HJR 685: Joint Subcommittee to Study Private Youth and Single Family
Homes in the Commonwealth
November 30, 2005
The final meeting
of the HJR 685 study opened with a public hearing at which four individuals
spoke. Mr. Stuart W. Brust of Lynchburg informed the joint subcommittee
about a group home that was recently established across the street from
his home that appears to be well managed with limited and stable residents.
The home has increased the activity in the neighborhood but has not been
burdensome. However, there are concerns about the possibility of additional
group homes developing in the neighborhood. Dr. Brust suggested that different
zoning classification could be given different occupancy limitations.
He also observed that neighborhoods are fragile and that group homes alter
perceptions and suggested a spacing requirement of 1,200 feet between
group homes would contribute to neighborhood stability. He also explained
that the quality of the management and other factors such as clustering
are factors in retaining a residential environment.
Mary Ann Bergeron,
representing the Virginia Association of Community Services Boards, reiterated
the VACSB's recommendation relating to adult group homes regarding CSB
and government liaisons, best practice guidelines, assessments, increased
unannounced inspections, and use of provisional licensure to improve performance.
In regard to children's group homes, VACSB recommended careful monitoring
to ensure appropriate licensure by DMHMRSAS for group homes that serve
residents with serious emotional disorders, mental retardation and substance
use disorders, consistent application of regulations on management and
staff qualifications, appropriate placement to meet the needs of the resident,
evaluation of the provider's licensure record prior to placement, development
and use of care coordination expectations, and use of provisional licensure
to improve performance.
Ms. Jennifer G. Fidura,
representing the Virginia Network of private Providers, declared the members
of VNPP are willing to work with the VACSB to implement their recommendations.
She also emphasized that the appropriate regulations were in place to
enhance the group home industry; however, the agency staffs are overworked
and adequate resources need to be provided to enforce the regulations.
Responding to many questions, Ms. Fidura noted that the current regulations
set minimal standards; however, how to evaluate new providers is an evolving
process, particularly in view of the growth in the industry. She also
expressed expectations that enforcement of the regulations could improve
the situation and noted that the providers are serving individuals who
are challenging. The issues are difficult because originally only a small
number of stable residents were being placed in the group homes in the
community; now, however, the numbers and needs of the individuals have
Ms. Gladys Tucker
spoke as a concerned citizen living in Richmond, stating her belief that
a transition program is needed, with trained individuals delivering appropriate
services that include vocational education and social skills.
on Dispersal Requirements
the public hearing, staff presented a memorandum on dispersal requirements.
The provisions of the federal Fair Housing Act as amended prohibit local
governments from making zoning or land use decisions or implementing land
use policies that exclude or otherwise discriminate against protected
persons, including individuals with disabilities. The facts and decisions
of four federal Circuit Courts of Appeal were also reviewed.
St. Paul, Inc. v. City of St. Paul, Minnesota, a decision emanating
from the eighth circuit, upheld a density restriction. Familystyle, Inc.,
the provider in the case, sought special use permits to add three houses
to a one and one-half block area where eighteen group homes were already
located. The additional three homes would have increased the capacity
within this small area from 119 to 130 mentally ill persons. The court
agreed that dispersal requirements address the need of providing residential
services in mainstream community settings and concluded that the goal
of deinstitutionalization stated by Minnesota was valid and legitimate.
The Sixth Circuit
Court of Appeals came to a conflicting conclusion in Larkin v. State
of Michigan Department of Social Services, opining that a Michigan
Adult foster Care Licensing Act provision requiring a 1,500 feet separation
between facilities (unless permitted by a local zoning ordinance) conflicted
with and was expressly preempted by the Fair Housing Act. Thus, the Court
found that the spacing requirement was facially discriminatory because,
by their very terms, they would only apply to adult foster care facilities
that will house the disabled, but not to other living arrangements.
In Horizon House
Developmental Services, Inc. v. Township of Upper Southhampton, the
Third Circuit Court of Appeals affirmed, without opinion, a District Court
decision that found a distance requirement to be facially discriminatory
in violation of the federal Fair Housing Act, in violation of the equal
protection clause of the Fourteenth Amendment, and unlawfully and unconstitutionally
discriminatory in effect. Horizon House, the group home provider in the
case, brought this action seeking a declaration that an ordinance imposing
a distance requirement of 1,000 feet for group homes within the Township
of Upper Southhampton discriminated against people with handicaps in violation
of the Fair Housing Act and the equal protection clause; and also seeking
to enjoin the enforcement of the ordinance. Horizon House already had
two houses within 1,000 feet of each other. Although the Township argued
that the ordinance is necessary to prevent the clustering of people with
disabilities and to integrate them into the community, the District Court
found, similar to the Sixth Circuit, that the anti-clustering rationale
is not an adequate justification under the FHAA, and that the ordinance
on its face excluded, restricted, or limited the number of people with
disabilities for choosing where to live.
More recently, a
United States District Court in the 7th Circuit held that a spacing requirement
was invalidly applied to the plaintiffs in United States v. City of
Chicago Heights. The court did not invalidate the spacing requirement
itself, as in the previous cases, rather the court decided to invalidate
its application. The City of Chicago denied a housing provider (Thresholds,
Inc.) a special use permit requesting a waiver of the 1,000 foot spacing
requirement in the 1972 Zoning Code, permitting family community residences
(group homes) in single family residential zones upon obtaining a certificate
of occupancy. Thresholds, Inc. requested a special use permit and asked
the city to make a "reasonable accommodation", as required by
the FHAA, for people with disabilities, that the application for obtaining
HUD funding was already in progress, and the contractor was ready to begin
construction. Thresholds, Inc. also explained that the residence existing
within 1,000 feet of the proposed site had only three residents with very
different disabilities than those to be served by Thresholds' proposed
facility. The Planning Commission voted unanimously to recommend that
the City deny Thresholds' application for a special use permit. The court
opined that the City was required to reasonably accommodate Threshold's
request for a special use permit, reasoning that discrimination under
the FHAA includes "a refusal to make reasonable accommodations in
rules, policies, practices, or services, when such accommodations may
be necessary to afford handicapped persons equal opportunity to use and
enjoy a dwelling" and that the requested accommodation was reasonable.
In conclusion, the
staff reasoned that there is no hard and fast answer to the question of
whether a spacing requirement would be upheld in the fourth Circuit (the
federal circuit in which Virginia is located). Noting that the facts of
the reviewed cases are very different, resulting in decisions based on
various rationales, the risk of an adverse decision would be high because
three of the four reviewed cases found density restrictions to be in violation
of the federal Fair Housing Act.
During the work session,
the joint subcommittee reviewed, discussed, and reached consensus on alternatives
to address four broadly stated issues.
Issue I relates
to potential actions to expedite the implementation of HB 2461 and SB
1304, legislation that was enacted during the 2005 Session. HB 2461 and
SB 1304 were identical bills enacted to require the four departments (Education,
Juvenile Justice, Mental Health, Mental Retardation and Substance Abuse
Services, and Social Services) cooperating in the Interdepartmental Licensure
program to promulgate relevant regulations to provide: (i) specifications
for the structure and accommodations of such homes or facilities according
to the needs of the children to be placed; (ii) rules concerning allowable
activities, local government and home- or facility-imposed curfews, and
study, recreational, and bedtime hours; and (iii) a requirement that each
home or facility have a community liaison who will be responsible for
facilitating cooperative relationships with the neighbors, the local school
division, local law enforcement, local government officials, and the community
During its meetings,
the joint subcommittee learned, however, that the provisions of these
two identical bills have not yet been implemented because the entire package
of regulations had been revised in 2004 prior to the passage of the bills
but have not yet been approved to be proposed. Therefore, the perception
is that no action to implement the new law should be taken by the various
boards until the revised regulations are released for public comment,
at which time the requirements of the bills could be recognized through
public comments, and the regulations revised to include the required provisions.
Issue II relates
to additional license regulation requirements to improve the quality of
group home services and enhance accountability. The various alternatives
addressed many health and safety issues relating to the residents and
measures to ensure that group home operators and staffs are trained and
qualified to deliver the services.
relates to providing legal authority to summarily suspend group home licenses.
Although all of the agencies licensing group homes have the authority
to deny licenses, the authority to summarily suspend in situations threatening
to the health and safety of the residents, i.e., immediately terminate
the license while providing due process to the operators to examine the
issues, was not available until 2005.
In the 2005 Session,
the Department of Mental Health, Mental Retardation and Substance Abuse
Services obtained this authority for children's group homes but still
does not have summary suspension authority for adult group homes. Further,
the three other agencies cooperating in the Interdepartmental Regulation
program for children's facilities (DOE, DJJ, and DSS) still do not have
the authority to summarily suspend a license even in the most egregious
Issue IV relates
to accountability in the Comprehensive Services Act program vis-a-vis
reimbursement rates, placements across jurisdictional lines and monitoring
of services through site visits and utilization review.
For Issue I,
the joint subcommittee recommended enforcement of the required regulatory
provisions by requiring the four boards to adopt emergency regulations.
For Issue II,
the joint subcommittee recommended, after detailed discussion, requiring
regulations to address the following:
- Requiring prior
- Training for providers
and staff in locating group homes and good neighbor policies and community
- Screening of residents
prior to placement to exclude placement of individuals with histories
of violence in residential facilities in the community.
- Reporting to local
governments and placing and funding agencies (e.g., CSA state and local
offices) of multiple health and safety or human rights violations in
- Requiring timely
notification to local government offices of applications for, initial
licensure of or renewal, denial, or provisional (when resulting from
health and safety or human rights violations) licensure of group homes.
- Requiring the
Interdepartmental Regulation Program to disseminate to local agencies
or maintain on the DSS website an accurate list of licensed and operating
group homes by locality with information on services and the lead licensing
- Requiring face-to-face
interviews with all initial and renewing applicants to ensure the operators
have the appropriate training and experience to operate the relevant
- Requiring self-reporting
of lawsuits against or settlements with group home operators that relate
to health and safety or human rights of the residents.
- Requiring proof
of contractual agreements or staff expertise to provide counseling services,
psychological services, medical services or any other service needed
to serve the residents in accordance with the operational plan.
was also devoted to requiring annual collection of data on public safety
agency (police, emergency medical services, and fire department) responses
to group homes that are necessary to protect the health, safety, and welfare
of children. Although a motion on this matter received more votes for
than against, the resolution's requirement for a majority of both the
House and the Senate was not satisfied.
For Issue III,
the joint subcommittee determined to introduce legislation to provide
summary suspension authority to DMHMRSAS for adult facilities and to the
other three agencies cooperating in the Interdepartmental Regulation program
for children's facilities.
For Issue IV,
the joint subcommittee heard that data is being collected, but that it
is not yet available, regarding the rates paid or the effectiveness of
the services and utilization review in the CSA program. The joint subcommittee
determined to introduce legislation relating to accountability as follows:
- Require removal
of CSA children from and prohibit additional placements in children's
group homes that have had their license lowered to provisional as a
result of multiple health and safety or human rights violations (see
also the second issue decisions).
- Require local
CSA agencies to report the rates paid and the services contracted for
each child placed in a group home to determine whether the state and
local agencies are paying reasonable fees for the services delivered.
- Require the Community
Placement Management Teams to document that no appropriate placement
is available in the locality of origin before placing a child across
- Require the CPMTs
to initiate development of group homes in their localities if few or
no such homes are operating in their localities and mandate annual reporting
of the progress in developing the local group homes, the number of across
jurisdictional line placements, and the rationale for the placements.
- Require notice
to local school divisions when children placed across jurisdictional
lines will attend the public school, particularly when involving children
with disabilities and foster care children, to facilitate the enrollment
of the children in the public schools and compliance with the federal
Individuals with Disabilities Education Act and Virginia law and regulations.
In addition, the
joint subcommittee agreed to combine alternatives listed under Issues
I and IV relating to Joint Legislative Audit and Review Commission
study of regulation and reimbursement of group homes. JLARC will be asked
to examine the efficacy and effectiveness of the Interdepartmental Regulation
program to determine its viability and/or whether it should be continued
and to ascertain the rates being paid for group home placements of Comprehensive
Services Act children and the comparability of the services delivered
to CSA children in group homes to determine whether and how a rate setting
authority should be reinstated or rate limitations should be established.
Norma Szakal and