HJR 685: Joint Subcommittee to Study Private Youth and Single Family
Homes in the Commonwealth
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
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
- 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.
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
. . 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.
on Group Homes
2461 and SB 1304
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:
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
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
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.
CASE LAW RELATING TO GROUP HOMES
and Occupancy Issues
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
Against Persons with Disabilities
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.
Act Exception and Occupancy Restrictions
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.
Act and Dispersal Ordinances
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
BY REGULATORY AGENCIES
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.
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.
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
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.
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
- Local school divisions
- Community services
- Families or others
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.
& THE IMPLEMENTATION OF THE NEW LAWS
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.
Norma Szakal and