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Author(s): Robert Solomon. Published on January 2, 2019.

In Compliance | NFPA 101

Open-kitchen equivalency in health care facilities


Our technical staff recently received a question as part of our technical questions service (TQS) that is provided to our members and authorities having jurisdiction (AHJs). The question involved the open-kitchen provision allowed in health care occupancies that was introduced in the 2012 edition of NFPA 101®, Life Safety Code.® NFPA staff provided a clear, concise response and reiterated not only the requirement but also the basis behind it. A follow-up question from the code user took issue with our response, saying that their particular situation (contrary to the NFPA staff response) had been accepted by the Centers for Medicare & Medicaid Services (CMS). After several more follow-ups with the stakeholder, a final response was provided that explained the role of NFPA and the AHJ.

In this particular case, CMS is the AHJ, and it is ultimately the prerogative of CMS to apply and interpret the code as they see fit. In fact, regardless of who the AHJ is, NFPA 101 delineates that responsibility to them. As the code states in Section 1.6: Enforcement, “This Code shall be administered and enforced by the authority having jurisdiction designated by the governing authority.”

NFPA 101, sub-section 4.6.1, lays out those duties and responsibilities and reinforces that obligation. It states in part that “the authority having jurisdiction shall determine whether the provisions of this Code are met.” While the TQS offered by NFPA can assist AHJs, designers, installers, and others who rely on the code contents to apply and understand the requirements, we have no regulatory authority to make final decisions, override judgments of others, or offer opinions that are contrary to what our codes and standards require.

In the case discussed here, it appeared as though some level of equivalency was being applied by CMS to the open-kitchen provision in the Life Safety Code. NFPA 101, Section 1.4, also addresses that exact scenario and permits the AHJ to evaluate and determine if an equivalent level of protection is being provided by some means other than what the code requires. CMS often might evaluate such equivalencies under a waiver or categorical waiver process. For larger and more complex building-related issues, AHJs may refer to NFPA 101A, Alternative Approaches to Life Safety. The equivalency provisions of NFPA 101 allow for “use of systems, methods, or devices of equivalent or superior quality, strength, fire resistance, effectiveness, durability, and safety,” among other considerations.

Although some level of agreement was reached between CMS and the other involved party to do something different than what NFPA 101 requires, the CMS letter does not alter or influence the requirements of the NFPA code. The requirement of our code does not change.

The idea of different AHJs applying NFPA 101 in slightly different ways isn’t a new or novel concept. In fact, when agencies such as CMS or health care certification bodies such as The Joint Commission (TJC) adopt or reference NFPA codes and standards, they may often supplement the requirements with their own unique provisions or, in extremely rare cases, remove certain requirements. That is an understandable part of the code adoption process and one that NFPA takes great care to monitor. Over the years, we have made efforts to be aware of and identify those differences by working closely with the myriad health care groups that are within our sphere of influence.

In order to raise awareness of the overlap and similarities between key NFPA documents applicable to health care, and to provide an asset for designers, hospitals, long-term care administrators, and the numerous AHJs who oversee the enforcement part of this environment, we have developed several resources to help.

The first is the NFPA® Interactive CMS 2786R, Fire Safety Survey Report. This PDF resource, available online, provides access to the 2012 editions of NFPA 101 and NFPA 99, Health Care Facilities Code, that are currently being enforced by CMS. It also includes the fire safety survey report forms (K-Tags) utilized by CMS that allow users to immediately link to the appropriate or similar provision from the NFPA codes. This allows the stakeholder to quickly see what is the same or different between the CMS adopted criteria when compared to the NFPA code requirements. The K-Tag forms are provided in a fillable PDF format that allows the reports to be completed on the spot during a survey or inspection.

Another recently released resource is the second edition of The Joint Commission/NFPA® Life Safety Book for Health Care Organizations, also available at As an accrediting organization, TJC also serves in the role of an AHJ and, like CMS, they develop some of their own policies, provisions, and requirements that are intended to work with the NFPA criteria. This publication includes the relevant TJC standards and related NFPA code content used in the 2012 edition of NFPA 101, supplemented with author commentary explaining background, examples, and methods to apply the provisions.

In both of these resource documents, you may find requirements that are slightly different from what NFPA codes require—and that’s okay. In their roles as AHJs adopting or referencing requirements of NFPA 101, CMS and TJC have the ability to amend or modify certain provisions. Likewise, any AHJ has the ability to consider equivalencies under the provisions explicitly laid out in NFPA 101.

While NFPA staff is here to assist in understanding our requirements, the TQS process has no power to police or enforce compliance with NFPA codes or review an AHJ’s determination with regard to equivalency or other modifications to the fundamental requirements contained in the code.

ROBERT SOLOMON is the director of building and life safety at NFPA. Top Photograph: Action Pact