CMS 1135 Waiver – Suspending Tests, Inspections, and Drills

During this period of COVID-19 crisis, many readers have written asking if they can discontinue conducting routine Life Safety tests and inspections in order to limit service technicians from entering the building and to suspend fire drills to allow staff to focus on patient care and the pandemic emergency. The response from this website has been consistent and focused on the CMS Condition of Participation (Condition for Coverage for Ambulatory Surgical Centers) that regulates nearly all of the non-government healthcare facilities: Until such time CMS (or your accreditation organization) makes an announcement regarding changes in required tests, inspections, and drills, the answer is no, you may not. You still have to conduct all of the required tests, inspections, and drills that are required in the Life Safety Code.

But there is a glimmer of hope on this subject. When CMS issued its Final Rule on Emergency Preparedness on September 16, 2016, they explained that there is available for healthcare providers an 1135 waiver process that allows the healthcare organization to not have to meet certain CMS standards during a declared emergency. What is unclear, if the 1135 waiver process applies to the testing, inspecting and fire drill requirements.

Accreditation organizations, member organizations, and this website have written CMS asking them if the 1135 waiver process would apply to the required testing, inspection and fire drills found in the Life Safety Code. So far, CMS has not replied to any of those who have inquired.

But the American Society for Health Care Engineering (ASHE) issued a communication to its members on Friday, April 3, 2020, providing instructions on using a template for a letter that you can send to the appropriate CMS Regional Office asking for specific 1135 Waiver exemptions on testing, inspections, and fire drill requirements. While this 1135 Waiver letter can only help the situation, it is important to understand that as of today, CMS has not indicated that suspension of testing, inspection, and fire drills is permitted under the 1135 Waiver request.

With the approval from ASHE, we are providing a couple of link connections to their webpage that explains the 1135 Waiver process and the template letter:

http://www.ashe.org/covid19resourcescovid19resources

https://www.ashe.org/COVID19resources?utm_source=General%20Announcements&utm_medium=email&utm_campaign=COVID%2D19%20Resource%20Roundup

We repeat ASHE’s introductory paragraph for this 1135 Waiver in case you missed this important information:

Health care facilities can access a templated letter and table to request a waiver under Section 1135 of the Social Security Act. The waiver will allow facilities to delay inspection, testing, maintenance and certain drills required by the Centers for Medicare & Medicaid Services. The letter must be modified to include the health care organization’s information. The table, which should be submitted with the letter, gives guidance on how requirements should be modified during the COVID-19 emergency. Waivers help to limit non-essential persons from entering health facilities and risking exposure, while also allowing health care staff to focus on patients.

Aerosol Can Storage

Q: Housekeeping products like germicidal, glass cleaner, air freshener are stored in a locked metal box on housekeeping cart. All of our stock of these and other products are stored in two large locked metal lockers. They are not fire rated cabinets. The surveyor said aerosols all have to be stored in fire rated cabinets. While they are in use while on housekeeping carts, they will have to be checked in and out daily from a fire cabinet.

The surveyor did not cite a tag or code for this he just told us we had to do it. I have searched and so much is left to interpretation I am confused on what to do. With all the changes occurring and more to come with state regulations and inspections I would like to be prepared.

A: It is safe to say that there is no NFPA standard, no CMS standard, and no accreditation standard that specifically says aerosol cans must be stored in a fire rated cabinet. However, if access to these aerosol products by unauthorized individuals is a safety risk (i.e. can children get into them) then it may be perceived as an unsafe environment and the surveyor would have a legitimate concern about them.

I suggest you go back to the surveyor and ask them why they believe the aerosol products have to be stored in a fire-rated cabinet. Ask for a specific code, standard, or regulation that they are using to make this recommendation.

Otherwise… it’s not a code violation, but a surveyor’s preference.

ILSM in Business Occupancies

Q: Is there a code requirement for implementing an Interim Life Safety Measure (ILSM) for occupancies other than healthcare (i.e. business occupancies) if a life safety code deficiency has been identified?

A: Yes… ILSM (also known as Alternative Life Safety Measures) is found in chapter 4 of the 2012 Life Safety Code, specifically section 4.6.10.1 of the 2012 LSC. This describes the need to implement ALSMs when features of Life Safety are impaired. This chapter is part of the ‘core’ chapters and applies to all occupancy chapters, so that means it applies to business occupancies as well.

Most accreditation organizations should be enforcing this in offsite locations, such as business occupancies. Some surveyors fail to ask for this, but it is an enforceable requirement.

Access To Electrical Rooms

Q: Please clarify if electrical closets and /or electrical rooms can be accessible to anyone. The NFPA70 National Electrical Code seems to require warning signs limiting access to authorized personnel only.

A: For many years there has not been any specific standard that says access to electrical control panels has to be restricted to authorized individuals only. But with the new NFPA 99-2012, section 6.3.2.2.1.3 now says access to over-current protective devices (i.e. circuit breakers) serving Category 1 or Category 2 rooms is restricted to authorized individuals only. This standard actually only applies to new construction.

But be aware that for many years accreditation organization have cited healthcare facilities for not securing their circuit breaker panels from unauthorized access, and they base this on their “Safe Environment” standard, or as some people call it the ‘General Duty’ clause.

So, it has been enforced for years by accreditation organizations, and by some state agencies, while there has not been an actual standard that required securing the panels. So, I would suggest you do secure all electrical rooms from unauthorized access.

Triennial Surveys by Accreditation Organizations

Q: I heard a rumor that the accreditation organizations (AO) are going to 18 month visits vs. the 3 years it has been. Is there truth to this?

A: No… None of the AOs are going to an 18-month cycle for survey. They all will be staying at the 36-month cycle, which is allocated by CMS. They would have to double the number of surveyors which would be an added cost to the healthcare facilities that are accredited by them.

There is one accreditation organization (DNV-GL) that does visit their client hospital every year, but they still only survey on behalf of CMS every 3 years. The other two annual visits that DNV performs is a requirement of their ISO process, and they use those visits as educational visits. DNV’s process is very well received and annual visits are appreciated by their client hospitals.

Suites in AHCO

Q: We recently had a surveyor tell us that suites are not allowed in ambulatory healthcare occupancies. Can you help explain this and any code references that support your opinion?

A: Well… that surveyor is mistaken. Suites are definitely permitted in ambulatory health care occupancies (AHCO). Sections 20/21.2.4.3 of the 2012 LSC specifically permit suites and says any site larger than 2500 square feet must have at least two exit access doors remotely located from each other.

The term ‘remotely located’ is defined by section 7.5.1.3.2 which says the two exits must be located at a distance from one another not less than one-half the length of the maximum overall diagonal dimension of the suite, measured in a straight line between the nearest edges of the exits. In a fully sprinklered building, section 7.5.1.3.3 says it is 1/3 the length of the maximum overall diagonal dimension of the suite.

There are no size limitations on suites in AHCO. And they are not prohibited in business occupancies either, even though there is no advantage to having them in business occupancies. I suggest you ask the surveyor (if he/she is still with you) to show you where in the LSC it prohibits suites in AHCO. I also suggest you ask your state and local authorities if they have any restrictions that would prohibit suites in AHCO.

Smoke Door Testing?

Q: The Joint Commission standard for annual door testing states “The hospital has written documentation of annual inspection and testing of door assemblies by individuals who can demonstrate knowledge and understanding of the operating components of the door being tested”. The Joint Commission also references NFPA 105 (smoke doors). Would this include all smoke barrier doors?

A: It appears you have an older copy of the Joint Commission standards. In January, 2019, the standard in which you refer has been changed to specifically identify the need to inspect and test fire door assemblies. Their note to this standard says nonrated doors including smoke barrier doors are not subject to the annual inspection and testing requirements of either NFPA 80 or NFPA 105.

It is the position of CMS and all accreditation organizations that non-rated doors in smoke barriers (barriers that separate smoke compartments) do not have to be inspected on an annual basis.

Here is why: Even though section 7.2.1.15.2 of the 2012 LSC says (in part) smoke door assemblies need to be tested, that conflicts with the occupancy chapter for healthcare. Section 4.4.2.3 says when specific requirements in the occupancy chapters differ from the general requirements contained in the core chapters, the occupancy chapter shall govern. Section 19.3.7.8 says doors in smoke barriers shall comply with section 8.5.4. Section 8.5.4.2 says where required by chapters 11 -43 doors in smoke barriers that are required to be smoke leakaged-rated, must comply with section 8.2.2.4 (which requires testing).

Chapters 18 & 19 (healthcare occupancies) do not require smoke doors to be smoke leakaged-rated: Therefore, smoke barrier doors do not have to be tested in healthcare occupancies. Now… you may have an AHJ that believes differently. You may show them this code trail and perhaps they will allow you to not test your smoke doors, but ultimately they are an authority and if they say you have to test smoke doors, then you have to test smoke doors. But it is not required in healthcare occupancies according to the 2012 LSC.

NFPA 99 Risk Assessment

Q: A question came up concerning the NFPA 99 (2012) Risk Assessment. Does this only pertain to new construction or does it pertain to existing buildings also? Our company has never had an assessment done in the past but it is my understanding that it became a requirement in 2016. The CMS has established compliance requirements (K Tag) for risk assessment and its completion. Who would be the qualified personnel to perform this procedure and create a formal and documented risk assessment?

A: According to members of the Technical Committee who wrote the new Chapter 4 in NFPA 99-2012, the original intent was the risk assessment only applies to new construction. However, the way chapter 4 is written, it is not clear that the risk assessment is only applicable to new construction.

CMS has instructed the accreditation organizations and the state agencies who survey on the behalf of CMS to require all hospitals to have completed their NFPA 99 risk assessment for new as well as existing construction. Therefore, hospitals must conduct the risk assessment for new and existing conditions. These assessments are not difficult to do and only takes a few minutes.

There is no requirement to make a room-by-room assessment, but the intent is to assess the risk of the entire system if it were to fail and there were no back-up systems. It would stand to reason that most hospital systems would be Category 1 or Category 2. Anyone may conduct the assessment, but would have to have knowledge of the risk assessment process and knowledge of the facility.

Blanket Warmers

Q: Is there a code for blanket warmers, towel warmers and such equipment that is used in a medical setting? Since they have a heating element would it be the same as having a space heater?

A: No… Portable space heaters are regulated by section 19.7.8 of the 2012 LSC. Blanket warmers are not regulated by the LSC.

However, blanket warmers are unofficially regulated by the accreditation organization and by CMS. While there are not specific standards that address blanket warmers, surveyors will expect the hospital to regulate their blanket warmers via their own policies. The hospital is expected to have a policy that sets the maximum temperature that the blankets may be. Usually, the maximum temp is set at 130 degrees F. Anything over that will likely be scrutinized by a surveyor.

Blanket warmers are considered medical equipment and must be included in the medical equipment inventory, and they must be maintained in accordance with the manufacturer’s recommendations.

Clinical Needs Locks

Q: For clinical needs locks, can occupants pass through four locked doors (patient room door, a cross-corridor door, another cross-corridor door, and a door at exit discharge) in a required single path of egress? (All options have 4 locked doors in the path.)

A: The 2012 Life Safety Code does not address any restrictions on how many doors in the path of egress may be equipped with Clinical Needs locks. Therefore, if the LSC does not prohibit it, then it is permitted.

However, not all AHJs permit it. For example; I am told that the IBC prohibits more than one Clinical Need lock in the path of egress (or, at least they used to). When I worked at the hospital, I tried to get the state to allow two locked doors in the path of egress from the Psychiatric unit but they would not allow it.

But in my travels, I have seen multiple doors in the path of egress equipped with Clinical Needs locks where permitted in various states around the country. The most common use of multiple Clinical Needs locks create a ‘Sally Port’ or ‘airlock’ that allows one locked door to open but the other locked door must be closed. This is an added security to prevent anyone from eloping.

So, the LSC does not prohibit it, but the IBC and some AHJs do.