No Hoping for the Best in Kansas Case
The case began when a state inspector conducted a fire safety inspection and reported that the plaintiff’s fire alarm monitoring company was unable to reach the municipal fire department dispatch center for more than five minutes due to busy signals. As a consequence, the plaintiff was assessed a civil penalty of $2,000. An administrative law judge (ALJ) concluded that the skilled nursing facility had to do more than merely hook up its fire alarm system and hope for the best. As a Medicare participant, among other things, the nursing facility “must be designed, constructed, equipped and maintained to protect the health and safety of residents, personnel and the public,” according to the code 42 C.F.R. §483.70. With regard to fire safety, the code stated, “The facility must meet the applicable provisions of the 2000 edition of the Life Safety Code of the National Fire Protection Association” (NFPA). §9.6.4 of the Life Safety Code incorporates NFPA 72 regarding alarm systems used “to alert the municipal fire department . . . of fire or other emergency.” For facilities like the plaintiff that had chosen a central station alarm system, §5-18.104.22.168 of NFPA 72 provided that the central station must “immediately retransmit the alarm to the public fire service communications center.”
The state inspector concluded that because the alarm monitoring company was unable to reach the fire department dispatch center for more than five minutes due to the busy signal, the residents were subjected to unnecessary risk and therefore the plaintiff was not in substantial compliance with the code. Because the nursing facility’s residents were in immediate jeopardy, the inspector imposed a $2,000 civil penalty.
In the hearing before the administrative law judge, the judge held that the code could not be enforced as a regulation against the plaintiff. However, he concluded it was evidence of an industry standard in the area of fire alarms and therefore the plaintiff violated §42 C.F.R Section 483.70 because the fire alarm was not delivered to the fire department without unreasonable delay.
The plaintiff appealed to the U.S. Court of Appeals for the Tenth Circuit. The plaintiff argued that under the code, the system and responsibility for fire department notification each terminate with successful enunciation of its fire alarm to an approved central station. The appellate court did not agree and referred to the decision of the board that had concluded, “It [the nursing facility] must take reasonable steps to insure that its alarm system and associated protocols operate to achieve their intended protective purpose in the circumstances for which they were designed.”
The record indicated that the plaintiff provided telephone numbers for its alarm monitoring company to contact. The first number was to the city’s emergency dispatch center (which plaintiff never investigated to determine whether it had a dedicated emergency telephone line); the second number was the plaintiff’s former administrator, who the alarm company learned was deceased; and the third number was that of the current administrator who did not answer. The court held that given that there must be a station at the facility that is always staffed, so this number should have been supplied to the alarm company instead.
In dealing with plaintiff’s argument that the National Fire Alarm Code did not have the force and effect of a regulation, so the delay could not serve as a basis for a violation, the court stated that even if the Code did not have the force and effect of a regulation, the ALJ recognized that it could be relevant for other purposes such as evidencing industry standards. The court agreed that the delay was not reasonable, and therefore affirmed the ALJ’s decision.