Division of Legislative Services > Legislative Record > 2005

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 increased.

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.

Legal Memorandum on Dispersal Requirements
Following 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.

Familystyle of 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 at large.

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.

Issue III 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 circumstances.

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 relevant experience.
  • Training for providers and staff in locating group homes and good neighbor policies and community relations.
  • 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 group homes.
  • 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 agency.
  • 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 group home.
  • 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.

Considerable discussion 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 jurisdictional lines.
  • 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.

For information, contact:
Norma Szakal and Bryan Stogdale
DLS Staff



Division of Legislative Services > Legislative Record > 2005 

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