Five compliance issues on ASHE's regulatory radar

Advocacy is a key component of the American Society for Health Care Engineering's efforts to optimize the health care physical environment.

Image from Getty Images

As one of the most regulated fields in the country, health care certainly has no shortage of new regulatory, compliance and code requirements impacting facilities management that the American Society for Health Care Engineering’s (ASHE’s) Regulatory Affairs Team is monitoring in 2026.

But one of the top items on the team’s list this year is legislation that impacts the ability to even create codes and standards for the field. That and other issues are discussed in this ASHE advocacy roundup.

Pro Codes Act progress

New federal legislation named the Protecting and Enhancing Public Access to Codes Act (Pro Codes Act) addresses whether privately developed codes and standards — such as building, fire, electrical and life safety codes — retain copyright protection once they are adopted or incorporated by reference into law. A longstanding practice, this copyright protection has come under attack by groups that have argued in court that such codes and standards should be part of the public domain.

For decades, governments and authorities having jurisdiction (AHJs) have relied on consensus-based standards developed by organizations like the National Fire Protection Association (NFPA), International Code Council and others to serve as the technical backbone of laws and regulations. These organizations fund their work largely through copyright-protected sales and services related to those standards.

Recent court decisions have created uncertainty in this practice by suggesting that once a standard is incorporated into law, it may lose copyright protection entirely and enter the public domain.

Supporters of the Pro Codes Act, which includes ASHE, argue that these decisions undermine the public-private standards development system by threatening the financial model that allows these organizations to create, maintain, update and continuously improve safety codes. They contend that weakening copyright protection could reduce the quality, speed and availability of future standards — at a time when emerging risks like lithium-ion batteries (discussed later) and other new technologies demand rapid technical updates, says Chad Beebe, AIA, CHFM, CFPS, CBO, FASHE, ASHE’s deputy executive director of regulatory affairs.

The Pro Codes Act seeks to resolve this tension by reaffirming that codes and standards can retain copyright protection, provided the standards development organization makes the incorporated material available to the public for free in an online, publicly accessible format. The bill also places the burden of proof on parties claiming a standard lost copyright protection due to lack of public access.

Opponents of the Pro Codes Act, including some library and open-access advocates, argue that the bill could still restrict meaningful access to the law and create barriers for reuse, downloading and analysis of legally enforceable requirements.

At its core, the debate is about balancing public access to the law with sustaining the standards development system that underpins health, safety and building regulation in the United States, Beebe says, and should be closely monitored by health care facilities professionals.

“This issue matters greatly. The Regulatory Affairs Team is directly involved in developing these codes, with staff serving on technical committees responsible for more than 100 of the codes and standards discussed in the Pro Codes Act hearing,” Beebe says. “Eliminating the ability of standards development organizations to protect their work through copyright directly affects their revenue, which in turn undermines the ability of these nonprofit organizations to invest in the continued development, maintenance and improvement of these critical safety documents.”

The ability of standards development organizations to collect revenue is how they keep the wheels turning in regulation development to ensure codes and standards are current and relevant to modern-day health care facilities. Entrusting this continual review and update process to the field itself or the government would derail the process and likely kill the ability to get unbiased field consensus on regulations, Beebe argues.

“CMS (the Centers for Medicare & Medicaid Services) is already using 14-year-old codes — can you imagine how far behind they would be if they developed their own? We’d be working with regulations that are 30- to 40-years-old,” he says.

ASHE has called on members to support the Pro Codes Act by encouraging their representatives to pass the legislation, which is being considered by Congress. To monitor progress on the bill, visit congress.gov/bill/119th-congress/house-bill/4009.

Battery safety issues

Balancing patient safety with high-quality care is difficult in many areas of health care given the population is so vulnerable. This high-stakes risk versus benefit evaluation is certainly on display in the ongoing evaluation of regulations governing rechargeable batteries.

NFPA has convened representatives from 45 fields, including health care facilities management, to weigh in on potential standards governing the use of rechargeable batteries in buildings as part of the new NFPA 800, Battery Safety Code. ASHE officials are serving on the NFPA 800 committee to ensure the standard doesn’t impede health care staff from using batteries in life-saving procedures or as part of patient-supportive facilities operations.

“Batteries are everywhere now, and the codes haven’t really caught up to address the risks,” says Leah Hummel, AIA, CHFM, CHC, CHOP-B, SASHE, senior associate director of regulatory affairs at ASHE.

While there have been fires in hospitals due to rechargeable batteries, their typically safe use in everything from patient cell phones to mobile IV pumps requires a careful examination from the field, Beebe says. To help with this effort, ASHE has convened the Battery Safety Task Group made up of members from all areas of facilities management that will help inform ASHE’s guidance on the issue, both with NFPA as well as ASHE’s own facilities recommendations. The group will work to outline how and why batteries are used and needed in health care facilities and what should be done to proactively address battery risk in a way that makes sense for facilities.

For example, at one point the NFPA committee proposed limiting the number of batteries the higher up one is in a building. ASHE argued that not only would that be extremely difficult to enforce in a hospital but also that the fire-resistant construction of a hospital and its requirement to be sprinklered further mitigate the risk of batteries. At the same time, because batteries can pose a risk, especially while charging, it likely would be beneficial for facilities managers to know where batteries are located and have a procedure in place for inspecting and monitoring them in some capacity, says Jonathan Flannery, MHSA, CHFM, FASHE, FACHE, senior associate director of regulatory affairs at ASHE.

The task group has called on facilities professionals to share battery equipment inventory data, examples of battery fire incidents and battery safety policies to help inform ASHE’s guidance on the issue. To learn more, facilities professionals can read the Health Facilities Management article “ASHE task group tackles battery safety in health care.” 

Weapons detection installations

One area of ambiguity in health care facilities codes has taken a step toward resolution, thanks in part to ASHE’s advocacy efforts — though the work is still ongoing. In 2024, the state of California passed a regulation (Assembly Bill 2975) requiring hospitals to install weapons detection systems in public entrances by March 1, 2027, to address growing workplace violence concerns. But after several hospitals moved forward with installing the systems, some were cited by AHJs claiming they were prohibited by NFPA 101^®, Life Safety Code^®, because the systems would obstruct the path of egress.

After receiving complaints on the citations from members, ASHE’s Regulatory Affairs Team members who sit on the NFPA Health Care Committee and Means of Egress Committee raised the issue and worked on language for tentative interim amendment (TIA) 1869, which was issued April 15, 2026, with an effective date of May 5, 2026. The TIA agreement applies to the 2012, 2024 and 2027 editions of NFPA 101 and clarifies the requirements for safe installation of weapons detection systems in the path of egress.

While this is an important step, the regulatory work on this issue is not yet completed as of this writing, Hummel says. That’s because in order for CMS to recognize this TIA, and no longer have its AHJs cite hospitals, it would have to specifically reference the TIA in its Conditions of Participation (CoP), which has yet to occur, or would need to adopt the 2027 edition of NFPA 101 for it to be applied to its code enforcement. This is just one of several examples pointed out by ASHE (discussed later) where CMS adopting the latest version of the Life Safety Code would reduce burden and improve care.

“There are typically so many issues before not just CMS but also the Department of Health and Human Services and the federal government in general that to get the attention of the people who can make that decision is a challenge,” Hummel says. “So, we all need to be making our voices loud and clear. We need to be writing to CMS. We need to be writing to our congressional representatives and senators in Washington, D.C., asking them to persuade CMS to update their CoPs to reference the upcoming 2027 code editions and ultimately reduce the burden of applying outdated codes.”

Tempered water code

In one recent advocacy win, health care facilities are no longer required to provide tempered water at hand-washing sinks after research showed doing so did not reduce the risk of infection. In fact, having the tempered water available at the sinks could be increasing infection risk, Flannery says.

This recent International Plumbing Code (IPC) regulatory change improves patient care and reduces cost — and is an issue ASHE has been advocating for more than nine years, Flannery says. When ASHE first started looking into the risk versus benefit of requiring tempered water lines in hand-washing stations, it initially faced some backlash from groups convinced tempered water was necessary for killing germs during hand-washing. “By working with people who were against what we were doing — our opponents — it actually led to a stronger case once the data revealed results,” Flannery says.

The code required that tempered water be 85 to 110 F at hand-washing stations. But since microorganisms, like Legionella, thrive in warm and hot water, studies found that having barely used (and sometimes dead) legs of tempered water piped to sinks could increase the risk of disease. Studies showed that the 85 to 110 F temperature range was actually the prime growing temperature for Legionella, Flannery says.

After years of research and presenting data to IPC, the plumbing code governing health care facilities hand-washing stations removed the tempered water requirement in the 2027 edition.

“This is a huge win; it’s a huge reduction in cost because you don’t have to have a second line of copper. But the science proved that you don’t need hot water to properly wash your hands, especially with good antimicrobial soap,” Beebe says.

CMS code set adoption

On the heels of an unsuccessful push to get CMS to upgrade their required code set from the 2012 editions of NFPA 99, Health Care Facilities Code, and NFPA 101, to the 2024 code editions, ASHE has now turned its attention to asking CMS to implement NFPA’s brand new editions of the codes — the 2027 editions of NFPA 101 and NFPA 99, expected this fall.

CMS has a tradition of adopting the newest code edition only when it feels the current edition in use is significantly hindering the survey process — but this approach leads to extensive delays in updates, Flannery says. The key to convincing CMS to upgrade its code set is by demonstrating how using the 2012 edition is causing burden, financial headaches or holding back progress in health care — all issues ASHE’s Regulatory Affairs Team says are occurring.

For example, the 2012 edition of NFPA 99 calls for following the 2008 edition of American National Standards Institute/ASHRAE/ASHE Standard 170, Ventilation of Health Care Facilities. But several new editions of Standard 170 have been released since 2008, featuring updated requirements that improve patient care and operational efficiency, Flannery says. The 2025 edition of Standard 170, for example, improved unoccupied turndown guidance for general and specialty outpatient spaces by clarifying where unoccupied turndown can be used — which reduces energy use for facilities and saves resources that can be redirected to patient care.

In addition to improved practices being outlined in newer editions of NFPA 99 and 101, significant work has been done by ASHE and others in the health care facilities management field over the last 14 years to align disparate codes and reduce contradictions. While that work has gotten the field nearly “90% free of code contradictions,” Flannery says, the benefit of that work won’t be fully realized until entities like CMS adopt the most recent version of codes that have these contradictions ironed out.

Another reason to update the code set is that the newer codes address more current technology available for health care facilities.

For example, updates in the 2021 edition of NFPA 99 allow emergency power for essential electrical systems to be supplied by sources other than traditional generators or batteries, specifically recognizing and allowing the use of health care microgrid systems — technology that is prohibited by the 2012 code edition. “Those facilities that are not under the jurisdiction of CMS, like Veteran Affairs (VA) facilities as an example, are able to utilize that newer technology because the codes that they enforce allow it; the VA automatically updates to the latest edition of the code set. Whereas CMS hospitals cannot because they’re stuck using the old codes,” Hummel says.

While in many cases health care facilities professionals can file for an “alternate means and methods” or “equivalency” with CMS surveyors for using more recent code set methods or technology to meet compliance, that takes time and effort and wouldn’t be necessary if CMS just kept current with codes from the start, Flannery says.

Using the equivalency process or filing for alternative means and methods to align with new codes does show CMS and others that the field wants to use the updated code set, so it’s something ASHE is encouraging facilities professionals to do to support its call to update code sets. ASHE also is collecting examples from facilities on how using the 2012 code editions is causing undue burden and hindering patient care — examples that can be sent to the Regulatory Affairs Team at cbeebe@aha.org.

“To be clear, when ASHE is talking about codes causing ‘burden,’ that definition is rooted in whether a requirement meaningfully contributes to positive patient outcomes,” Beebe says. “That is why this work matters.” 

Chris Dimick is content development and communications manager at the American Society for Health Care Engineering and production editor at Health Facilities Management magazine.