Division of Legislative Services > Legislative Record > 2005

HJR 685: Joint Subcommittee to Study Private Youth and Single Family Homes in the Commonwealth

October 17, 2005

HJR 685 (Hall and Nixon), the enabling resolution for the study of group homes, establishes an 11-member joint subcommittee. Six are legislative members, Delegates Samuel A. Nixon, Jr. (chair), Mark L. Cole, Franklin P. Hall, Bradley P. Marrs, and Senators Janet D. Howell and Stephen H. Martin. Five are nonlegislative citizen members representing stakeholders, William C. Davidson, Virginia Municipal League; Bradford S. Hammer, Virginia Association of Counties; George Braunstein, Community Services Boards; and Charles Cooper and Donnie E. Wheatley, group homes.


The resolution asserts that current national policy is geared toward providing community-based care for persons with mental illness, mental retardation, or alcohol or drug dependency in order to improve their lives and integrate them into the community. The federal Fair Housing Act is referenced, averring that "national policy requires that single-family group homes be located in residential neighborhoods." State law requires that zoning ordinances treat group homes of eight or fewer people, of certain populations, as single-family dwellings.

The resolution observes the need for appropriate supervision of children and others who may reside in group homes. HJR 685 describes issues relating to the density of group homes in neighborhoods with affordable, large houses and the locating of group homes in close proximity in order to achieve economies of scale-sharing of staff and services. In addition, HJR 685 mentions the growth in the group home industry. The study resolution indicates that "allowing concentration" of group homes in neighborhoods could "become tantamount to re-institutionalization." HJR 685 directs the joint subcommittee to:

  • Analyze the licensing requirements and enforcement of licensing standards, the need to notify localities of licensing violations, the rationale for and impact of concentrations of homes in certain communities, the appropriate siting requirements for such homes, and other issues that affect the integration of youth group home residents into the community.
  • Study the excessive concentration of single-family group homes in certain neighborhoods, the adverse effects of this concentration on the residents of single-family group homes, the adverse effects of this concentration on those neighborhoods, and feasible regulatory alternatives that would result in more appropriate locations of single-family group homes for the mutual benefit of the residents thereof and the affected neighborhoods.


Group homes and other residential facilities for children are regulated by four departments through the Standards for Interdepartmental Regulation of Children's Residential Facilities, a regulatory scheme that sets out core requirements, with each department adding specific requirements. Although little statutory law is devoted to interdepartmental licensure, the initiative for development of interdepartmental regulations for children's group homes and residential facilities has existed for approximately 30 years in order to reduce inconsistency and redundancy in licensure requirements.
The interdepartmental regulatory activities reside in the Departments of Education, Juvenile Justice, Mental Health, Mental Retardation and Substance Abuse Services, and Social Services. The Department of Social Services is the repository for the interdepartmental program; however, there is no actual law providing for this responsibility.
Prior to the 2005 Session, the sparse law relating to the interdepartmental regulatory program was located in four code sections, §§ 22.1-323.2, 37.1-189.1, 63.2-1737, and 66-24. The language directed the departments to:

. . cooperate with other state departments in fulfilling their respective licensing and certification responsibilities and in reducing and simplifying the regulations involved in the licensing and certification of [residential facilities/group homes]. The Board may promulgate regulations allowing the Department . . . to so assist and cooperate with other state departments.

2005 Legislation on Group Homes
HB 2461 and SB 1304
During the 2005 Session, group home issues were addressed by the identical companion bills HB 2461 (Nixon) and SB 1304 (Martin). The bills require the four departments to promulgate relevant regulations addressing group homes and other residential facilities for children to ensure the education, health, welfare, and safety of the juveniles. Specifically, the departments are to provide:

  • Specifications for the structure and accommodations of such homes or facilities according to the needs of the children to be placed.
  • Rules concerning allowable activities, local government and home- or facility-imposed curfews, and study, recreational, and bedtime hours.
  • 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.

The relevant department's responsibility to promulgate regulations was changed from permissive (may) to mandatory (shall). Because the Department of Education's authority had been limited to facilities providing special education and its scope may have extended beyond this limitation, the Department of Education was provided general authority to regulate group homes that deliver educational services.

The law relating to the Department of Juvenile Justice was amended to require cooperation with other state departments, to mandate regulations, and to require that the department contract with group homes or other residential facilities that are licensed or certified in accordance with the department's regulations.

SB 1331 and HB 2881
Also during the 2005 Session, group home issues were addressed by identical companion bills SB 1331 (Martin) and HB 2881 (Nixon). The bills relate only to the Department of Mental Health, Mental Retardation and Substance Abuse Services and authorize the Commissioner to suspend the license of a group home when conditions exist that pose an immediate and substantial threat to the health, safety, and welfare of the children and the Commissioner believes the operation should be suspended pending a proceeding. The bills provide due process-notice, a hearing within three business days, and appeal to the circuit court. Failure to follow the suspension order is punishable as a Class 2 misdemeanor. Other state or local agencies may be required to assist the Commissioner in relocating children if a facility's license is suspended.


Virginia Statute-Zoning and Occupancy Issues
Section 15.2-2291 of the Code of Virginia contains zoning ordinance and occupancy requirements concerning certain group homes that are to be considered single-family residential housing, including:

  • Subsection A-relating to "a residential facility in which no more than eight mentally ill, mentally retarded, or developmentally disabled persons reside, with one or more resident counselors or other staff persons" prohibits "conditions more restrictive than those imposed on residences occupied by persons related by blood, marriage, or adoption."
  • Subsection A-relating to facilities licensed by the Department of Mental Health, Mental Retardation and Substance Abuse Services.
  • Subsections B and C-addressing homes for the "aged, infirm or disabled," which are licensed as assisted living facilities, not group homes, and apply to specific jurisdictions.
  • Henry, York, and Arlington counties are governed by Subsection B for eight occupants. The Cities of Lynchburg and Suffolk are governed by Subsection A and for four occupants.

No rationale is known for the differences in the occupancy rates.

Trible v. Bland
The Supreme Court of Virginia addressed § 15.2-2291 in Trible v. Bland, a case alleging the violation of a town zoning ordinance when a certificate of use and occupancy was issued to a group home in a single-family dwelling in which 21 residents were authorized. The complaint concerning group homes in the case alleged that under § 15.1-485.3, the relevant section prior to the title revision, no more than eight persons were authorized to live in a group home. The Court held that § 15.2-2291 provides a floor and not a cap: "Nothing in the state statute prohibits a locality from being more permissive in its treatment of group homes than is required by the statutory language, which merely prohibits localities from being more restrictive."

Fair Housing Act and Group Home Issues
Discrimination Against Persons with Disabilities
The federal Fair Housing Act supersedes conflicting state laws and local ordinances and constrains state laws and the zoning power of localities by prohibiting discrimination against persons with disabilities. The Fair Housing Act covers individuals with physical or mental impairments, but the law does not cover persons who currently have an addiction or are engaged in the illegal use of a controlled substance.

Fair Housing Act Exception and Occupancy Restrictions
An exception to the Fair Housing Act authorizes maximum occupancy restrictions; however, the Commonwealth does not have a maximum occupancy statute based on the Supreme Court of Virginia's interpretation in Trible.
In 1995, the United States Supreme Court ruled in a case, City of Edmonds v. Oxford House, relating to a zoning ordinance that defined "family" as related persons, regardless of number, or a specified number of unrelated persons. The Court held that family-defining ordinances are not exempt from scrutiny under the Fair Housing Act. The court opined that the occupancy exception applies only to total occupancy limits that are numerical ceilings intended to prevent overcrowding in living quarters regardless of the relationships among the occupants. Although the scope of the Edmonds decision is limited, the Court's holding that such ordinances are subject to scrutiny under the Fair Housing Act exception, is cited as supporting the location of group homes in single-family home neighborhoods.

Fair Housing Act and Dispersal Ordinances
Research indicates that dispersal requirements are being used to ensure community integration of disabled persons and to prevent reinstitutionalization through the development of group home neighborhoods. In Familystyle of St. Paul, Inc. v. City of St Paul, a case involving a zoning ordinance that required a new group home to be located at least a quarter mile from an existing group home, the 8th Circuit found that the dispersal requirement did not violate the Fair Housing Act because the ordinance guarantees that the facilities will be "in the community," rather than in a group home neighborhood with an institutional environment. The Court also found that the Fair Housing Act is not intended to segregate disabled persons from the mainstream of society and that the ordinance was not discriminatory.


Department of Education
The interdepartmental regulatory standards do not include a "group home" designation. Licensure and certification are issued as children's residential facilities. For the purposes of the study, the Department of Education defines "group home" as having a capacity of eight or under. The Department of Education regulates children's facilities that provide special education and student services and is the lead agency under the Interdepartmental Regulatory Structure for 34 facilities, including 22 group homes. The Department of Education licenses the education programs in group home facilities that are regulated by the Departments of Mental Health, Mental Retardation and Substance Abuse Services, Juvenile Justice, and Social Services.

Department of Juvenile Justice
The Department of Juvenile Justice (DJJ) operates a certification program that differs substantially from the interdepartmental standards, because all of its facilities are operated by local governments or regional commissions; regulations relate to monitoring, approval, and certification of juvenile justice programs; the facilities are included in the relevant local plan as approved by the local governing body; and the children are placed by court order or by a court service unit in consultation with the parent or legal guardian. Twenty-eight group homes, all in operation for over 15 years, are certified by DJJ under the Virginia Juvenile Community Crime Control Act, with 1,683, predominantly male, juveniles placed in 2004, ranging in age from 12 to 18 years-averaging 15 years old. The DJJ is authorized to limit the number of juveniles housed in a facility and periodically reviews expenditures and programs for compliance with the local plan and the department's regulations.

The Department of Mental Health, Mental Retardation and Substance Abuse Services (DMHMRSAS) is the only agency among the core licensure departments that licenses both children and adult group homes. For the purpose of this study, DMHMRSAS defines group home to mean the facilities zoned as single-family dwellings. DMHMRSAS has its own inspectors, investigates complaints and allegations of unlicensed programs, issues licenses and certifications, and determines disciplinary actions. Included under the rubric of DMHMRSAS are children's and adults' facilities providing mental health services, services for mentally retarded individuals, substance abuse treatment/rehabilitation, and brain injury services, for a total of 468 providers of 1,138 services at 2,811 locations. Among these regulatory operations, 103 children's group homes and 738 adult group homes are covered by the study addressing clinical treatment, training, and habilitation services; behavioral management; medication administration; and human rights regulations. DMHMRSAS is the lead licensing agency for 81 of the children's group homes and is secondary licensing authority with Department of Education for 22 other homes. Among the children's group homes, 88 deliver mental health services, 30 deliver mental retardation services, and 13 provide substance abuse services. Within the DMHMRSAS licensed homes, males outnumber females, comprising slightly more than half of the residents. Because some DMHMRSAS group homes are now funded through Medicaid, the relevant programs have to comply with specific Medicaid requirements.

The children's group homes that are licensed by DMHMRSAS fall under the interdepartmental standards offering specialized treatment and services for youth with mental illness, mental retardation, substance abuse disorders, and brain injury. Facilities providing programs in the home are also covered when delivering individualized interventions, treatment, training or support for children. DMHMRSAS inspects facilities upon initial licensure approval and conducts unannounced inspections for licensed facilities at least once per year. In addition, all complaints must be investigated to determine whether a regulatory violation has occurred. DMHMRSAS has issued 20 provisional licenses (a reduced license requiring increased monitoring and other steps to improve performance) to 16 children's group homes, obtained voluntary licensure surrender from 12 homes, and has denied one license over the last three years. DMHMRSAS has summary suspension authority for the children's group homes, but not for the adult group homes. Implementation of the summary suspension bills approved in 2005 is on track; a stakeholders group met to develop emergency regulations, which were approved by the Department in September and await the Governor's approval.

Among the 738 adult group homes licensed by DMHMRSAS, 720 are mental retardation group homes and 18 are mental health group homes. Occupancies in the homes range from nine to 16 residents with the average occupancy 5.6 residents; 813 unannounced inspections took place during fiscal year 2005 and 53 complaints were investigated. In the past three years, DMHMRSAS has issued 33 provisional licenses to 20 adult group home providers, obtained voluntary licensure surrender from four providers with multiple violations, placed one provider on probation, and initiated four actions for license revocation with two revoked and two on appeal.

Department of Social Services
The Department of Social Services (DSS)promulgates the Standards for Interdepartmental Regulation of Children's Residential Facilities along with the Department of Education, DJJ, and DMHMRSAS. Each department regulates according to the population served, services offered, staff qualifications, and program focus. In its licensure role, DSS licenses small group homes, campus style children's homes, and other children's homes, which may include mother/baby programs, independent living programs, and temporary care programs. DSS is the lead licensure agency for 83 children's group homes, 53 of which have a capacity of eight or fewer; and shares regulatory responsibility for 13 facilities with the Department of Education. The DSS licensure program regulates 5,264 providers and registers 2,128 providers.

For the purpose of this study, DSS uses the Comprehensive Services Act (CSA) definition of group homes as licensed residential programs providing supervision in a homelike environment. The programs are usually a step-down from a more secure residential placement and may provide social skills training and/or vocational training. Reminding the members that regulators do not place the children, the DSS noted that the regulating agency can require that a child be discharged if placed inappropriately, unless the child was placed in the facility by court order.

The children's residential facility industry has grown significantly in the past five years, increasing from 165 facilities in 2000 to 295 facilities in 2005. DSS stated that 1,385 CSA children have been placed in group homes, with 56 % being males and the average age being 16 years and 5 months.

CSA children are placed by the following:

  • Local DSS (76%)
  • Court services units (10%)
  • Local school divisions (5%)
  • Community services boards (2%)
  • Families or others (1%)

The children are placed because of caregiver absence or incapacity, neglect, physical or sexual abuse (34%), behavior issues, truancy, runaway (32%), emotional, mental health, substance abuse reasons (18%), court involvement relating to illegal activities (13%), and special education considerations.

DSS has authority to invoke intermediate sanctions for infractions, such as civil penalties, mandatory training, probation, reduced capacity or limitations on new admissions, notification to consumers, and withholding of public funds; and ultimate sanctions, such as initial or renewal license denial and license revocation. Since October of 2002, DSS has denied or obtained voluntary withdrawal of five initial license applications, denied seven license renewal applications, obtained four voluntary closures after sanctions were imposed, and imposed sanctions on six operators.


At this time, no action has been taken to implement the laws passed during the 2005 Session pursuant to HB 2461 and SB 1304. Interdepartmental standards were already in the revision process prior to the passage of the bills. It was assumed by DSS that the draft regulations, which have not yet been approved by the Governor or proposed, could be amended during the public comment period to address the legislation more specifically.


Two additional meetings of the group home study will be held in November. The November 17 meeting will focus on the concerns of local governments, group home operators, and advocates and will include additional regulatory information.

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



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