require spending in any one year by 

either the private sector or by State, 

local, and tribal governments of $100 

million in 1995 dollars, updated 

annually for inflation. That threshold 

level is currently approximately $130 

million. This final rule does contain 

mandates that will impose annual 

spending costs on private long term care 

facilities of $154 million, and on public 

long term care facilities of $16 million, 

based on an estimated cost of about 

$847 million distributed over a 5-year 

phase-in period, for an average annual 

cost of about $170 million for all public 

and private facilities. Estimated impacts 

on State, local, and tribal governments 

are well below the UMRA threshold, 

since over ninety percent of long term 

care facilities are privately owned, as 

shown the Federalism analysis that 

follows. With respect to private sector 

facilities, this Regulatory Impact 

Section, together with the remainder of 

the preamble, constitutes the analysis 

required under UMRA. 

Note: For a more detailed discussion of the 

cost estimates, see part B.2 of this section.) 

In the proposed rule we estimated that this 

rule would cost $47.8 to $69.9 million, $73.5 

to $107.5 million, and $107.7 to $157.6 

million annually. These estimates were based 

on example phase-in periods of 10 years, 7 

years, and 5 years, and cost-per-square-foot 

estimates of $4.10, $5.50, and $6.10, 

respectively. We sought public comment on 

the length of an appropriate phase-in period, 

and received suggestions ranging from 18 

months to 15 years. The most frequently 

suggested phase-in period was 3–5 years. We 

selected the longer phase-in period, 5 years, 

to help mitigate the impact of this rule upon 

long term care facilities. We also increased 

our cost-per-square-foot estimates to reflect 

increases in construction costs that have 

occurred since publication of the proposed 

rule. 

Executive Order 13132 establishes 

certain requirements that an agency 

must meet when it promulgates a final 

rule that imposes substantial direct 

compliance costs on State or local 

governments, preempts State law, or 

otherwise has Federalism implications. 

Of the 2,446 facilities that will be 

affected by this final rule, 216 facilities 

(8.83 percent of all affected facilities) 

are owned by State and local 

governments. The majority of these 

facilities (188) are already partially 

sprinklered. Of the 188 partially 

sprinklered facilities, 31 have less than 

50 resident beds, 43 have 50–99 resident 

beds, 63 have 100–199 resident beds, 

and 49 have 200 or more resident beds. 

We estimate that it will cost on average 

about $14.24 million annually for 5 

years to install sprinklers throughout 

the unsprinklered portions of these 

facilities. Of the remaining 30 

completely unsprinklered facilities, 13 

have less than 50 resident beds, 8 have 

50–99 resident beds, 7 have 100–199 

resident beds, and 2 have 200 or more 

resident beds. We estimate that it will 

cost on average about $2.12 million 

annually for 5 years to install sprinklers 

throughout these unsprinklered 

facilities. The total of these annual 

average cost estimates, about $16 

million, is negligible in the context of 

overall State and local budgets and as a 

capital expense can be financed over a 

period of years by borrowing. Therefore, 

we believe that this final rule will not 

impose substantial direct compliance 

costs on State or local governments, and 

thus has no Federalism implications. 

B. Anticipated Effects 

1. Benefits 

a. 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 will 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. 

According to the U.S. Census Bureau, 

in 2006, the average age of a long term 

care facility resident was 83.2 years. 

This number reflects the overall 

demographic trend in long term care 

facilities toward an older patient 

population. In 2003 (the most recent 

year of data available), the average life 

expectancy for an individual at age 85 

was 6.6 years (Older Americans Update 

2006: Key Indicators of Well-Being. 

Federal Interagency Forum on AgingRelated Statistics. http:// 

www.agingstats.gov/agingstatsdotnet/ 

Main_Site/Data/2006_Documents/ 

Health_Status.pdf). This means that an 

85-year-old long term care facility 

resident could expect to live an average 

of 6.6 more years. We acknowledge that 

the average age of a long term care 

facility resident (83.2 years) is slightly 

younger than the 85 year data point 

used to assess average life expectancy; 

however, we believe that using the life 

expectancy of an 85 year old is an 


hsrobinson on PROD1PC76 with RULES
47084 Federal Register / Vol. 73, No. 157 / Wednesday, August 13, 2008 / Rules and Regulations 

acceptable proxy for the life expectancy 

of an 83.2 year old. 

Based on a life expectancy at age 85 

of 6.6 years, we estimate that sprinklers 

in these two fires would have added 165 

life years (25 lives saved × 6.6 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). We estimate that 25 

percent (575) of the 2,300 facilities that 

reported fires annually during the 1994–

1999 time period 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 conducted by CMS following 

the results of the GAO report. 

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 and partially 

sprinklered 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 

statistically would be expected to 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 will be 1 death 

(57.5 percent × 1.9 deaths per 1,000 

fully sprinklered facility fires according 

to the 2004 GAO report = 1) in those 

same 575 facilities. Installing sprinklers 

in unsprinklered and partially 

sprinklered buildings would, based on 

these estimates, save 5 lives annually. 

TABLE 1—ESTIMATED ANNUAL FIRE DEATHS

Number of estimated annual fire-related 

deaths in unsprinklered long term care 

facilities 

Number of estimated annual fire-related 

deaths if those facilities were sprinklered 

Number of estimated annual lives saved by 

sprinklers 

6 1 5 

Given the estimate described above 

that installing and maintaining sprinkler 

systems in existing long term care 

facilities will save 5 lives annually, we 

estimate that sprinklers will save 33 life 

years annually (5 lives saved × 6.6 years 

gained per life). 

TABLE 2—LIFE YEARS

Number of life years 

gained per life saved 

Number of life years 

gained annually 

6.6 33 

There are a wide variety of estimates 

regarding the statistical value of a life or 

of a quality-adjusted life year. For 

example, 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 (see R.A. 

Hirth, et al, ‘‘Willingness to Pay for 

Quality-Adjusted Life Year: In Search of 

a Standard,’’ Medical Decision Making, 

Volume 20, Number 3, July–Sep. 2000). 

Due to the fact that there is no widely 

accepted standard value, we refrained in 

the proposed rule from estimating the 

statistical value of each life or life year 

that will be gained as a result of a final 

rule requiring sprinklers in all long term 

care facilities. However, a recent FDA 

rule used an estimate of $5 million as 

the value of a statistical life and derived 

from this figure values of between 

$213,000 (at a 3 percent discount rate) 

and $373,000 (at a 7 percent discount 

rate) for a quality adjusted life-year 

(QALY). (See the FDA Final Rule on 

‘‘Medical Devices: Patient Examination 

and Surgeon’s Gloves; Test Procedures 

and Acceptance Criteria,’’ December 19, 

2006, 71 FR 75865, as corrected January 

19, 2007, 72 FR 2436.) These are 

intended to be rough estimates of 

societal willingness to pay for saving a 

‘‘statistical life’’ (not a particular person) 

or for adding a year of life that does not 

involve total disability. It is not a settled 

issue in the literature of valuation of life 

as to how well these estimates fit an 

elderly population, and we use them 

here only to provide a rough estimate as 

to one of the major benefits of this final 

rule in the same dollar metric as costs. 

Applying these estimates, the lifesaving benefits of this final rule once all 

facilities are compliant will be 

approximately $25 million dollars 

annually based on a value of $5 million 

per statistical life saved. These benefits 

accrue over the entire 20-year horizon 

during which automatic sprinkler 

systems save lives. Hence, undiscounted 

future benefits from life saving would be 

as much as $500 million ($5 million 

times 5 lives times 20 years). 

There are additional life-year benefits, 

to the extent that residents who survive 

a fire are nonetheless physically injured 

in ways that that greatly reduce their 

future quality of life. For example, a 

person who spends months in the 

hospital recovering from burn injuries 

and the remainder of his life partially 

incapacitated by those injuries, or a 

person whose lungs are permanently 

damaged by smoke inhalation, do not 

have the same good health that they 

would have enjoyed absent the fire. We 

do not have at this time any basis for 

estimating the amount of severe 

morbidity caused by facility fires that 

sprinklers can mitigate, but it could be 

very substantial, likely approaching and 

perhaps exceeding the number of lifeyears lost to mortality. For purposes of 

this analysis, we assume that it equals 

the mortality QALYs, and that total 

benefits from morbidity reduction range 

from $7 to $10 million a year (33 life 

years times 20 years time either 

$213,000 or $373,000). 

The FDA estimates were based on a 

‘‘willingness to pay’’ analysis of wage 

differentials necessary to attract labor to 

riskier occupations. Such analyses have 

shown that people demand significantly 

higher wages to accept even a small 

additional risk of death. The estimated 

value of an additional year of life is 

based on life expectancy in the FDA 

analysis. However, there are other ways 

to create such estimates and many 

studies have done so. For example, an 

estimate using data on rural interstate 

highway driving speeds found that the 

value of a statistical life could be 

estimated as between $1.6 and $5.9 

million (Orley Ashenfelter, ‘‘Measuring 

the Value of a Statistical Life: Problems 


hsrobinson on PROD1PC76 with RULES
Federal Register / Vol. 73, No. 157 / Wednesday, August 13, 2008 / Rules and Regulations 47085 

and Prospects,’’ Working Paper 11916, 

National Bureau of Economic Research, 

January 2006). As another example, a 

recent study of the willingness to pay 

for better health care found that a 

reasonable estimate of the value of a 

QALY lies between $183,000 and 

$264,000 per life year (R. Scott 

Braithwaite, et al, ‘‘What Does the Value 

of Modern Medicine Say About the 

$50,000 per Quality-Adjusted Life-Year 

Decision Rule?,’’ Medical Care, Volume 

46, Number 4, April 2008). Thus, the 

estimates used by the FDA, and in this 

CMS analysis, are broadly consistent 

with estimates from other sources, such 

as the Hirth and Braithwaite studies. 

The reasonableness of applying such 

estimates to an elderly population is 

unclear, particularly when that 

population is, by definition, at least 

temporarily unable to live outside an 

institutional setting. However, the 

general approach used most often in the 

literature is to use the same value of a 

statistical life for persons of all ages. As 

to value of a life-year, there is 

considerable evidence in the literature 

that the kinds of disabilities most 

commonly found in nursing homes, 

such as mobility and mental 

impairments, do not substantially 

reduce the value of a life-year (see 

Chaim M. Bell, et al, ‘‘An Off-the-Shelf 

Help List: A comprehensive Catalog of 

Preference Scores from Published CostUtility Analyses,’’ Medical Decision 

Making, Volume 21, Number 4, JulyAugust 2001). For example, on a scale 

of zero to 1, where zero is represented 

by a persistent vegetative state and 1 is 

best attainable health, this synthesis 

shows that disability after a hip fracture 

is rated at .8, and even after major stroke 

from .2 to .5. Absent a compelling 

rationale to the contrary, we therefore 

use the full values of a statistical life 

and a QALY in our analysis. 

A few commenters questioned our 

methodology for assessing the potential 

life-saving benefits of installing and 

maintaining automatic sprinkler 

systems. However, these commenters 

did not suggest an alternate method for 

assessing these potential benefits. 

Therefore, we reaffirm the methodology 

and results described above. 

b. 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 from existing data, 

we believe that the amount of damage 

prevented will be substantial, and that 

this prevention will benefit affected 

long term care facilities. 

Preventing property damage and loss 

may also reduce the amount of money 

paid by insurers to cover fire-related 

losses. Such reductions may help 

control long term care facility insurance 

costs and reduce any spill-over effect for 

other insurance markets. Again, these 

benefits are not easy to estimate reliably 

from existing data. However, we believe 

that they should be considered as part 

of the overall analysis of the benefits of 

purchasing, installing, and maintaining 

automatic sprinkler systems in long 

term care facilities. 

For purposes of estimating overall 

benefits and costs, we believe that an 

estimate of about $26 million a year 

would not be unreasonable. We base 

this on the following calculations. First, 

as previously discussed there are 

approximately 2,300 structural fires 

annually in long term care facilities, a 

rate of about one fire per every seven 

facilities. However, we estimate that the 

number of fires in unsprinklered or 

partially sprinklered facilities is far 

higher, with these 2,446 facilities 

accounting for one fourth of all 

structural fires, or about one fire per 

every four such facilities (575 fires in 

2,446 facilities). Assuming that the rate 

could be reduced to the 13 percent rate 

in fully sprinklered facilities (1,725 fires 

in 13,495 facilities), approximately 260 

structural fires a year would be 

prevented. We have no specific data for 

estimating the dollar cost of fighting 

these fires and restoring the properties, 

but assuming illustratively that the 

average cost of a structural fire is 

$100,000, total annual savings would be 

on the order of $26 million a year. 

c. 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 will 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 will be damaged by 

a fire will 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. In 

particular, fewer residents would be 

forced into a change in residence, a 

disruption that often affects residents’

physical and mental well-being 

severely. Finally, by limiting the 

affected area and duration of disruption, 

an affected facility will reduce the 

number of paid patient-days that it 

loses. While we cannot quantify most of 

these benefits to long term care facilities 

and their residents, we believe that they 

are substantial. Assuming illustratively 

that they equal half the cost of a fire 

prevented, annual savings would be on 

the order of $6.5 million a year. 

d. Decreasing Legal Liability and 

Insurance Cost 

As a result of installing sprinklers, 

facilities will greatly reduce their 

potential exposure to legal costs and 

legal damages, as well as reduce their 

costs for liability insurance. Again, we 

cannot quantify these benefits but they 

could be very substantial. For example, 

were a court to find that a facility was 

negligent either in not installing a stateof-the-art system, or in being unable to 

save residents who would have been 

saved had such a system been in place, 

tort liability could be imposed. Absent 

any way to predict what might occur 

(which might depend, for example, not 

only on specific factual circumstances 

but also on the tort law in the state in 

which such a fire might occur), we do 

not estimate the dollar value of these 

benefits. 

e. Reducing Major Medical Care Costs 

Fires cause morbidity as well as 

mortality. Not all residents who suffer 

deadly burns die immediately. 

Treatment of severely burned persons is 

among the most expensive kinds of 

medical care. Other effects of fires that 

require medical treatment include 

smoke inhalation and injuries cause by 

falls when fleeing from rooms affected 

by fire or smoke. No data are available 

to us on the extent of these medical 

costs, and hence on costs prevented by 

this final rule, but they are likely to be 

substantial. Assuming illustratively that 

there are ten expensive medical care 

cases prevented for each death 

prevented by this rule, and that such 

cases average $100,000, annual benefits 

would be $5 million (5 × 10 × $100,000). 

2. Costs 

This final rule requires 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 final rule 

also allows long term care facilities to 

install automatic sprinkler systems over 

a 5-year phase-in period. 

Number and Size of Affected Facilities 

Following publication of the GAO 

report, CMS incorporated a data 

collection element on the long term care 

facility survey form. When completing a 


hsrobinson on PROD1PC76 with RULES
47086 Federal Register / Vol. 73, No. 157 / Wednesday, August 13, 2008 / Rules and Regulations 

survey, a long term care facility 

surveyor must note whether the facility 

is fully sprinklered, partially 

sprinklered, or unsprinklered. Based on 

data collected during the survey 

process, we know that 13,391 facilities 

are fully sprinklered, 2,086 facilities are 

partially sprinklered, and 360 facilities 

are unsprinklered. The following table 

groups the partially and unsprinklered 

facilities by the number of beds. 

TABLE 3—NUMBER OF AFFECTED FACILITIES BY SIZE

<50 beds 50–99 beds 100–199 beds 200+ beds 

Partially sprinklered ......................................................................................... 315 675 870 226 

Unsprinklered ................................................................................................... 118 128 102 12 

The number of resident beds in a 

facility strongly corresponds to its 

physical size. Simply put, larger 

buildings have more resident beds, and 

smaller buildings have fewer resident 

beds. Therefore, based on the number of 

beds in a facility, we are able to estimate 

the square footage of a long term care 

facility. For purposes of our analysis, we 

estimate that a long term care facility 

has 500 total square feet for each 

resident bed. This estimate, which 

includes space for the resident’s room, 

community spaces, and administrative 

spaces, is based on discussions with 

architects and engineers who are 

familiar with the design of older long 

term care facilities. Therefore, for 

purposes of our analysis, an average 

facility with fewer than 50 beds is 

24,500 sq ft, 50–99 beds is 37,000 sq ft, 

100–199 beds is 74,500 sq ft, and 200+ 

beds is 99,501 sq ft. When estimating 

the cost of installing an automatic 

sprinkler system in an unsprinklered 

facility, we use these square footage 

estimates. 

However, these estimates do not 

reflect the area that must still be 

sprinklered in a partially sprinklered 

long term care facility. By definition, a 

partially sprinklered facility already has 

an automatic sprinkler system in one or 

more sections of the facility. 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 

final 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 will 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 will 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 will 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 will be 

installed for 75,000 square feet (75 

percent of minimum square footage in 

this size category). 

a. 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 final 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 facilityspecific sprinkler system needs. Long 

term care facilities that are based in 

other health care facilities, such as 

hospitals, are required by this final 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 

will have different installation costs 

than freestanding facilities with similar 

resident bed and square footage 

numbers. 

We estimate that it will cost $7.95 per 

square foot to purchase and install a 

sprinkler in an existing facility. 

According to the Architects, 

Contractors, Engineers Guide to 

Construction Costs, 2008 Edition by 

Design and Construction Resources, 

purchasing and installing sprinklers in 

new long term care facilities costs $2.65 

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 will be affected 

by this final rule. Note, however, that 

the economic costs of financing this 

capital investment would not be the 

gross cost of borrowing, but the much 

smaller opportunity cost of the capital 

devoted to sprinklers rather than some 

other investment. Furthermore, to the 

potentially substantial extent that 

facilities gain from this investment 

(reduced disruption, revenue loss, etc. 

as previously discussed) the 

opportunity cost may be very low. 

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 

three times more than purchasing and 

installing sprinklers in new long term 

care facilities. In the proposed rule, we 

presented a range of cost per square foot 

estimates from two to three times the 

costs of installation in a new building. 

Commenters indicated that the lower 

estimates in this range did not reflect 

the actual costs incurred by existing 


hsrobinson on PROD1PC76 with RULES
Federal Register / Vol. 73, No. 157 / Wednesday, August 13, 2008 / Rules and Regulations 47087 

long term care facilities. Therefore, we 

eliminated the lower range and only use 

the highest estimate (three times the 

cost of installing sprinklers in new 

construction, $7.95). 

b. 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 cost per square foot. We 

estimate that this final rule will cost 

$846,680,105 over the 5-year phase-in 

period, or an average of $169,336,021 

annually for 5 years for all affected 

partially sprinklered and unsprinklered 

long term care facilities. 

TABLE 4—ONE-TIME INSTALLATION COST FOR PARTIALLY SPRINKLERED FACILITIES AT $7.95 PER SQUARE FOOT BY SIZE

>50 beds 

(18,375 sq ft to be 

sprinklered) 

50–99 beds 

(27,750 sq ft to be 

sprinklered) 

100–199 beds 

(55,875 sq ft to be 

sprinklered) 

200+ beds 

(75,000 sq ft to be 

sprinklered) 

Cost per facility ........................................................................ $146,081 $220,613 $444,206 $596,250 

Number of affected facilities .................................................... 315 675 870 226 

Cost for all facilities ................................................................. $46,015,515 $148,913,775 $386,459,220 $134,752,500 

TABLE 5—ONE-TIME COST FOR UNSPRINKLERED FACILITIES AT $7.95 PER SQUARE FOOT BY SIZE

>50 beds 

(24,500 sq ft to be 

sprinklered) 

50–99 beds 

(37,000 sq ft to be 

sprinklered) 

100–199 beds 

(74,500 sq ft to be 

sprinklered) 

00+ beds 

(99,501 sq ft to be 

sprinklered) 

Cost per facility ........................................................................ $194,775 $294,150 $592,275 $791,033 

Number of affected facilities .................................................... 118 128 102 12 

Cost for all facilities ................................................................. $22,983,450 $37,651,200 $60,412,050 $9,492,395 

TABLE 6—TOTAL ONE-TIME INSTALLATION COST FOR ALL FACILITIES BY SIZE

>50 beds 50–99 beds 100–199 beds 200+ beds 

Partially sprinklered ................................................................. $46,015,515 $148,913,775 $386,459,220 $134,752,500 

Unsprinklered ........................................................................... 22,983,450 37,651,200 60,412,050 9,492,395 

Total .................................................................................. 68,998,965 186,564,975 446,871,270 144,244,895 

We do not expect all affected long 

term care facilities to have all necessary 

resources immediately available to 

purchase and install automatic sprinkler 

systems. Therefore, we are allowing all 

facilities up to five years from the date 

of publication of this final rule to 

purchase and install sprinklers. While 

we will encourage all facilities to 

immediately begin the process of 

purchasing and installing sprinklers, we 

understand that some facilities will 

choose to wait until later in the phasein period to begin this process. 

Therefore, we expect that the one-time 

cost of this final rule will be distributed 

over a period of several years as 

facilities nationwide will likely stagger 

their installation schedules to meet their 

individual needs and circumstances. We 

estimate that long term care facilities 

will spend, on average, $169,336,021 

annually for five years to purchase and 

install automatic sprinkler systems 

throughout their facilities. 

c. 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 must test, 

inspect, and maintain their sprinkler 

systems in accordance with the 1998 

edition NFPA 25. We estimate that long 

term care facilities will 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 will take 6 hours, at a cost of 

$250. Based on these assumptions, we 

estimate that long term care facilities 

will 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 will have to be properly trained 

and, in some States and local 

jurisdictions, they will have to be 

licensed. Generally, long term care 

facilities will 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 will 

likely contract with another company to 

meet their testing, inspection, and 

maintenance needs. However, long term 

care facilities are not required by this 

rule to contract for these services. In 

addition to actually conducting the 

necessary testing, inspection, and 

maintenance activities, we believe that 

a contract will also include a provision 

that the contractor prepares adequate 

documentation of the activities 

conducted. We estimate that the total 

cost of meeting these requirements will 

be $1,000 ($150 × 4 quarterly 

inspections = $600 + $250 annual trip 

test + $150 general maintenance costs = 

$1,000). We estimate that the total 

maintenance cost for all affected 

facilities will be $2,446,000. We 

recognize that some commenters 

suggested that this estimate is not 

sufficient to capture the cost of 

maintaining an automatic sprinkler 

system. However, the commenters did 

not suggest a more suitable method for 

assessing the potential maintenance 

costs or a more suitable dollar estimate 

for such costs. Therefore, we reaffirm 

our original estimates. 


hsrobinson on PROD1PC76 with RULES
47088 Federal Register / Vol. 73, No. 157 / Wednesday, August 13, 2008 / Rules and Regulations 

In addition, all long term care 

facilities that will be affected by this 

final regulation are 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 will take 2,446 total 

annual hours (1 hour × 2,446 estimated 

affected long term care facilities) to meet 

this requirement. This documentation 

maintenance requirement will cost an 

affected facility $19 a year, based on an 

hourly rate of $19 for an office employee 

($19 per hour × 1 hour). The total 

annual cost of this final documentation 

requirement will be $46,474 ($19 per 

facility × 2,446 facilities). 

3. Summary of Estimated Costs and 

Benefits 

Taking into account all these 

categories of benefits and costs, and 

their timing, we believe that this final 

rule creates a substantial excess of 

benefits over costs at a social discount 

rate of 3 percent and a slight excess of 

benefits over costs at 7 percent. As 

shown in the table, costs are heavily 

concentrated in the first five years (we 

assume one-fifth is invested in each of 

the five years allowed for compliance) 

while benefits accrue over the entire 

20-year life of these investments. 


hsrobinson on PROD1PC76 with RULES
Federal Register / Vol. 73, No. 157 / Wednesday, August 13, 2008 / Rules and Regulations 47089 

TABLE

7

—

TOTAL

FIRE

SPRINKLER

SYSTEM

COSTS AND

BENEFITS

Year 

Benefits Costs 

Statistical 

lives saved 

Life years 

saved from 

mortality 

reduction 

Life years 

saved from 

morbidity 

reduction 

Monetized 

statistical 

lives 

($M) 

Monetized 

morbidity 

reduction 

($M)* 

Decreasing 

loss of 

property 

($M) 

Decreasing 

fire recovery 

disruption 

and time 

($M) 

Reducing 

major 

medical 

costs 

($M) 

Total 

benefits 

($M) 

Installation 

($M) 

Maintenance 

($M) 

Total 

costs 

($M) 

1 ..................................... 1 6.6 6.6 5 1 5 2.6 1 15.2 169 0.5 169.5 2 ..................................... 2 13.2 13.2 10 3 13 6.5 2 34.3 169 1.0 170.0 3 ..................................... 3 19.8 19.8 15 4 16 7.8 3 45.6 169 1.5 170.5 4 ..................................... 4 26.4 26.4 20 6 21 10.4 4 60.8 169 2.0 171.0 5 ..................................... 5 33 33 25 7 26 13 5 76.0 169 2.5 171.5 6 ..................................... 5 33 33 25 7 26 13 5 76.0 0 2.5 2.5 7 ..................................... 5 33 33 25 7 26 13 5 76.0 0 2.5 2.5 8 ..................................... 5 33 33 25 7 26 13 5 76.0 0 2.5 2.5 9 ..................................... 5 33 33 25 7 26 13 5 76.0 0 2.5 2.5 10 ................................... 5 33 33 25 7 26 13 5 76.0 0 2.5 2.5 11 ................................... 5 33 33 25 7 26 13 5 76.0 0 2.5 2.5 12 ................................... 5 33 33 25 7 26 13 5 76.0 0 2.5 2.5 13 ................................... 5 33 33 25 7 26 13 5 76.0 0 2.5 2.5 14 ................................... 5 33 33 25 7 26 13 5 76.0 0 2.5 2.5 15 ................................... 5 33 33 25 7 26 13 5 76.0 0 2.5 2.5 16 ................................... 5 33 33 25 7 26 13 5 76.0 0 2.5 2.5 17 ................................... 5 33 33 25 7 26 13 5 76.0 0 2.5 2.5 18 ................................... 5 33 33 25 7 26 13 5 76.0 0 2.5 2.5 19 ................................... 5 33 33 25 7 26 13 5 76.0 0 2.5 2.5 20 ................................... 5 33 33 25 7 26 13 5 76.0 0 2.5 2.5 Undiscounted Total ........ 90 594 594 450.0 126.5 470.6 235.3 90.0 1,372.4 845.0 45.0 890.0 Net Present Value at 3% .................. .................. .................. .................. 3% .................. .................... .................. 991.4 .................... ...................... 806.4 Discount Rate ................ .................. .................. .................. .................. .................. .................. .................... .................. ................ .................... ...................... ..............Net Present Value at 7% 

Discount Rate* ........... .................. .................. .................. .................. 7% .................. .................... .................. 722.4 .................... ...................... 715.0 

* Estimate at 3% discount rate, shown in table, uses a value of $213,000 per QALY; estimate at 7% uses a value of $373,000 per QALY. 


hsrobinson on PROD1PC76 with RULES
47090 Federal Register / Vol. 73, No. 157 / Wednesday, August 13, 2008 / Rules and Regulations 

The Office of Management and Budget 

has stated that the value of a statistical 

life could be put anywhere between $1 

and $10 million (in practice a number 

as low as $1 million is almost never 

used). Clearly using the lower end of 

this range would greatly reduce the 

benefits of this final rule, and using the 

higher end would greatly increase those 

benefits. Broad (though not equally 

broad) ranges of comparisons could be 

made for most categories of benefits. 

However, only if the most conservative 

possible estimates were used for almost 

every category of benefits would total 

discounted benefits fall below 

discounted costs at a discount rate of 3 

percent. Therefore, we have chosen not 

to present a detailed sensitivity analysis. 

Our installation cost estimates, in 

contrast, do not pose remotely as wide 

a range of possibilities. In our view we 

have estimated these quite 

conservatively, and actual costs could 

easily be ten or twenty percent lower 

than the estimates we use. For example, 

the five year compliance horizon we 

provide means that many facilities will 

be able to combine sprinkler installation 

with other major renovations such that 

the cost of sprinkler installation will be 

considerably less. In fact, during the 

next five years it is quite likely that a 

considerable fraction of long term care 

providers in the older facilities most 

affected by this final rule will for 

unrelated business reasons decide to 

move to new facilities and dispose of 

their older facility buildings. We have 

not attempted to estimate the effects of 

such estimate-reducing actions. 

Finally, there is an alternative way to 

estimate and present the effects of this 

rule. Approaching these estimates from 

the perspective of cost-effectiveness 

analysis (CEA), Table 7 shows that we 

estimate a total of 1,188 undiscounted 

life years saved from both mortality and 

morbidity reductions. Subtracting from 

total monetary costs the monetary 

benefits from reduced property damage, 

disruption, and medical costs, the net 

undiscounted costs are $94.1 million. 

Undiscounted, the cost per life-year 

saved is $79,000. Discounting both life 

years and costs to present value, the cost 

per life-year saved would be $270,000 at 

a 3 percent discount rate, and $553,000 

at a 7 percent discount rate. These 

results are markedly sensitive to the 

discount rate because the benefits of the 

rule accrue roughly evenly over time, 

while the costs are highly concentrated 

in the early years. Despite the fact that 

this mostly elderly population has 

relatively few years of life expectancy 

compared to an average population, 

even at a 7 percent discount rate the 

cost per life-year saved, while higher 

than the most widely used values for a 

QALY, is within the range of accepted 

‘‘willingness to pay’’ values (e.g., the 

Hirsch study published in 2000 presents 

$450,000 as an accepted value, which 

adjusted for inflation roughly equals our 

estimate of $553,000). 

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, single 

station 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 will 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 South 

Dakota, Michigan, and the District of 

Columbia, do not have such 

requirements, resulting in almost 50 

percent or more of their long-term care 

facilities lacking sprinklers throughout 

their buildings. 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 Smaller 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 final 

minimum requirement will 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 final sprinkler requirement will 

ensure that, regardless of the size or 


hsrobinson on PROD1PC76 with RULES
Federal Register / Vol. 73, No. 157 / Wednesday, August 13, 2008 / Rules and Regulations 47091 

location of their residence, all residents 

are protected by the same basic 

minimum fire safety requirements. 

However, we did consider whether 

there might be some size or other 

threshold creating a ‘‘cut off’’ point 

below which some facilities might be 

exempted on the grounds that the cost 

of sprinkler installation is prohibitively 

expensive in relation to the number of 

residents to be protected. We were 

unable to identify any such threshold 

from the GAO study, our own analysis, 

or the comments we received. To the 

contrary, it appears that there is a linear 

or near linear relationship among 

facility revenue, facility size, number of 

facility residents, and cost of installing 

automated sprinkler systems. Nor are 

there any data suggesting that risk or 

rates of fire vary with facility size. The 

one certainty is that automated sprinkler 

systems are the most certainly effective 

method of preventing and controlling 

expansion of fires. 

We believe that the 5-year phase-in 

period will substantially help to 

mitigate the costs of installing sprinklers 

for small facilities by providing 

substantial flexibility to coordinate 

sprinkler decisions with other business 

arrangements, including financing and 

renovation decisions. Therefore, we 

have no reasonable basis to exempt any 

particular type of facility, including 

smaller facilities, from this requirement. 

3. Require Compliance in Less Than or 

More Than Five Years 

Requiring compliance with this final 

rule in less than five years would, we 

believe, be a hardship for affected long 

term care facilities. Allocating 

resources, designing a sprinkler system, 

purchasing it, obtaining necessary 

permits, installing it, and testing it all 

require a significant amount of time. In 

15 states, 20% or more of all long term 

care facilities will be required to go 

through this process, potentially 

increasing the wait time permit 

applications and for the availability of 

qualified system designers and 

installers. For these reasons, and to 

provide flexibility to coordinate with 

other business decisions, we have 

chosen to allow up to 5 years to 

complete this process. 

Allowing facilities more than 5 years 

to complete the sprinkler process could 

encourage facilities to unnecessarily 

delay the installation process. Such 

delays could unduly jeopardize resident 

and staff safety. Therefore, we believe 

that a phase-in period of more than five 

years would not be in the best interest 

of long term care facility resident and 

staff safety and would not accomplish 

the goals of this final rule. 

D. Accounting Statement 

As Required by OMB Circular A–4 

(available at http:// 

www.whitehouse.gov/omb/circulars/ 

a004/a-4.pdf), in Table 7 below, we 

have prepared an accounting statement 

showing the classification of the costs 

and benefits associated with the 

provisions of this final rule. This table 

is based on our best estimate of the 

undiscounted total cost of $845 million, 

over a five year phase in period, for the 

2,446 long term care facilities being 

required to install automatic sprinkler 

systems at an estimated cost of $7.95 per 

square foot, plus an additional $45 

million undiscounted for maintenance 

costs of about $2.5 million annually. 

After discounting to present value, total 

costs are estimated to be $806 million at 

a 3 percent discount rate, and $715 

million at a 7 percent discount rate. The 

table also reflects total benefits of $1,372 

million undiscounted, $991 million 

discounted to present value at 3 percent, 

and $722 million discounted to present 

value at 7 percent. 

TABLE 7—ACCOUNTING STATEMENT

Category 

Primary 

estimate 

($M) 

Monetized Costs ($ Millions): 

Total Cost Over 20-Year Period (PV at 0% discount 

rate) ................................... $890 

Total Cost Over 20-Year Period (PV at 3% discount 

rate) ................................... 806 

Total Cost Over 20-Year Period (PV at 7% discount 

rate) ................................... 715 

Monetized Benefits: 

Total Benefits (PV at 0% discount rate) ......................... 1372 

Total Benefits (PV at 3% discount rate) ......................... 991 

Total Benefits (PV at 7% discount rate) ......................... 722 

E. Conclusion 

We estimate that this regulation will 

result in private sector expenditures of 

$846,680,105, over a 5-year phase-in 

period, or $169,336,021 annually for 5 

years, to purchase and install automatic 

sprinkler systems throughout affected 

long-term care facilities. We also 

estimate that this regulation will result 

in private sector expenditures of 

$2,492,474 ($2,446,000 for maintenance 

+ $46,474 for documentation) annually 

to maintain those automatic sprinkler 

systems. While the effects of this 

regulation are substantial, they are 

necessary to protect the safety of longterm care facility residents and staff. 

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, Incorporation by Reference, 

Medicaid, Medicare, Nursing homes, 

Nutrition, Reporting and recordkeeping 

requirements, Safety. 

■ For the reasons set forth in the 

preamble, the Centers for Medicare & 

Medicaid Services amends 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 LongTerm Care Facilities 

■ 2. In § 483.70, add new paragraph 

(a)(8) to read as follows: 

§ 483.70 Physical environment. 

(a) * * * 

(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 

August 13, 2013. The Director of the 

Office of the Federal Register has 

approved the NFPA 13 1999 edition of 

the Standard for the Installation of 

Sprinkler Systems, 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 


hsrobinson on PROD1PC76 with RULES
47092 Federal Register / Vol. 73, No. 157 / Wednesday, August 13, 2008 / Rules and Regulations 

Protection Systems, as incorporated by 

reference. The Director of the Office of 

the Federal Register has approved the 

NFPA 25, Standard for the Inspection, 

Testing, and Maintenance of WaterBased Fire Protection Systems, 1998 

edition, 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: March 6, 2008. 

Kerry Weems, 

Acting Administrator, Centers for Medicare 

& Medicaid Services. 

Approved: May 6, 2008. 

Michael O. Leavitt, 

Secretary. 

[FR Doc. E8–18670 Filed 8–8–08; 3:30 pm] 

BILLING CODE 4120–01–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 21 

[FWS–R9–MB–2007–0012; 91200–1231–

9BPP] 

RIN 1018–AV35 

Migratory Bird Permits; Revisions to 

Migratory Bird Import and Export 

Regulations 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Final rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service, change the regulations 

governing migratory bird permitting. We 

amend 50 CFR part 21 to allow the 

export of lawfully-acquired, captivebred raptors without obtaining a 

migratory bird export permit; to resolve 

problems related to export of species 

covered by Convention on International 

Trade in Endangered Species of Wild 

Fauna and Flora (CITES) permits or 

certificates; to allow the importation 

and possession without an import 

permit of legally-acquired migratory 

game birds in the families Anatidae, 

Columbidae, Gruidae, Rallidae, or 

Scolopacidae that were lawfully hunted 

in a foreign country; to extend the 

maximum time for which an import and 

export permit is valid from 3 to 5 years; 

and to reorganize and reword the 

regulations to make them easier to 

understand. 

DATES: This rule is effective on 

September 12, 2008. 

FOR FURTHER INFORMATION CONTACT: Dr. 

George T. Allen, Division of Migratory 

Bird Management, U.S. Fish and 

Wildlife Service, 703–358–1825. 

SUPPLEMENTARY INFORMATION: 

Background 

The U.S. Fish and Wildlife Service is 

the Federal agency that has been 

delegated the responsibility to carry out 

the Migratory Bird Treaty Act (MBTA) 

(16 U.S.C. 703 et seq.), which 

implements conventions with Great 

Britain (for Canada), Mexico, Japan, and 

the Soviet Union (Russia). Raptors 

(birds of prey) are afforded Federal 

protection by the 1972 amendment to 

the Convention for the Protection of 

Migratory Birds and Game Animals, 

February 7, 1936, United States-Mexico, 

as amended; the Convention between 

the United States and Japan for the 

Protection of Migratory Birds in Danger 

of Extinction and Their Environment, 

September 19, 1974; and the Convention 

Between the United States of America 

and the Union of Soviet Socialist 

Republics (Russia) Concerning the 

Conservation of Migratory Birds and 

Their Environment, November 26, 1976. 

Among other things, we manage the 

import and export of migratory birds 

and their parts, eggs, and nests. The 

regulations at 50 CFR 21.21 set forth the 

requirements for import and export 

permits for migratory birds and their 

parts, eggs, and nests, including 

requirements for import and export 

permits, application procedures for 

these permits, additional permit 

conditions, and the term for which a 

permit is valid. These regulations are 18 

years old and are, in part, outdated. In 

particular, these regulations do not 

mention the requirements associated 

with CITES, addressed in part 23 of our 

regulations. In addition, many of the 

requirements currently set forth at 

§ 21.21 simply reference another part or 

section of our regulations. They are 

therefore difficult to read and 

understand. 

We proposed revisions to the 

regulations governing import and export 

of migratory birds on November 19, 

2007 (72 FR 64981). Among other 

things, we wanted to: Address the 

export of species covered by CITES; 

allow the export of lawfully-acquired, 

captive-bred raptors without an export 

permit; allow the importation and 

possession without a migratory bird 

import permit of legally-acquired 

migratory game birds in the families 

Anatidae, Columbidae, Gruidae, 

Rallidae, and Scolopacidae that were 

lawfully hunted in a foreign country; 

extend the maximum time for which a 

migratory bird import and export permit 

is valid from 3 to 5 years; and reorganize 

and reword the regulations to make 

them easier to understand. We revised 

the proposed regulations to address 

comments we received, but we made no 

major changes to the proposed rule. 

Changes in the Migratory Bird Import 

and Export Regulations 

General requirements (§ 21.21(a)): 

Current § 21.21(a) provides the general 

requirements for import and export 

permits, as well as the exceptions to 

these requirements. We reorganize 

current § 21.21 to separate the general 

requirements (§ 21.21(a)) from the 

exceptions to the requirements 

(§ 21.21(b), (c) and (d)). In § 21.21(a), we 

acknowledge all of the regulations, 

including the CITES regulations at 50 

CFR part 23, that apply to imports and 

exports of migratory birds and their 

parts, eggs, and nests. These revisions 

will help ensure that importers and 

exporters of migratory birds or their 

parts, eggs, or nests understand all the 

requirements applicable to their imports 

and exports. 

Exceptions for import permits 

(§ 21.21(b)): Current § 21.21(a)(1) 

provides the requirements for import 

permits; it does not provide any 

exceptions to import permit 

requirements for migratory birds or their 

parts, eggs, or nests. Current 

§ 21.21(a)(2) does have one import 

permit exception for raptors for falconry 

that will be discussed later in this 

document. We add, in a new § 21.21(b), 

a provision to allow the importation and 

possession without an import permit of 

migratory game birds in the families 

Anatidae, Columbidae, Gruidae, 

Rallidae, and Scolopacidae that were 

lawfully hunted in a foreign country. 

The imported specimens can be 

carcasses, skins, or mounts. They must 

be accompanied by evidence of lawful 

export from the country of origin and by 

any other necessary permits, such as a 


hsrobinson on PROD1PC76 with RULES