Testimony: HB 2444 and Concerns Regarding the Fire Marshal Options

[Erin]

The following is testimony given by Matt Fletcher on February 2, 2010 to the House Federal & State Affairs Committee in support of House Bill 2444 which proposes to move the State Fire Marshal's Office within the structure of the Department of Insurance:



Chairman Neufeld and members of the Committee, thank you for the opportunity to discuss HB 2444, and concerns that members of InterHab have expressed regarding the State Fire Marshal’s office and interpretation of fire safety codes for community residential settings for Kansans with developmental disabilities.

As you may be aware, InterHab is an association of community developmental disability service providers, many of whom operate residential settings across the state. They have lifetimes of experience in how to successfully build quality housing, as well as adapt available community housing, in order to provide quality residential settings for Kansans with developmental disabilities.

They have been so proficient, and successful, at setting up these types of community residential opportunities, that community housing sites for Kansans with developmental disabilities are literally everywhere, and every member of this committee has these types of residential settings in their district.

Our members face many challenges in obtaining and providing quality residential options for the persons they support. Often, the most perplexing and potentially costly challenges involve interpretations of fire safety codes for these residential settings by the State Fire Marshal’s office.

The community developmental disability service system is built upon the foundation of community integration. It is vitally important that Kansans with developmental disabilities be allowed to live in the community, in settings that are as close as possible to the homes you and I live in.

Providers make every effort to provide a truly integrated residential setting. In many cases, that means renting or purchasing already-built residential properties in ordinary neighborhoods across the state.

Many providers have also constructed residential settings throughout the years, and these homes also reflect the strong desire for community integration. In fact, many of these settings are from the outside, virtually indistinguishable from ordinary homes. The number of persons with developmental disabilities that live within these settings is small – typically four to eight at maximum.

So it is with this history focused on integration in mind that providers are exasperated to find these community residential settings viewed by the State Fire Marshal through the same regulatory lens as large institutional congregate settings. As a result, many small residential settings have been made to take extraordinary measures to fall into compliance. Measures that cost tens of thousands of dollars to implement – all due to interpreting these home settings the same as if they were institutional settings.

Consider the following feedback from a DD provider in South Central Kansas:
“Requirement of use of fire sprinkler systems in any setting with a basement or second story living area effectively limits the ability to provide community services. Many organizations use rental homes to provide services to persons with developmental disabilities in the community.

Landlords that we lease from always ask us to pay for items that are above and beyond what they would normally have in place in their homes. Up to this point in time, that has been inter-connected smoke detectors in each bedroom and living area.

Requiring the use of fire sprinkler systems in these homes places an unreasonable burden on providers at a time when we are all being challenged by cuts in our funding from the state. Retrofitting an existing home with a fire sprinkler is not something that we would want to fund for a property we do not own, which would lead us to utilize more agency owned homes. Many organizations would not have the capital to fund the construction of new homes to meet the existing demand.

The state does not subsidize the housing costs for persons with developmental disabilities. Organizations must fund these costs through room and board fees paid by our consumers. All are very low income, most limited to SSI. Room and board fees paid usually do not cover the costs of a rental home and utilities. Adding new costs to retrofit fire sprinkler systems will make these services cost prohibitive.”

Or this feedback from a provider in Western Kansas:
“It seems that every time the Fire Marshal visits our sites, we have some corrections to be made. The items needing corrections were there for years and there were no tags issued, however it seems that whenever they cannot find anything major, they start getting pickier as if they have to justify their visit by identifying an area of correction.

Just recently we had a tag in one of our homes for not having paneling in one of the bedrooms painted with ‘Intumescent’ flame retardant paint. The paneling in this room had been installed for more than 10 years (but recently it was painted blue) and there have been at least annual, if not more frequent visits to this home by the Fire Marshal. This was the only finding during that visit.
There are other requirements that seem silly. In one of our homes, the smoke detectors are too close to the ceiling fan, so our maintenance staff will need to go into the attic and move the smoke detectors further away from the ceiling fan to be in compliance with the fire marshal code. If a smoke detector is too close to a corner of a room, there are also tags issued.”

Or this feedback from a Wichita provider:

“We have recently been working with several inspectors in Wichita. This is when it came to our attention that they are not all on the same understanding of the code. Depending which one I as working with would determine what I was being told. The main disagreement was what had to be sprinkled and what did not. I was told by one that any home with a second level , either upstairs or down stairs would have to be sprinkled. If this is what the final decision is that will make it very difficult for providers to be responsive to client in crisis. Opening up a new home will become a long process. It won't be as easy as just going to rent a home. There are not many if any landlords that will pay for this. It will become yet another expense that falls to the provider to have to pay for.”

Or this feedback, from a North East Kansas provider:
“In 2009, our agency wished to renovate a home with a walk-out lower floor to include a third bedroom; this didn’t qualify for inspection. We sought information on what could be done to safely make an additional fourth bedroom on the lower level. We were informed until it was built and/or we planned to house a fourth consumer, it didn’t qualify for inspection, and that the office would not need to be involved in approving renovations of the facility until four persons occupied the structure (which did not occur; due to lack of input from the Fire Marshal, and concern for non-compliance in the future, only quarters for three individuals were created).

In 2009, our agency requested a window of time that we could anticipate an inspection, since we no longer had any other sites meeting “board and care” definitions. We telephoned three times and e-mailed twice. About four weeks after initial inquiries, we were notified by a voicemail that we were only due biannually and would not be inspected until June 2010. The support staff for the inspectors was contacted, and informed our agency that due to official regulations in place for other entities, by act(s) of the legislature, these facilities were prioritized. Budget and staffing concerns made it impossible to perform inspections by request for entities (community service providers) not currently attached to annual inspection regulations within the Fire Marshal office. Their office was unable to act based upon SRS regulations, as these regulations did not originate within their organization.

Our agency requested at the time of the contact in the prior paragraph, if a person certified in another geographic area could perform the inspections in our county, and were informed no. This was not possible as we were not within the service area for the other county’s fire department. This seems to contradict some practices recommended by SRS QE staff; a certified inspector who works with two fire departments in other counties was performing inspections for many providers in Riley and adjacent counties.

Continued requests for inspections (which are required for our SRS licensing) were not addressed; upon contacting the Fire Marshal inspection support staff in January 2010, our agency was told that we had violated standards by making renovations without the prior approval of the Fire Marshal. The agency was informed that had our organization remained in compliance, we would have ordered pre-renovation and post-renovation inspections to assure compliance with structures, however, this process may have taken several weeks or even a few months from start to finish. This did, however, prompt an inspection to be scheduled; one is to take place with priority as soon as their office visits our area again.”

These examples are representative of many, many more experiences that community DD providers can share.

However, it is important to note that our providers are serious about providing safe residential settings for the persons they support. Kansas DD providers will gladly do what it takes to ensure safety. All they ask is:

• That the test of common sense be applied by the Fire Marshal’s office when these types of residential settings are reviewed,

• That the Fire Marshal’s office work more closely with other State entities charged with regulating these services, including SRS,KDHE, Department on Aging and Department of Education

• That fire safety codes be interpreted consistently by those within the Fire Marshal’s office,

• And that the Fire Marshal’s office be more responsive and accountable to those whom they inspect.

We believe that bringing the State Fire Marshal’s office within the structure of the Department of Insurance would create an opportunity for the above goals to be met.

We support passage of HB 2444.