NFPA Journal

Special Needs
A fatal fire raises awareness of residential board and care occupancy code requirements

NFPA Journal®, January/February 2010

By Alan R. Earls

On March 21, 2009, a fire broke out at the Riverview Individual Residential Alternative, a group home for people with developmental disabilities in the Adirondack town of Wells, New York. The fire killed four of the state-run facility’s nine residents, and injured another resident and two staff members.

In a grim twist, two of those killed were originally residents of the Willowbrook State School on Staten Island, which was the subject of a landmark 1972 class action lawsuit brought by the New York Civil Liberties Union (NYCLU) on behalf of Willowbrook’s 6,000 residents. The suit, filed in response to numerous negative reports about Willowbrook, including an early investigative piece by Geraldo Rivera, sought to provide residents with safe, clean, high-quality community residential and treatment services in the least restrictive setting, along with high-quality case management and advocacy services. In a U.S. District Court ruling in 1975—and in a series of subsequent rulings extending into the 1990s—residents were gradually relocated to group homes like Riverview, residential facilities typically housing 7 to15 individuals that were supposed to be not only more homelike but also safer.

Advocates for individuals with developmental and cognitive disabilities have long favored so-called "residential board and care" facilities—buildings that are designed much like single-family homes or apartments. In some cases, conversion of single-family homes to satisfy this need has also been an option. Such housing accommodations have been preferred to some of the more traditional institutional settings. According to Robert Solomon, NFPA department manager for building and life safety codes, however, the Riverview fire raises questions about the placement into group homes of individuals lacking certain evacuation abilities.

Solomon says the Riverview fire has the making of a watershed event, with one official report already issued, two more underway, a pending grand jury report, and the NYCLU raising the possibility of legal action to force the state to better ensure the safety and care of those in group-home settings. Beyond those immediate actions, though, the fire has become a point of discussion and reexamination of life-safety requirements in documents like NFPA 101®, Life Safety Code®.

"As the code reads now, you might think residential board and care is not for people who lack the ability to self-preserve, and a lot of that is driven by Centers for Medicare and Medicaid Services (CMS) guidelines," says Paul Martin, chief of the Bureau of Fire Prevention in the New York State Fire Marshal’s office. "At the national level, I believe we need to make some decisions as to whether the definitions and scope for board and care are appropriate for developmentally disabled people who are incapable of self preservation."

A question of procedure
The Riverview fire requires a closer examination on a couple of points, says Solomon.

"Although the investigation seems to show that the building and systems were largely in compliance with relevant State of New York codes, there are questions about the procedures and actions of the facility operator prior to the fire and the response of staff during the emergency," Solomon says. For instance, only two staff members were present at the time of the fire, which may not have been sufficient, considering the number of residents with both mobility and cognitive disability problems. "It is our understanding that the staff got some of the residents outside of the building or into the mudroom where the residents were literally feet away from the outside," Solomon adds. "When [staff] left them to help other residents, some of those individuals retreated back into the building because they didn’t understand they were already in, or about to be in, a safe place."

An additional factor about this fire was the fact that Riverview was protected with a sprinkler system that, from all indications, met the requirements of NFPA 13D, Standard for the Installation of Sprinkler Systems in One- and Two-Family Dwellings and Manufactured Homes. Evidence shows that the system operated and essentially all of the sprinklers had activated during the course of the fire event. No issues with the water supply for the system were identified. "It is most unusual, to say the least, that you would have one, let alone four, fatalities in a building that was provided with a sprinkler system," Solomon says.

The information in the New York State Office of Fire Prevention and Control (OFPC) report on the Riverview fire indicates that the fire originated on an outside porch and progressed into the main portion of the structure through the attic space. Both the area of origin and the avenue of initial fire spread were areas not required to be protected with automatic sprinklers under NFPA 13D rules. Concealed spaces and other structural areas, external areas, garages, and attics account for less than one-fifth of reported fires in one- and two-family dwellings, and less than one-tenth of associated civilian fire deaths.

These small shares of fires, and especially of deaths, provided the rationale for the allowance for these omissions. However, while the risk is small, it is not zero. Of the few reported fires in sprinklered dwellings where sprinklers were deemed to have failed or been ineffective, with the reason being a lack of sprinklers in the fire area, nearly half began in concealed spaces, other structural areas, garages, and attics. Solomon says the presence of the sprinkler system is a crucial feature, but it does not provide an indefinite amount of time for the staff to take appropriate action.

In June, an internal report by the New York State Office of Mental Retardation and Developmental Disabilities (OMRDD) said that fire drill records at the facility may have been falsified, and two Riverview employees were suspended. The day before the drill issue came to light, the state’s OFPC released a report questioning the actions of OMRDD staffers the night of the fire. It also suggested that residents might have had more time to evacuate if the building had been protected by a different type of sprinkler system or if the structure had been built using different construction materials. The building was less than a year old when the fire occurred.

Special needs
Jan Blacher, a professor of education at the University of California, Riverside, and an expert on people with developmental disabilities, says there may simply be a disconnect between fire- and life-safety codes and the needs of those with developmental disabilities. "Unfortunately, few people, whether they’re firefighters, police, or medical people, have been trained in the basic differences between these populations and the rest of us," she says.

For example, Blacher says, safety codes may mean nothing to residents of a group home, and in an emergency the facility’s staff needs the skills and resources to effectively convey the right information so that residents can understand and cooperate effectively. In other cases, more staff may be necessary to carry out an evacuation, depending on the level of evacuation assistance needed.

Blacher says the growing autistic population could prove even more challenging to work with than those with cognitive disabilities. "Soon one person in one hundred will be autistic—in California alone, the autistic population in state care will triple by 2018," she says. "It is important to plan." As a consequence, Blacher advocates making certain that codes consider the needs of these populations and recommends that more training be provided, especially for emergency personnel and on-duty staff, on how to communicate and work with these people.

The Life Safety Code focuses on the "personal care" needs of the resident when setting the requirements for residential board and care occupancies. Personal care runs the gamut of managing the resident’s functioning and whereabouts, making and reminding a resident of appointments, being ready and able to intervene if a resident experiences a crisis, supervising nutrition and medication, and providing transient medical care.

It is unclear whether the need to directly supervise evacuation of a resident exceeds the scope of personal care needs. "So while personal care services can range from simply reminding people to take their medications to a more intensive personal care action for people with mobility or cognitive impairments, those two staff assistance requirements require two very different skill sets and proficiencies," Solomon says. Those differences also intensify the need for different staffing criteria for evacuation scenarios if a resident will require continuous staff assistance during a fire.

Solomon points out that the code only requires staff to be on duty when residents requiring evacuation assistance are present, wording that is open to interpretation. "The Riverview fire seems to indicate that providers need to go back and determine the appropriate staffing levels more specifically," he says. It also begs the question of who is currently setting the staffing levels and how those determinations are made, says Solomon. In the case of Riverview, it was the OMRDD that made those decisions. "We need to look closely at that process to see not only how many staff people should be present in a facility, but whether, individually, they are properly qualified to handle these kinds of evacuations," says Solomon.

Cindy Mahan, CEO of Friendship Community Care Incorporated in Russellville, Arkansas, an agency she started 35 years ago that now cares for some 800 disabled people, believes the Life Safety Code does exactly what it is supposed to do. "I think the issue is at the local level where there needs to be education and training as well as better oversight and enforcement," she says. Mahan says the code is "clear on what needs to be done—it’s up to agencies such as mine to go back in and check on the people who work at the facilities." In other words, states have to enforce the code, and the agencies themselves have the responsibility to keep up-to-date on any changes happening in the group homes.

Moreover, Mahan says, the agencies and regulators should ensure that drills are conducted at all hours of the day and night to make sure that staff and residents are proficient in evacuation procedures. "The Riverview fire will certainly make me focus more on going beyond just meeting the regulations and making sure that our safety practices are totally functional," she says.

There’s a similar emphasis on getting good results via follow-through at the Veterans Health Administration (VHA). VHA is the component of the Department of Veterans Affairs (VA) that oversees the provisions for medical care at the VA. David P. Klein, senior fire protection engineer for the VHA, bases his perspective on the agency’s relationships with hundreds of privately run group homes that care for veterans under a program called Community Residential Care. To certify those facilities, the VHA has a complex inspection procedure. "In terms of health and safety, a facility must first meet all state and local licensure requirements and regulations for construction, fire, maintenance, and sanitation," says Klein. Facilities must also adhere to the Life Safety Code criteria for Residential Board and Care Occupancies as required by federal regulations.

Klein says the system has worked well. "Each of our regional medical centers has a safety office with knowledgeable professionals who go on-site and conduct inspections, sometimes including impromptu, unscheduled evacuation drills," he explains. "Each facility is supposed to have emergency plans for egress and relocation, and it is ultimately up to the inspectors to satisfy themselves that these activities are being properly conducted. They’re professionals and they take that responsibility seriously."

Alan R. Earls writes on technical and safety topics and is based in Franklin, Massachusetts.

SIDEBAR
How much staff is enough?

Staff responsibilities and priorities at residential board and care homes vary widely, but in all cases they center on the well-being of the residents. While any numbers of daily activities—many of which are routine—are overseen or supervised by the staff, ensuring the safety of the residents during a fire event cannot be overstated enough. While state or federal government reimbursement opportunities might be factored into the minimum staffing levels, facility owners and operators need to be realistic about the ability of the overnight staff to properly handle an evacuation.

Staffing levels are also a consideration of NFPA 101A, Guide on Alternative Approaches to Life Safety. Chapter 6 of this guide provides a set of tools and measures to help determine the evacuation capabilities of the population of a board and care occupancy. The extent to which a resident needs assistance from one or more staff members during a fire is a consideration of NFPA 101A. A facility that has one resident—such as one confined to a wheelchair—who requires full evacuation assistance from one staff member, and that has a total of two staff members present, can get in trouble quickly if other residents require limited assistance from the other staff member.

— Alan Earls

SIDEBAR
Riverview and its aftermath

In its report on the Riverview fire, the New York State Office of Fire Prevention and Control (OFPC) did not identify, based upon site inspection and a review of available materials, any major code violations in the design or construction of the facility. However, OFPC did identify a number of issues that were "behavioral in nature, relating to required documentation or operations rather than the features of the ‘as built’ structure."

Among those items were code violations, including:

• Final acceptance records for the fire alarm system did not meet the requirements of §901.2.1 of the Fire Code of New York State.
• By contract, the alarm monitoring company was required to first attempt contact with the facility of alarm origin rather than immediately reporting the fire to the fire department, a violation of §401.3 of the Fire Code of New York State.
• An inaccurate device count and the failure of the inspector to fully document the testing of all components of the fire alarm/detection system created a violation of §901.6.1 of the Fire Code of New York State.
• Obstructions or impediments in a path of travel that may hinder or interfere with its use during an emergency created a violation of §701 of the Property Maintenance Code of New York State.

"Further research at a national level needs to be conducted to evaluate and quantify the egress capabilities of persons that have mental, developmental, or physical disabilities or combinations thereof," the report added.

"This research also should include the capacity of staff to evacuate those who cannot self-preserve." The report also made the observation that Riverview was classified as a one- or two-family residence. As a consequence, the report’s authors said, "many of the fire-safety operational provisions of the Fire Code of New York State afforded to other residential and institutional occupancies were not applicable."

That observation is similar to the conclusions in "Group Homes: Local Control and Regulation Versus Federal and State Fair Housing Laws," an article written for the Washington State Bar Association Land Use Conference in 1997 by Ted Gathe, an attorney for the City of Vancouver in Washington State.

In the article, Gathe points out that under the anti-discrimination language of federal and state fair housing laws—which haven’t changed much since he wrote the piece, he says—local efforts to ensure the safety of group homes can run into legal obstacles. He notes that "even seemingly valid public-safety concerns have been viewed [by the courts] as overly paternalistic in nature... Advocates for the handicapped argue that health and safety concerns of local government simply perpetuate public misconceptions about the handicapped." In Gathe’s view, the need to appear unbiased could hamper local code enforcement and safety officials in efforts to improve group-home safety.

"Legally, there usually has to be a very compelling reason for making any regulatory differentiation on health and safety matters between a group home and a traditional family home," Gathe says. As a consequence, Vancouver does not distinguish between group homes and homes occupied by traditional families, although Washington State has imposed special requirements for group homes, such as barrier-free accessibility.

Although Gathe says he would like to see a more rational set of laws and regulations in place, he is not optimistic about change. "The interest groups that advocate for the disabled are extremely strong and see any change as a potential means by which housing could be restricted," he says. "Change would take concerted effort at the state and federal levels."

In July of 2009, OMRDD appointed a Fire Safety Panel of Experts to study the Riverview IRA fire and determine what recommendations might be in order for the state with regard to the classification, construction, use, and placement criteria for the potential residents of these group homes. The report of the panel is expected to be released in early 2010.

— Alan Earls