December Fire in Upper Peninsula Raises Concerns

A fire just after 12 a.m. on December 12, 2005 claimed the lives of two residents at Mather Nursing Center in Ishpeming. No one knows whether a room was already burning when a resident placed a garbled call to 911 at 12:10 a.m., according to Sally Bruce, the long term care ombudsman for the Upper Peninsula. But when the Marquette County emergency dispatcher called the facility two minutes later, the staff member who answered dismissed the 911 caller as a “very confused” resident who had been upset because another resident had been “screaming and hollering earlier.” “Everything’s fine,” she said. At 12:14 a.m. Mather staff called 911 back to report a fire in a resident’s room. Sixty residents were rushed to the hospital and dozens of others experienced the stress of an emergency evacuation from the facility into the freezing temperatures of a winter night in the Upper Peninsula.

Inspectors from the Department of Labor and Economic Growth’s Bureau of Construction Codes and Fire Safety found 13 safety violations after the fire, including failure to close a door in the room where the fire started. The violations have been corrected and the facility was reopened in January.

Citizens for Better Care believes that residents, staff, visitors and public safety personnel deserve the highest level of protection from the risks presented by fire. In this newsletter we are pleased to be able to give an overview of fire safety in Michigan nursing homes.

Michigan Facilities Remain the Nation’s Least Protected

Fires in nursing homes are common occurrences, with roughly 2300 nursing home fires reported each year in the US. Most are small and easily extinguishable, but the amount of inflammable material in residents’ rooms can quickly produce lethal amounts of smoke when a fire gets out of control. Most facilities do not maintain the levels of staffing needed to quickly evacuate all residents in case of a fire, so the effective available emergency strategies are restricted to “protect in place” measures.

Protect in place can be the best strategy when hard-wired smoke detectors directly alert a local fire department of the outbreak of a fire and when an automatic sprinkler system is simultaneously triggered to extinguish a fire before it spreads or generates smoke. Protect in place strategies leave residents of nursing homes without sprinkler systems at particularly great risk because there is so little assurance that a fire will be extinguished before it presents danger to human life.

At least 500 people have lost their lives in nursing home fires since fire safety standards were first set thirty years ago, according to research done by USA Today. And even though more than two people have never died in a fire in a nursing home fully equipped with sprinklers, Michigan ranks last in the nation in the percentage of facilities with sprinkler systems. Just 36% of Michigan’s nursing homes have sprinkler systems.

Under the most recent law passed by Michigan, smoke detectors were required in residents’ rooms only if the resident had brought his or her own furniture from home. We are pleased that last year the U.S. Centers for Medicare and Medicaid Services (CMS) did issue an interim final rule that requires nursing homes to install smoke detectors in resident rooms and public areas if they do not have a sprinkler system installed throughout the facility or a hard-wired smoke detection system in those areas. The National Fire Protection Association and other fire safety officials, however, urge that battery-powered smoke detectors are not an alternative to sprinklers and hard-wired smoke detection systems.

One Advocate’s Experience:

You Can’t Possibly Mean I Have to Buy a Copy of this Law for $159.75 if I Want to Read It?

The existence of nursing home fire safety as an issue had never even crossed my mind before the fall of 2004. In fact, I confess that I first volunteered to research, summarize and informally present the fire safety laws applicable to Michigan nursing homes in part because it sounded so easy.

I quickly found the Michigan laws online and was increasingly surprised as I read through each to find that not one contained such straightforward specifics as whether or not nursing homes are required to have smoke detectors or sprinkler systems. Rather, I learned, the Michigan legislature enacts nursing home fire safety laws mainly by adopting the federal Life Safety Code, with some modifications and exceptions. Michigan laws are basically shells that state which version of the Life Safety Code applies to homes constructed in which years and whether Michigan has created any exceptions or modifications. It seemed tremendously efficient to me at first. I would only have to thoroughly scrutinize one set of regulations, the Life Safety Code.

The Life Safety Code is, however, produced and sold by the National Fire Protection Association. I could not believe that a law that governs me and places where I spend much of my working time must be purchased. As a dedicated advocate without much shame, I tried everything I could think of to get around the rule. When I couldn’t get around the rule, I raised a fuss. In vain. Free access is fiercely guarded against and there is no FOIA inroad. The current NFPA 101: Life Safety Code and Handbook Set, 2006 Edition, is listed on the NFPA website for $159.75 and it in turn incorporates by reference numerous other volumes, all of which must be purchased for similar prices.

Although Michigan law states that the Life Safety Code may be accessed at certain public locations, it is not available in public libraries, online, or in county or city public offices. I was never able to contact any public office in Lansing that was able or willing to give me access to the Life Safety Code.

I finally was able to purchase Fire Safety Requirements for Michigan Nursing Homes and Homes for the Aged-State and Federal, a compilation that includes sections of the Life Safety Codes, from the Health Care Association of Michigan for $80.00. I am grateful that HCAM makes the publication available to non-members, but is it as unbelievable to you as it is to me that we have to pay to see our own laws?

Retrofitting for Sprinklers May Be Cost Prohibitive

All versions of the Life Safety Code address appropriate facility design and construction and cover numerous categories ranging from building materials to room design. Specific topics in every version include development and testing of emergency plans, installation of alarms and smoke detectors, protection of hazardous areas, regulation of smoking and many, many others. Some of the language is quite technical, but a general reader could understand much of what the code requires.

The Center for Medicare and Medicaid Services (CMS) provides national direction in nursing home fire safety by adopting new versions of the Life Safety Code as they are produced and made available by the NFPA. Michigan’s state legislature must then opt to comply with the newest standards or to allow nursing homes built earlier to continue to comply with earlier versions of the code. For example, a nursing home that began in compliance with the 1967 edition of the standards could continue to be surveyed under those standards today.

Retrofitting for sprinkler systems and other requirements of newer versions of the Life Safety Code would only be required for new construction or if extensive repairs or a renovation of the facility were undertaken.

This system may actually be a disincentive to progress. A facility may be prepared to renovate an unsafe roof, but might defer the necessary maintenance because its budget will not stretch to cover the additional cost of retrofitting sprinklers required under the newer version of the Life Safety Code it will be required to follow.

As of March 2003, however, CMS required all nursing homes participating in Medicare and Medicaid to comply with the 2000 standards for existing facilities with CMS changes such as strengthened emergency lighting requirements. Michigan has yet to adopt the latest version of the Life Safety Code with requires the retrofitting of sprinkler systems by all nursing homes.

If Michigan adopts the 2003 Life Safety Code or a later version, all nursing homes will be required to install sprinkler systems.

Could Mather Have Been a Home with an Exceptional History of Fire Safety Violations?

The only way we as advocates or interested citizens can find out is to drive to Ishpeming and hope to be permitted to see the copy of the Life Safety Code survey on file at the facility. For over a year we have been refused access to Life Safety Code surveys collected by the Michigan Bureau of Construction Codes and Fire Safety (BCCFS).Results are disclosed only to the surveyed facility, BCCFS and the Health Care Association of Michigan. I would like to compile a report on the current state of fire safety compliance in Michigan, but the ONLY way to access the reports is to complete a Freedom of Information Act request and to pay 25 cents per page for the documents. To survey progress as well as compliance, I would need two years of surveys at a cost of well over $5000. Not only is the Life Safety Code itself not practically available to the public, Life Safety Code survey results are also not practically available to the public.

We have sent a request that the Michigan Bureau of Construction Codes and Fire Safety within Department of Labor and Economic Growth release the surveys to the office of the State Long Term Care Ombudsman, which already receives the Bureau of Health Services general surveys.Citizens for Better Care hopes that the results of these surveys will soon be available for our review and for public review. We know from a 2004 GAO report at 92 percent of Michigan nursing homes were cited for fire violations in their last survey. We hope to look at each of the surveys and compile a report on the most common fire safety violations and the effectiveness of the survey and enforcement process in promoting safer conditions.

Progress in Other States

More than a dozen states have already passed their own laws requiring sprinklers in all nursing homes and a few have nearly implemented these laws, but most are waiting for a federal mandate with the hope of federal funding. As of last fall, only Alaska had achieved full implementation of sprinkler systems in all of its nursing homes.

Both Tennessee and Connecticut have passed sprinkler requirement laws in response to public concern after 31 residents in those states died in nursing home fires in 2003. Tennessee advocates, industry members and fire safety officials worked together to achieve the goal of legislation to require full installation of sprinkler systems. One Nashville resident who died was the mother of a fire chief who had trusted the existing fire safety system. Indiana advocates have effectively used media attention to raise public awareness to a level that has brought the nursing home industry, fire safety officials, state legislators and residents together to discuss specific strategies to help nursing homes meet the costs of a sprinkler system requirement.

New Federal Law Raises Hopes

Four days before the fire in Ishpeming, H.R. 4491, the Nursing Home Fire Safety Act of 2005, was introduced in the U.S. House of Representatives, asking CMS to adopt the 2006 version of the Life Safety Code that requires ALL existing nursing homes to be equipped with automatic fire sprinklers. The bill cites GAO findings that the 31 lives lost in nursing home fires in Hartford and Nashville in 2003 could have been reduced or limited if the homes had been equipped with automatic sprinkler systems. It formally recognizes that federal oversight of nursing home compliance with fire safety standards is inadequate and that many nursing facilities lack the financial capital to install sprinklers on their own and must consider closure as an alternative to taking on the financial burden of sprinkler installation.

If passed, the bill will require that within five years every nursing facility in America should be equipped with automatic fire sprinkler systems, that the Centers for Medicare and Medicaid Services (CMS) should adopt the 2006 edition of the Life Safety Code which requires all existing homes to be fully sprinklered, and that CMS together with Congress would “commit to providing facilities with the critical financial resources necessary to ensure the speedy and full installation of life saving sprinkler systems.”

If passed, the bill will also allocate $450 million to low-interest loans and $10 million for ‘hardship grants’ to help pay for sprinkler systems for older nursing homes. H.R. 4491 was immediately referred to the Committee on Energy and Commerce’s Subcommittee on Health where it awaits scheduling for hearings. Members of the Subcommittee on Health include Mike Rogers and Fred Upton of Michigan. John Dingell is an ex officio member of the Committee. We will give updates on the CBC website and in our newsletters as H.R. 4491 moves through subcommittee hearings.