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Compendium of Residential Care and Assisted Living Regulations and Policy: 2015 Edition
INDIANA
Licensure Terms
Residential Care Facilities
General Approach
An Indiana residential care provider that desires to use the term “assisted living”
must file a disclosure form with the Family and Social Services Agency (FSSA) Division
of Aging. It is then considered a registered housing with services establishment. This is
not a certification or licensure process, but instead helps the FSSA to learn about the
number and types of facilities in Indiana. This type of residential setting provides three
meals per day and a number of additional services.
If a housing with services establishment wants to provide medication
administration and nursing care, it must be licensed by the Indiana State Department of
Health as a residential care facility (RCF) under the licensure category for health
facilities. The rules also require that RCF administrators be licensed by the Indiana
State Board of Health Facility Administrators.
However, an unlicensed housing with services establishment may contract with a
licensed home health agency to provide medication administration or nursing care,
regardless of whether the facility and the home health agency have common ownership;
provided, however, that residents are given the opportunity to contract with other home
health agencies at any time during their stay at the facility.
Assisted living services are available under the state’s Medicaid Aged and
Disabled (A&D) and Traumatic Brain Injury (TBI) 1915(c) Waiver programs designed to
provide options for alternative long-term care to individuals who meet nursing facility
level of care and whose needs can be met in a home-like environment. Providers of
Medicaid waiver assisted living services must be licensed as RCFs.
Adult Foster Care. The FSSA certifies adult family care homes (AFCHs) that serve
Medicaid-eligible residents under the A&D and TBI Waiver programs. Adult family care
includes the provision of personal care, homemaker, chore, attendant care and
companion services, and medication oversight, to the extent permitted under state law.
Providers may serve up to four residents who are elderly or have physical and/or
cognitive disabilities and who are not members of the provider’s or primary caregiver’s
family. Providers that serve only private pay residents are not required to be certified.
Regulatory provisions for AFCHs are not included in this profile but a link to the
provisions can found at the end.
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This profile includes summaries of selected regulatory provisions for licensed
RCFs. The complete regulations are online at the links provided at the end.
Definitions
Housing with services establishments provide room and board to at least five
residents and offer, or provide for a fee, at least one regularly scheduled health-related
service or at least two regularly scheduled supportive services, whether offered or
provided directly by the establishment or by another person arranged for by the
establishment.
Health-related services include home health services, attendant and personal care
services, professional nursing services, and distribution of medications. Unlicensed
housing with services establishments cannot provide medication administration but can
assist residents with administering their own medications. However, an unlicensed
establishment can contract with a licensed home health agency to provide medication
administration and other medical care and bill the resident for the service or include the
service cost in the monthly fee; or residents may choose to contract with licensed home
health agencies themselves.
Supportive services include help with personal laundry; handling or assisting with
personal funds; and arranging for medical services, health-related services, or social
services; but do not include making referrals, assisting a resident in contacting a service
provider the resident has chosen, or contacting a service provider in an emergency.
Residential care facilities are housing with services establishments that are
licensed to provide nursing care or administration of physician-prescribed medication.
Resident Agreements
Prior to admission, facilities must provide the resident or the resident’s
representative a copy of the contract between the resident and the facility. The contract
must provide information about a range of topics, including services to be provided in
the base rate; additional services available and their cost; the process for changing the
contract; the complaint resolution process; the facility’s retention, discharge, and referral
policies and procedures; and billing and payment policies and procedures.
Disclosure Provisions
Facilities must provide each resident with a copy of the annual disclosure
document that the facility files with the Division of Aging and must advise residents,
upon admission, of residents’ rights specified in Indiana law and regulation.
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The required disclosure form includes the name and address of the owner and
managing agent and a statement describing the facility’s licensure status as well as the
other information previously described under Resident Agreements.
Facilities that provide specialized care for individuals with Alzheimer’s disease or
dementia must prepare a disclosure statement on required topics that include: (1) the
facility’s mission or philosophy statement with regard to dementia care; (2) admission,
retention, transfer, and discharge criteria and processes; (3) the process for the
assessment, establishment, and implementation of a plan of Alzheimer’s or dementia
special care, including how and when changes are made to a plan of care; (4) the
positions and classifications of staff and the staff-to-patient ratio for each shift; (5) the
initial training or special education requirements of the staff and required continuing staff
education and in-service training; (6) the frequency and types of activities offered,
including family support programs; and (7) any other distinguishing features and
services of the Alzheimer’s and dementia special care unit (SCU).
This statement must be filed with the FSSA Division of Aging annually and made
available to anyone seeking information on services for individuals with dementia.
Admission and Retention Policy
Facilities may not admit or retain individuals who are medically unstable or require
24-hour-a-day comprehensive nursing care or comprehensive nursing oversight.
Residents must be discharged if they require comprehensive nursing care,
comprehensive nursing oversight, or rehabilitative therapies on a less than 24-hour-a-
day basis and have not contracted with an appropriately licensed provider to provide the
care, oversight, and therapies.
Additionally, unless the resident is medically stable and the facility can meet the
resident’s needs, residents must be discharged if they are a danger to self or others or
meet two of the following three criteria: (1) require total assistance with eating,
(2) require total assistance with toileting, and/or (3) require total assistance with
transferring.
Services
Services offered must meet residents’ needs regarding scope, frequency, and
preferences. A facility that retains appropriate professional staff may provide
comprehensive nursing care to residents needing care for a self-limiting condition,
notwithstanding the items listed under the admission and retention policy.
If administration of medications and/or nursing services are needed, a licensed
nurse must be involved in the determination and documentation of needed services.
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The administration of medications and the provision of nursing services must be
ordered by a physician and supervised by a licensed nurse on the premises or on call.
Nursing care may include, but is not limited to: (1) identifying responses to actual
or potential health conditions; (2) a nursing diagnosis; (3) executing a minor regimen
based upon a nursing diagnosis or as prescribed by a physician, physician’s assistant,
chiropractor, dentist, optometrist, podiatrist, or nurse practitioner; and (4) administering,
supervising, delegating, and evaluating nursing activities.
A minor regimen may include, but is not limited to: assistance with self-maintained
catheter care for a chronic condition; prophylactic and palliative skin care; routine
dressings of wounds that do not require packing or irrigation; general maintenance
ostomy care; routine blood glucose testing; bowel therapies; general maintenance care
in connection with braces, splints, and plaster casts; administration of subcutaneous
and intramuscular injections; and self-administered metered dose inhalers and
nebulizer/aerosol treatments.
The facility must provide activities programs appropriate to residents’ abilities and
interests. Scheduled transportation for community-based activities must be provided or
coordinated.
Service Planning
Prior to admission, the facility must evaluate prospective residents to determine if
they can be admitted. If admitted, the evaluation must be updated at least semi-annually
or when a significant change in condition occurs. Subsequent evaluations must
determine that the care a resident requires continues to be within the capability of the
facility. Based on the evaluation, the facility must identify the type, scope, and frequency
of services that will be provided, and the resident’s preferences regarding service
provision.
Providers of Medicaid assisted living services through a waiver program must
establish a negotiated risk plan with a resident if deemed appropriate and determined to
be necessary by a resident’s interdisciplinary team.
Third-Party Providers
A resident has the right to choose his or her own attending physician and providers
for on-site health care services, including home health, hospice, and personal care.
Medication Provisions
Medications may be administered under physician’s order by licensed nursing
personnel or qualified medication aides. Other treatments may be given by certified
nurse aides upon delegation by licensed nursing personnel except for injectable
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medications, which may be given only by licensed staff. The resident must be observed
for effects of medications and undesirable effects must be documented and the
resident’s physician notified.
Administration of medications means preparation and/or distribution of prescribed
medications. Administration does not include reminders, cues, and/or opening of
medication containers or assistance with eye drops, such as steadying the resident’s
hand, when requested by a resident.
Residents who self-medicate may keep and use prescription and non-prescription
medications in their unit as long as they are kept secure.
Food Service and Dietary Provisions
Facilities must provide three meals a day, 7 days a week, that provide a balanced
distribution of the daily nutritional requirements. Facilities must meet daily dietary
requirements and requests, with consideration of food allergies, reasonable religious,
ethnic, and personal preferences, and the temporary need for meals to be delivered to
the resident’s room. All modified diets must be prescribed by a physician.
Staffing Requirements
Type of Staff. Each facility must have one licensed administrator who is
responsible for overall administration. Administrators must have either a nursing facility
administrator’s license or a RCF administrator’s license. Those with the latter must
complete a specialized course in residential care administration approved by the
Indiana State Board of Health Facility Administrators prior to employment.
If 50 or more residents require nursing services and/or medication administration,
at least one nursing staff person (a registered nurse, licensed practical nurse, or
certified nurse aide) must be on staff at all times. Any unlicensed employee providing
more than limited assistance with activities of daily living must be either a certified
nursing assistant or a home health aide.
A consultant pharmacist must be employed or under contract. The facility must
designate an activities director who is a recreational therapist, an occupational therapist
or a certified occupational therapist assistant, or someone who will complete, within 1
year, a state-approved activities director training course. Facilities may employ dining
assistants who may only serve residents who do not have complicated eating problems,
which include, but are not limited to, the following: difficulty swallowing, recurrent lung
aspirations, or tube or parenteral/intravenous feedings.
Staff Ratios. As noted above, for 50 or more residents requiring nursing services
and/or medication administration, at least one nursing staff person must be on staff at
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all times, For every additional 50 residents, at least one additional awake nursing staff
person must be on-duty at all times.
No minimum ratios are specified for other staff. Staff must be sufficient in number,
qualifications, and training to meet residents’ 24-hour scheduled and unscheduled
needs. A minimum of one awake staff person with cardiopulmonary resuscitation and
first-aid certifications must be on-duty at all times.
Training Requirements
Administrators must complete 40 hours of continuing education every 2 years.
Prior to working independently, each employee must be given an orientation to the
facility by the supervisor, which includes:
• Instructions on the needs of the specialized populations served in the facility.
• A review of the facility’s policies and procedures.
• Instructions in first-aid, emergency procedures, and fire and disaster
preparedness, including evacuation procedures.
• A detailed review of the appropriate job description, with a demonstration of
equipment and procedures required of the specific position.
• A review of ethical considerations and confidentiality requirements in resident
care and records.
• A personal introduction to and instruction in the particular needs of each resident
to whom the employee will be providing care for direct care staff.
Ongoing training must cover several topics, including resident’s rights, prevention
and control of infection, fire safety and accident prevention, the needs of specialized
populations served, medication administration, and nursing care. Nursing personnel
must have at least 8 hours of training per calendar year and non-nursing personnel
must have at least 4 hours per calendar year.
Provisions for Apartments and Private Units
Providers of Medicaid waiver assisted living services must offer individual
residential units that include a bedroom, private bath, a substantial living area, and a
kitchenette that contains a refrigerator, food preparation area, a microwave, and access
to a stove top or oven. Fifty percent of units must have roll-in shower capability and
units must be wheelchair accessible. Apartments can be shared only by choice.
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Otherwise, for facilities licensed after April 1, 1997, each unit must have a private
toilet, sink, and tub or shower. Facilities licensed prior to April 1, 1997, must abide by
certain resident-to-bathtub/shower and resident-to-toilet/sink ratios as set forth in
regulation.
For facilities and additions to facilities for which construction plans are submitted
for approval after July 1, 1984, resident rooms must not contain more than four beds,
and one toilet and sink is required for every eight residents. At least one toilet and one
sink of the appropriate height for a resident seated in a wheelchair must be available for
each sex on each floor utilized by residents.
Bathing facilities for residents not served by bathing facilities in their room are
provided as follows: 1-22 residents, one bathtub or shower; 23-37 residents, two
bathtubs or showers; 38-52 residents, three bathtubs or showers; 53-67 residents, four
bathtubs or showers; 68-82 residents, five bathtubs or showers; and 83-97 residents,
six bathtubs or showers.
A resident has the right to share a room with his or her spouse when: (1) married
residents live in the same facility and both spouses consent to the arrangement; and
(2) a room is available for residents to share. The facility must have written policy and
procedures to address the circumstances in which persons of the opposite sex, other
than husband and wife, will be allowed to occupy a bedroom if such an arrangement is
agreeable to both.
Provisions for Serving Persons with Dementia
Dementia Care Staff. Facilities that are required to submit an Alzheimer’s and
dementia SCU disclosure form must designate a director.
Dementia Staff Training. The director of the Alzheimer’s and dementia SCU
must have a minimum of 12 hours of dementia-specific training within 3 months of initial
employment, and 6 hours annually thereafter to meet the needs and preferences of
cognitively impaired residents and to gain an understanding of the current standards of
care for persons with dementia.
Staff caring for residents in dementia-specific units must have a minimum of 6
hours of dementia-specific training within 6 months of hire and 3 hours annually
thereafter.
Dementia Facility Requirements. No provisions identified.
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Background Checks
The facility must not employ individuals who have: (1) been found guilty by a court
of law of abusing, neglecting, or mistreating residents or misappropriating residents’
property; or (2) had a finding entered into the state nurse aide registry concerning
abuse, neglect, mistreatment of residents, or misappropriation of their property. The
facility must report any knowledge it has of actions by a court of law against an
employee, which would indicate unfitness for service as a nurse aide or other facility
staff, to the state nurse aide registry or licensing authority.
An individual applying for an RCF administrator’s license must submit to a national
criminal history background check at his or her cost. Criminal history background
checks are not required for renewal applications.
Inspection and Monitoring
The Department of Health conducts a pre-licensure survey and then a licensure
renewal survey every 9-15 months.
Providers of Medicaid waiver assisted living services must permit the office of
Medicaid policy and planning, the Division of Aging, the Ombudsman, and other state
representatives to enter the facility without prior notification in order to: (1) monitor
compliance with relevant administrative rules; and (2) conduct complaint investigations,
including, but not limited to, observing and interviewing residents and accessing
residents’ records.
Public Financing
The Residential Care Assistance Program (RCAP) is a state-funded program that
provides financial assistance to eligible individuals residing in licensed RCFs and other
housing with services establishments that have an approved RCAP contract with the
Division of Aging. The program covers limited services for residents who are aged,
blind, mentally ill or disabled, low-income, and unable to live alone, but do not qualify for
nursing home care. RCAP funding can cover room, board, and laundry, as well as care
coordination provided on behalf of eligible individuals. An applicant for RCAP funding
must not meet Medicaid nursing facility level of care eligibility criteria or have income
and resources that exceed established Medicaid guidelines.
The state’s Medicaid A&D and TBI 1915(c) Waiver programs cover services--
called assisted living services--in licensed RCFs and also covers services provided in
AFCHs.
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Room and Board Policy
In 2014, the room and board rate for Medicaid-eligible residents was capped at the
federal Supplemental Security Income (SSI) payment of $721 less a $52 per month
personal needs allowance retained by the resident.
The state does not provide a supplement to the federal SSI payment and has not
set a policy on income supplementation by family members or other third parties.
Location of Licensing, Certification, or Other Requirements
Indiana Code, Title 12, Article 10, Chapter 5.5: Alzheimer’s and Dementia Special Care
Disclosure. [2014]
https://iga.in.gov/legislative/laws/2014/ic/titles/012/articles/010/chapters/5.5/
Indiana Code, Title 12, Article 10, Chapter 15: Filing Disclosure Documents for Housing With
Services Establishments. [2014]
https://iga.in.gov/legislative/laws/2014/ic/titles/012/articles/010/chapters/015/
Indiana Administrative Code, Title 405, Article 1: Medicaid Providers and Services. Office of the
Secretary of Family and Social Services. [October 23, 2013]
http://www.in.gov/legislative/iac/T04050/A00010.PDF
Indiana Administrative Code, Title 410, 16.2-5: Residential Care Health Facility Regulations.
Indiana State Department of Health, Division of Long Term Care. [2008]
http://www.inassistedliving.org/pdfs/2008/RCF_Rules.pdf
Indiana Administrative Code, Title 455, Article 3: Assisted Living Medicaid Waiver Services.
Division of Aging. [July 1, 2011]
http://www.in.gov/legislative/iac/iac_title?iact=455&iaca=3
Indiana State Department of Health. Application for a New Facility Residential Care Facility.
http://www.in.gov/isdh/files/Application_for_New_Facility_Residential_Care_Facility.pdf
Indiana State Department of Health website: information and contacts for Residential Care
Facility Licensing Program.
http://www.in.gov/isdh/20227.htm
Indiana Professional Licensing Agency website: Residential Care Administrator Application and
Instructions.
http://www.in.gov/pla/2952.htm
Indiana Family and Social Services Administration, Division of Aging: Approval Request for
Providers of Adult Family Care. [August 5, 2014]
https://secure.in.gov/fssa/files/AFC_Survey_Tool-2010.pdf
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Information Sources
Becky Koors
Assistant Director
Long-Term Care Operations
Division of Aging
Jim Leich
President/CEO
LeadingAge Indiana
Zachary I. Cattell
General Counsel
Director of Regulatory Affairs and Reimbursement Services
Indiana Health Care Association
and
Indiana Center for Assisted Living
COMPENDIUM OF RESIDENTIAL CARE AND ASSISTED
LIVING REGULATIONS AND POLICY: 2015 EDITION
Files Available for This Report
FULL REPORT
Executive Summary http://aspe.hhs.gov/execsum/compendium-residential-care-and-
assisted-living-regulations-and-policy-2015-edition-executive-
summary
HTML http://aspe.hhs.gov/basic-report/compendium-residential-care-and-
assisted-living-regulations-and-policy-2015-edition
PDF http://aspe.hhs.gov/pdf-report/compendium-residential-care-and-
assisted-living-regulations-and-policy-2015-edition
SEPARATE STATE PROFILES
[NOTE: These profiles are available in the full HTML and PDF versions, as well as each state
available as a separate PDF listed below.]
Alabama http://aspe.hhs.gov/pdf-report/compendium-residential-care-and-
assisted-living-regulations-and-policy-2015-edition-alabama-profile
Alaska http://aspe.hhs.gov/pdf-report/compendium-residential-care-and-
assisted-living-regulations-and-policy-2015-edition-alaska-profile
Arizona http://aspe.hhs.gov/pdf-report/compendium-residential-care-and-
assisted-living-regulations-and-policy-2015-edition-arizona-profile
Arkansas http://aspe.hhs.gov/pdf-report/compendium-residential-care-and-
assisted-living-regulations-and-policy-2015-edition-arkansas-profile
California http://aspe.hhs.gov/pdf-report/compendium-residential-care-and-
assisted-living-regulations-and-policy-2015-edition-california-profile
Colorado http://aspe.hhs.gov/pdf-report/compendium-residential-care-and-
assisted-living-regulations-and-policy-2015-edition-colorado-profile
Connecticut http://aspe.hhs.gov/pdf-report/compendium-residential-care-and-
assisted-living-regulations-and-policy-2015-edition-connecticut-profile
Delaware http://aspe.hhs.gov/pdf-report/compendium-residential-care-and-
assisted-living-regulations-and-policy-2015-edition-delaware-profile
District of Columbia http://aspe.hhs.gov/pdf-report/compendium-residential-care-and-
assisted-living-regulations-and-policy-2015-edition-district-columbia-
profile
Florida http://aspe.hhs.gov/pdf-report/compendium-residential-care-and-
assisted-living-regulations-and-policy-2015-edition-florida-profile
Georgia http://aspe.hhs.gov/pdf-report/compendium-residential-care-and-
assisted-living-regulations-and-policy-2015-edition-georgia-profile
Hawaii http://aspe.hhs.gov/pdf-report/compendium-residential-care-and-
assisted-living-regulations-and-policy-2015-edition-hawaii-profile
Idaho http://aspe.hhs.gov/pdf-report/compendium-residential-care-and-
assisted-living-regulations-and-policy-2015-edition-idaho-profile
Illinois http://aspe.hhs.gov/pdf-report/compendium-residential-care-and-
assisted-living-regulations-and-policy-2015-edition-illinois-profile
Indiana http://aspe.hhs.gov/pdf-report/compendium-residential-care-and-
assisted-living-regulations-and-policy-2015-edition-indiana-profile
Iowa http://aspe.hhs.gov/pdf-report/compendium-residential-care-and-
assisted-living-regulations-and-policy-2015-edition-iowa-profile
Kansas http://aspe.hhs.gov/pdf-report/compendium-residential-care-and-
assisted-living-regulations-and-policy-2015-edition-kansas-profile
Kentucky http://aspe.hhs.gov/pdf-report/compendium-residential-care-and-
assisted-living-regulations-and-policy-2015-edition-kentucky-profile
Louisiana http://aspe.hhs.gov/pdf-report/compendium-residential-care-and-
assisted-living-regulations-and-policy-2015-edition-louisiana-profile
Maine http://aspe.hhs.gov/pdf-report/compendium-residential-care-and-
assisted-living-regulations-and-policy-2015-edition-maine-profile
Maryland http://aspe.hhs.gov/pdf-report/compendium-residential-care-and-
assisted-living-regulations-and-policy-2015-edition-maryland-profile
Massachusetts http://aspe.hhs.gov/pdf-report/compendium-residential-care-and-
assisted-living-regulations-and-policy-2015-edition-massachusetts-
profile
Michigan http://aspe.hhs.gov/pdf-report/compendium-residential-care-and-
assisted-living-regulations-and-policy-2015-edition-michigan-profile
Minnesota http://aspe.hhs.gov/pdf-report/compendium-residential-care-and-
assisted-living-regulations-and-policy-2015-edition-minnesota-profile
Mississippi http://aspe.hhs.gov/pdf-report/compendium-residential-care-and-
assisted-living-regulations-and-policy-2015-edition-mississippi-profile
Missouri http://aspe.hhs.gov/pdf-report/compendium-residential-care-and-
assisted-living-regulations-and-policy-2015-edition-missouri-profile
Montana http://aspe.hhs.gov/pdf-report/compendium-residential-care-and-
assisted-living-regulations-and-policy-2015-edition-montana-profile
Nebraska http://aspe.hhs.gov/pdf-report/compendium-residential-care-and-
assisted-living-regulations-and-policy-2015-edition-nebraska-profile
Nevada http://aspe.hhs.gov/pdf-report/compendium-residential-care-and-
assisted-living-regulations-and-policy-2015-edition-nevada-profile
New Hampshire http://aspe.hhs.gov/pdf-report/compendium-residential-care-and-
assisted-living-regulations-and-policy-2015-edition-new-hampshire-
profile
New Jersey http://aspe.hhs.gov/pdf-report/compendium-residential-care-and-
assisted-living-regulations-and-policy-2015-edition-new-jersey-profile
New Mexico http://aspe.hhs.gov/pdf-report/compendium-residential-care-and-
assisted-living-regulations-and-policy-2015-edition-new-mexico-profile
New York http://aspe.hhs.gov/pdf-report/compendium-residential-care-and-
assisted-living-regulations-and-policy-2015-edition-new-york-profile
North Carolina http://aspe.hhs.gov/pdf-report/compendium-residential-care-and-
assisted-living-regulations-and-policy-2015-edition-north-carolina-
profile
North Dakota http://aspe.hhs.gov/pdf-report/compendium-residential-care-and-
assisted-living-regulations-and-policy-2015-edition-north-dakota-
profile
Ohio http://aspe.hhs.gov/pdf-report/compendium-residential-care-and-
assisted-living-regulations-and-policy-2015-edition-ohio-profile
Oklahoma http://aspe.hhs.gov/pdf-report/compendium-residential-care-and-
assisted-living-regulations-and-policy-2015-edition-oklahoma-profile
Oregon http://aspe.hhs.gov/pdf-report/compendium-residential-care-and-
assisted-living-regulations-and-policy-2015-edition-oregon-profile
Pennsylvania http://aspe.hhs.gov/pdf-report/compendium-residential-care-and-
assisted-living-regulations-and-policy-2015-edition-pennsylvania-
profile
Rhode Island http://aspe.hhs.gov/pdf-report/compendium-residential-care-and-
assisted-living-regulations-and-policy-2015-edition-rhode-island-
profile
South Carolina http://aspe.hhs.gov/pdf-report/compendium-residential-care-and-
assisted-living-regulations-and-policy-2015-edition-south-carolina-
profile
South Dakota http://aspe.hhs.gov/pdf-report/compendium-residential-care-and-
assisted-living-regulations-and-policy-2015-edition-south-dakota-
profile
Tennessee http://aspe.hhs.gov/pdf-report/compendium-residential-care-and-
assisted-living-regulations-and-policy-2015-edition-tennessee-profile
Texas http://aspe.hhs.gov/pdf-report/compendium-residential-care-and-
assisted-living-regulations-and-policy-2015-edition-texas-profile
Utah http://aspe.hhs.gov/pdf-report/compendium-residential-care-and-
assisted-living-regulations-and-policy-2015-edition-utah-profile
Vermont http://aspe.hhs.gov/pdf-report/compendium-residential-care-and-
assisted-living-regulations-and-policy-2015-edition-vermont-profile
Virginia http://aspe.hhs.gov/pdf-report/compendium-residential-care-and-
assisted-living-regulations-and-policy-2015-edition-virginia-profile
Washington http://aspe.hhs.gov/pdf-report/compendium-residential-care-and-
assisted-living-regulations-and-policy-2015-edition-washington-profile
West Virginia http://aspe.hhs.gov/pdf-report/compendium-residential-care-and-
assisted-living-regulations-and-policy-2015-edition-west-virginia-
profile
Wisconsin http://aspe.hhs.gov/pdf-report/compendium-residential-care-and-
assisted-living-regulations-and-policy-2015-edition-wisconsin-profile
Wyoming http://aspe.hhs.gov/pdf-report/compendium-residential-care-and-
assisted-living-regulations-and-policy-2015-edition-wyoming-profile
U.S. DEPARTMENT OF HOUSING A ND URBAN DEVELOPMENT
OFFICE OF FAIR HOUSING AND EQUAL OPPORTUNITY
U.S. DEPARTMENT OF JUSTICE
CIVIL RIGHTS DIVISION
Washington, D.C.
November 10, 2016
JOINT STATEMENT OF THE DEPARTMENT OF HOUSING AND URBAN
DEVELOPMENT AND THE DEPARTMENT OF JUSTICE
STATE AND LOCAL LAND USE LAWS AND PRACTICES AND THE APPLICATION
OF THE FAIR HOUSING ACT
INTRODUCTION
The Department of Justice (“DOJ”) and the Department of Housing and Urban
Development (“HUD”) are jointly responsible for enforcing the Federal Fair Housing Act (“the
Act”),1 which prohibits discrimination in housing on the basis of race, color, religion, sex,
disability, familial status (children under 18 living with a parent or guardian), or national origin.2
The Act prohibits housing-related policies and practices that exclude or otherwise discriminate
against individuals because of protected characteristics.
The regulation of land use and zoning is traditionally reserved to state and local
governments, except to the extent that it conflicts with requirements imposed by the Fair
Housing Act or other federal laws. This Joint Statement provides an overview of the Fair
Housing Act’s requirements relating to state and local land use practices and zoning laws,
including conduct related to group homes. It updates and expands upon DOJ’s and HUD’s Joint
1 The Fair Housing Act is codified at 42 U.S.C. §§ 3601–19.
2 The Act uses the term “handicap” instead of “disability.” Both terms have the same legal meaning. See Bragdon
v. Abbott, 524 U.S. 624, 631 (1998) (noting that the definition of “disability” in the Americans with Disabilities Act
1
Statement on Group Homes, Local Land Use, and the Fair Housing Act, issued on August 18,
1999. The first section of the Joint Statement, Questions 1–6, describes generally the Act’s
requirements as they pertain to land use and zoning. The second and third sections, Questions 7–
25, discuss more specifically how the Act applies to land use and zoning laws affecting housing
for persons with disabilities, including guidance on regulating group homes and the requirement
to provide reasonable accommodations. The fourth section, Questions 26–27, addresses HUD’s
and DOJ’s enforcement of the Act in the land use and zoning context.
This Joint Statement focuses on the Fair Housing Act, not on other federal civil rights
laws that prohibit state and local governments from adopting or implementing land use and
zoning practices that discriminate based on a protected characteristic, such as Title II of the
Americans with Disabilities Act (“ADA”),3 Section 504 of the Rehabilitation Act of 1973
(“Section 504”),4 and Title VI of the Civil Rights Act of 1964.5 In addition, the Joint Statement
does not address a state or local government’s duty to affirmatively further fair housing, even
though state and local governments that receive HUD assistance are subject to this duty. For
additional information provided by DOJ and HUD regarding these issues, see the list of
resources provided in the answer to Question 27.
Questions and Answers on the Fair Housing Act and
State and Local Land Use Laws and Zoning
1. How does the Fair Housing Act apply to state and local land use and zoning?
The Fair Housing Act prohibits a broad range of housing practices that discriminate
against individuals on the basis of race, color, religion, sex, disability, familial status, or national
origin (commonly referred to as protected characteristics). As established by the Supremacy
Clause of the U.S. Constitution, federal laws such as the Fair Housing Act take precedence over
conflicting state and local laws. The Fair Housing Act thus prohibits state and local land use and
zoning laws, policies, and practices that discriminate based on a characteristic protected under
the Act. Prohibited practices as defined in the Act include making unavailable or denying
housing because of a protected characteristic. Housing includes not only buildings intended for
occupancy as residences, but also vacant land that may be developed into residences.
is drawn almost verbatim “from the definition of ‘handicap’ contained in the Fair Housing Amendments Act of
1988”). This document uses the term “disability,” which is more generally accepted.
3 42 U.S.C. §12132.
4 29 U.S.C. § 794.
5 42 U.S.C. § 2000d.
2
2. What types of land use and zoning laws or practices violate the Fair Housing Act?
Examples of state and local land use and zoning laws or practices that may violate the
Act include:
Prohibiting or restricting the development of housing based on the belief that the
residents will be members of a particular protected class, such as race, disability,
or familial status, by, for example, placing a moratorium on the development of
multifamily housing because of concerns that the residents will include members
of a particular protected class.
Imposing restrictions or additional conditions on group housing for persons with
disabilities that are not imposed on families or other groups of unrelated
individuals, by, for example, requiring an occupancy permit for persons with
disabilities to live in a single-family home while not requiring a permit for other
residents of single-family homes.
Imposing restrictions on housing because of alleged public safety concerns that
are based on stereotypes about the residents’ or anticipated residents’ membership
in a protected class, by, for example, requiring a proposed development to provide
additional security measures based on a belief that persons of a particular
protected class are more likely to engage in criminal activity.
Enforcing otherwise neutral laws or policies differently because of the residents’
protected characteristics, by, for example, citing individuals who are members of
a particular protected class for violating code requirements for property upkeep
while not citing other residents for similar violations.
Refusing to provide reasonable accommodations to land use or zoning policies
when such accommodations may be necessary to allow persons with disabilities
to have an equal opportunity to use and enjoy the housing, by, for example,
denying a request to modify a setback requirement so an accessible sidewalk or
ramp can be provided for one or more persons with mobility disabilities.
3. When does a land use or zoning practice constitute intentional discrimination in
violation of the Fair Housing Act?
Intentional discrimination is also referred to as disparate treatment, meaning that the
action treats a person or group of persons differently because of race, color, religion, sex,
disability, familial status, or national origin. A land use or zoning practice may be intentionally
discriminatory even if there is no personal bias or animus on the part of individual government
officials. For example, municipal zoning practices or decisions that reflect acquiescence to
community bias may be intentionally discriminatory, even if the officials themselves do not
personally share such bias. (See Q&A 5.) Intentional discrimination does not require that the
3
decision-makers were hostile toward members of a particular protected class. Decisions
motivated by a purported desire to benefit a particular group can also violate the Act if they
result in differential treatment because of a protected characteristic.
A land use or zoning practice may be discriminatory on its face. For example, a law that
requires persons with disabilities to request permits to live in single-family zones while not
requiring persons without disabilities to request such permits violates the Act because it treats
persons with disabilities differently based on their disability. Even a law that is seemingly
neutral will still violate the Act if enacted with discriminatory intent. In that instance, the
analysis of whether there is intentional discrimination will be based on a variety of factors, all of
which need not be satisfied. These factors include, but are not limited to: (1) the “impact” of the
municipal practice, such as whether an ordinance disproportionately impacts minority residents
compared to white residents or whether the practice perpetuates segregation in a neighborhood or
particular geographic area; (2) the “historical background” of the action, such as whether there is
a history of segregation or discriminatory conduct by the municipality; (3) the “specific sequence
of events,” such as whether the city adopted an ordinance or took action only after significant,
racially-motivated community opposition to a housing development or changed course after
learning that a development would include non-white residents; (4) departures from the “normal
procedural sequence,” such as whether a municipality deviated from normal application or
zoning requirements; (5) “substantive departures,” such as whether the factors usually considered
important suggest that a state or local government should have reached a different result; and (6)
the “legislative or administrative history,” such as any statements by members of the state or
local decision-making body.6
4. Can state and local land use and zoning laws or practices violate the Fair Housing
Act if the state or locality did not intend to discriminate against persons on a
prohibited basis?
Yes. Even absent a discriminatory intent, state or local governments may be liable under
the Act for any land use or zoning law or practice that has an unjustified discriminatory effect
because of a protected characteristic. In 2015, the United States Supreme Court affirmed this
interpretation of the Act in Texas Department of Housing and Community Affairs v. Inclusive
Communities Project, Inc.7 The Court stated that “[t]hese unlawful practices include zoning
laws and other housing restrictions that function unfairly to exclude minorities from certain
neighborhoods without any sufficient justification.”8
6 Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265–68 (1977).
7 ___ U.S. ___, 135 S. Ct. 2507 (2015).
8 Id. at 2521–22.
4
A land use or zoning practice results in a discriminatory effect if it caused or predictably
will cause a disparate impact on a group of persons or if it creates, increases, reinforces, or
perpetuates segregated housing patterns because of a protected characteristic. A state or local
government still has the opportunity to show that the practice is necessary to achieve one or more
of its substantial, legitimate, nondiscriminatory interests. These interests must be supported by
evidence and may not be hypothetical or speculative. If these interests could not be served by
another practice that has a less discriminatory effect, then the practice does not violate the Act.
The standard for evaluating housing-related practices with a discriminatory effect are set forth in
HUD’s Discriminatory Effects Rule, 24 C.F.R § 100.500.
Examples of land use practices that violate the Fair Housing Act under a discriminatory
effects standard include minimum floor space or lot size requirements that increase the size and
cost of housing if such an increase has the effect of excluding persons from a locality or
neighborhood because of their membership in a protected class, without a legally sufficient
justification. Similarly, prohibiting low-income or multifamily housing may have a
discriminatory effect on persons because of their membership in a protected class and, if so,
would violate the Act absent a legally sufficient justification.
5. Does a state or local government violate the Fair Housing Act if it considers the
fears or prejudices of community members when enacting or applying its zoning or
land use laws respecting housing?
When enacting or applying zoning or land use laws, state and local governments may not
act because of the fears, prejudices, stereotypes, or unsubstantiated assumptions that community
members may have about current or prospective residents because of the residents’ protected
characteristics. Doing so violates the Act, even if the officials themselves do not personally
share such bias. For example, a city may not deny zoning approval for a low-income housing
development that meets all zoning and land use requirements because the development may
house residents of a particular protected class or classes whose presence, the community fears,
will increase crime and lower property values in the surrounding neighborhood. Similarly, a
local government may not block a group home or deny a requested reasonable accommodation in
response to neighbors’ stereotypical fears or prejudices about persons with disabilities or a
particular type of disability. Of course, a city council or zoning board is not bound by everything
that is said by every person who speaks at a public hearing. It is the record as a whole that will
be determinative.
5
6. Can state and local governments violate the Fair Housing Act if they adopt or
implement restrictions against children?
Yes. State and local governments may not impose restrictions on where families with
children may reside unless the restrictions are consistent with the “housing for older persons”
exemption of the Act. The most common types of housing for older persons that may qualify for
this exemption are: (1) housing intended for, and solely occupied by, persons 62 years of age or
older; and (2) housing in which 80% of the occupied units have at least one person who is 55
years of age or older that publishes and adheres to policies and procedures demonstrating the
intent to house older persons. These types of housing must meet all requirements of the
exemption, including complying with HUD regulations applicable to such housing, such as
verification procedures regarding the age of the occupants. A state or local government that
zones an area to exclude families with children under 18 years of age must continually ensure
that housing in that zone meets all requirements of the exemption. If all of the housing in that
zone does not continue to meet all such requirements, that state or local government violates the
Act.
Questions and Answers on the Fair Housing Act and
Local Land Use and Zoning Regulation of Group Homes
7. Who qualifies as a person with a disability under the Fair Housing Act?
The Fair Housing Act defines a person with a disability to include (1) individuals with a
physical or mental impairment that substantially limits one or more major life activities; (2)
individuals who are regarded as having such an impairment; and (3) individuals with a record of
such an impairment.
The term “physical or mental impairment” includes, but is not limited to, diseases and
conditions such as orthopedic, visual, speech and hearing impairments, cerebral palsy, autism,
epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, HIV infection,
developmental disabilities, mental illness, drug addiction (other than addiction caused by current,
illegal use of a controlled substance), and alcoholism.
The term “major life activity” includes activities such as seeing, hearing, walking
breathing, performing manual tasks, caring for one’s self, learning, speaking, and working. This
list of major life activities is not exhaustive.
Being regarded as having a disability means that the individual is treated as if he or she
has a disability even though the individual may not have an impairment or may not have an
impairment that substantially limits one or more major life activities. For example, if a landlord
6
refuses to rent to a person because the landlord believes the prospective tenant has a disability,
then the landlord violates the Act’s prohibition on discrimination on the basis of disability, even
if the prospective tenant does not actually have a physical or mental impairment that
substantially limits one or more major life activities.
Having a record of a disability means the individual has a history of, or has been
misclassified as having, a mental or physical impairment that substantially limits one or more
major life activities.
8. What is a group home within the meaning of the Fair Housing Act?
The term “group home” does not have a specific legal meaning; land use and zoning
officials and the courts, however, have referred to some residences for persons with disabilities
as group homes. The Fair Housing Act prohibits discrimination on the basis of disability, and
persons with disabilities have the same Fair Housing Act protections whether or not their
housing is considered a group home. A household where two or more persons with disabilities
choose to live together, as a matter of association, may not be subjected to requirements or
conditions that are not imposed on households consisting of persons without disabilities.
In this Statement, the term “group home” refers to a dwelling that is or will be occupied
by unrelated persons with disabilities. Sometimes group homes serve individuals with a
particular type of disability, and sometimes they serve individuals with a variety of disabilities.
Some group homes provide residents with in-home support services of varying types, while
others do not. The provision of support services is not required for a group home to be protected
under the Fair Housing Act. Group homes, as discussed in this Statement, may be opened by
individuals or by organizations, both for-profit and not-for-profit. Sometimes it is the group
home operator or developer, rather than the individuals who live or are expected to live in the
home, who interacts with a state or local government agency about developing or operating the
group home, and sometimes there is no interaction among residents or operators and state or
local governments.
In this Statement, the term “group home” includes homes occupied by persons in
recovery from alcohol or substance abuse, who are persons with disabilities under the Act.
Although a group home for persons in recovery may commonly be called a “sober home,” the
term does not have a specific legal meaning, and the Act treats persons with disabilities who
reside in such homes no differently than persons with disabilities who reside in other types of
group homes. Like other group homes, homes for persons in recovery are sometimes operated
by individuals or organizations, both for-profit and not-for-profit, and support services or
supervision are sometimes, but not always, provided. The Act does not require a person who
resides in a home for persons in recovery to have participated in or be currently participating in a
7
substance abuse treatment program to be considered a person with a disability. The fact that a
resident of a group home may currently be illegally using a controlled substance does not deprive
the other residents of the protection of the Fair Housing Act.
9. In what ways does the Fair Housing Act apply to group homes?
The Fair Housing Act prohibits discrimination on the basis of disability, and persons with
disabilities have the same Fair Housing Act protections whether or not their housing is
considered a group home. State and local governments may not discriminate against persons
with disabilities who live in group homes. Persons with disabilities who live in or seek to live in
group homes are sometimes subjected to unlawful discrimination in a number of ways, including
those discussed in the preceding Section of this Joint Statement. Discrimination may be
intentional; for example, a locality might pass an ordinance prohibiting group homes in single-
family neighborhoods or prohibiting group homes for persons with certain disabilities. These
ordinances are facially discriminatory, in violation of the Act. In addition, as discussed more
fully in Q&A 10 below, a state or local government may violate the Act by refusing to grant a
reasonable accommodation to its zoning or land use ordinance when the requested
accommodation may be necessary for persons with disabilities to have an equal opportunity to
use and enjoy a dwelling. For example, if a locality refuses to waive an ordinance that limits the
number of unrelated persons who may live in a single-family home where such a waiver may be
necessary for persons with disabilities to have an equal opportunity to use and enjoy a dwelling,
the locality violates the Act unless the locality can prove that the waiver would impose an undue
financial and administrative burden on the local government or fundamentally alter the essential
nature of the locality’s zoning scheme. Furthermore, a state or local government may violate the
Act by enacting an ordinance that has an unjustified discriminatory effect on persons with
disabilities who seek to live in a group home in the community. Unlawful actions concerning
group homes are discussed in more detail throughout this Statement.
10. What is a reasonable accommodation under the Fair Housing Act?
The Fair Housing Act makes it unlawful to refuse to make “reasonable accommodations”
to rules, policies, practices, or services, when such accommodations may be necessary to afford
persons with disabilities an equal opportunity to use and enjoy a dwelling. A “reasonable
accommodation” is a change, exception, or adjustment to a rule, policy, practice, or service that
may be necessary for a person with a disability to have an equal opportunity to use and enjoy a
dwelling, including public and common use spaces. Since rules, policies, practices, and services
may have a different effect on persons with disabilities than on other persons, treating persons
with disabilities exactly the same as others may sometimes deny them an equal opportunity to
use and enjoy a dwelling.
8
Even if a zoning ordinance imposes on group homes the same restrictions that it imposes
on housing for other groups of unrelated persons, a local government may be required, in
individual cases and when requested to do so, to grant a reasonable accommodation to a group
home for persons with disabilities. What constitutes a reasonable accommodation is a case-by-
case determination based on an individualized assessment. This topic is discussed in detail in
Q&As 20–25 and in the HUD/DOJ Joint Statement on Reasonable Accommodations under the
Fair Housing Act.
11. Does the Fair Housing Act protect persons with disabilities who pose a “direct
threat” to others?
The Act does not allow for the exclusion of individuals based upon fear, speculation, or
stereotype about a particular disability or persons with disabilities in general. Nevertheless, the
Act does not protect an individual whose tenancy would constitute a “direct threat” to the health
or safety of other individuals or whose tenancy would result in substantial physical damage to
the property of others unless the threat or risk to property can be eliminated or significantly
reduced by reasonable accommodation. A determination that an individual poses a direct threat
must rely on an individualized assessment that is based on reliable objective evidence (for
example, current conduct or a recent history of overt acts). The assessment must consider: (1)
the nature, duration, and severity of the risk of injury; (2) the probability that injury will actually
occur; and (3) whether there are any reasonable accommodations that will eliminate or
significantly reduce the direct threat. See Q&A 10 for a general discussion of reasonable
accommodations. Consequently, in evaluating an individual’s recent history of overt acts, a state
or local government must take into account whether the individual has received intervening
treatment or medication that has eliminated or significantly reduced the direct threat (in other
words, significant risk of substantial harm). In such a situation, the state or local government
may request that the individual show how the circumstances have changed so that he or she no
longer poses a direct threat. Any such request must be reasonable and limited to information
necessary to assess whether circumstances have changed. Additionally, in such a situation, a
state or local government may obtain satisfactory and reasonable assurances that the individual
will not pose a direct threat during the tenancy. The state or local government must have
reliable, objective evidence that the tenancy of a person with a disability poses a direct threat
before excluding him or her from housing on that basis, and, in making that assessment, the state
or local government may not ignore evidence showing that the individual’s tenancy would no
longer pose a direct threat. Moreover, the fact that one individual may pose a direct threat does
not mean that another individual with the same disability or other individuals in a group home
may be denied housing.
9
12. Can a state or local government enact laws that specifically limit group homes for
individuals with specific types of disabilities?
No. Just as it would be illegal to enact a law for the purpose of excluding or limiting
group homes for individuals with disabilities, it is illegal under the Act for local land use and
zoning laws to exclude or limit group homes for individuals with specific types of disabilities.
For example, a government may not limit group homes for persons with mental illness to certain
neighborhoods. The fact that the state or local government complies with the Act with regard to
group homes for persons with some types of disabilities will not justify discrimination against
individuals with another type of disability, such as mental illness.
13. Can a state or local government limit the number of individuals who reside in a
group home in a residential neighborhood?
Neutral laws that govern groups of unrelated persons who live together do not violate the
Act so long as (1) those laws do not intentionally discriminate against persons on the basis of
disability (or other protected class), (2) those laws do not have an unjustified discriminatory
effect on the basis of disability (or other protected class), and (3) state and local governments
make reasonable accommodations when such accommodations may be necessary for a person
with a disability to have an equal opportunity to use and enjoy a dwelling.
Local zoning and land use laws that treat groups of unrelated persons with disabilities
less favorably than similar groups of unrelated persons without disabilities violate the Fair
Housing Act. For example, suppose a city’s zoning ordinance defines a “family” to include up to
a certain number of unrelated persons living together as a household unit, and gives such a group
of unrelated persons the right to live in any zoning district without special permission from the
city. If that ordinance also prohibits a group home having the same number of persons with
disabilities in a certain district or requires it to seek a use permit, the ordinance would violate the
Fair Housing Act. The ordinance violates the Act because it treats persons with disabilities less
favorably than families and unrelated persons without disabilities.
A local government may generally restrict the ability of groups of unrelated persons to
live together without violating the Act as long as the restrictions are imposed on all such groups,
including a group defined as a family. Thus, if the definition of a family includes up to a certain
number of unrelated individuals, an ordinance would not, on its face, violate the Act if a group
home for persons with disabilities with more than the permitted number for a family were not
allowed to locate in a single-family-zoned neighborhood because any group of unrelated people
without disabilities of that number would also be disallowed. A facially neutral ordinance,
however, still may violate the Act if it is intentionally discriminatory (that is, enacted with
discriminatory intent or applied in a discriminatory manner), or if it has an unjustified
10
discriminatory effect on persons with disabilities. For example, an ordinance that limits the
number of unrelated persons who may constitute a family may violate the Act if it is enacted for
the purpose of limiting the number of persons with disabilities who may live in a group home, or
if it has the unjustified discriminatory effect of excluding or limiting group homes in the
jurisdiction. Governments may also violate the Act if they enforce such restrictions more strictly
against group homes than against groups of the same number of unrelated persons without
disabilities who live together in housing. In addition, as discussed in detail below, because the
Act prohibits the denial of reasonable accommodations to rules and policies for persons with
disabilities, a group home that provides housing for a number of persons with disabilities that
exceeds the number allowed under the family definition has the right to seek an exception or
waiver. If the criteria for a reasonable accommodation are met, the permit must be given in that
instance, but the ordinance would not be invalid.9
14. How does the Supreme Court’s ruling in Olmstead apply to the Fair Housing Act?
In Olmstead v. L.C.,10 the Supreme Court ruled that the Americans with Disabilities Act
(ADA) prohibits the unjustified segregation of persons with disabilities in institutional settings
where necessary services could reasonably be provided in integrated, community-based settings.
An integrated setting is one that enables individuals with disabilities to live and interact with
individuals without disabilities to the fullest extent possible. By contrast, a segregated setting
includes congregate settings populated exclusively or primarily by individuals with disabilities.
Although Olmstead did not interpret the Fair Housing Act, the objectives of the Fair Housing Act
and the ADA, as interpreted in Olmstead, are consistent. The Fair Housing Act ensures that
persons with disabilities have an equal opportunity to choose the housing where they wish to
live. The ADA and Olmstead ensure that persons with disabilities also have the option to live
and receive services in the most integrated setting appropriate to their needs. The integration
mandate of the ADA and Olmstead can be implemented without impairing the rights protected
by the Fair Housing Act. For example, state and local governments that provide or fund housing,
health care, or support services must comply with the integration mandate by providing these
programs, services, and activities in the most integrated setting appropriate to the needs of
individuals with disabilities. State and local governments may comply with this requirement by
adopting standards for the housing, health care, or support services they provide or fund that are
reasonable, individualized, and specifically tailored to enable individuals with disabilities to live
and interact with individuals without disabilities to the fullest extent possible. Local
governments should be aware that ordinances and policies that impose additional restrictions on
housing or residential services for persons with disabilities that are not imposed on housing or
9 Laws that limit the number of occupants per unit do not violate the Act as long as they are reasonable, are applied
to all occupants, and do not operate to discriminate on the basis of disability, familial status, or other characteristics
protected by the Act.
10 527 U.S. 581 (1999).
11
residential services for persons without disabilities are likely to violate the Act. In addition, a
locality would violate the Act and the integration mandate of the ADA and Olmstead if it
required group homes to be concentrated in certain areas of the jurisdiction by, for example,
restricting them from being located in other areas.
15. Can a state or local government impose spacing requirements on the location of
group homes for persons with disabilities?
A “spacing” or “dispersal” requirement generally refers to a requirement that a group
home for persons with disabilities must not be located within a specific distance of another group
home. Sometimes a spacing requirement is designed so it applies only to group homes and
sometimes a spacing requirement is framed more generally and applies to group homes and other
types of uses such as boarding houses, student housing, or even certain types of businesses. In a
community where a certain number of unrelated persons are permitted by local ordinance to
reside together in a home, it would violate the Act for the local ordinance to impose a spacing
requirement on group homes that do not exceed that permitted number of residents because the
spacing requirement would be a condition imposed on persons with disabilities that is not
imposed on persons without disabilities. In situations where a group home seeks a reasonable
accommodation to exceed the number of unrelated persons who are permitted by local ordinance
to reside together, the Fair Housing Act does not prevent state or local governments from taking
into account concerns about the over-concentration of group homes that are located in close
proximity to each other. Sometimes compliance with the integration mandate of the ADA and
Olmstead requires government agencies responsible for licensing or providing housing for
persons with disabilities to consider the location of other group homes when determining what
housing will best meet the needs of the persons being served. Some courts, however, have found
that spacing requirements violate the Fair Housing Act because they deny persons with
disabilities an equal opportunity to choose where they will live. Because an across-the-board
spacing requirement may discriminate against persons with disabilities in some residential areas,
any standards that state or local governments adopt should evaluate the location of group homes
for persons with disabilities on a case-by-case basis.
Where a jurisdiction has imposed a spacing requirement on the location of group homes
for persons with disabilities, courts may analyze whether the requirement violates the Act under
an intent, effects, or reasonable accommodation theory. In cases alleging intentional
discrimination, courts look to a number of factors, including the effect of the requirement on
housing for persons with disabilities; the jurisdiction’s intent behind the spacing requirement; the
existence, size, and location of group homes in a given area; and whether there are methods other
than a spacing requirement for accomplishing the jurisdiction’s stated purpose. A spacing
requirement enacted with discriminatory intent, such as for the purpose of appeasing neighbors’
stereotypical fears about living near persons with disabilities, violates the Act. Further, a neutral
12
spacing requirement that applies to all housing for groups of unrelated persons may have an
unjustified discriminatory effect on persons with disabilities, thus violating the Act. Jurisdictions
must also consider, in compliance with the Act, requests for reasonable accommodations to any
spacing requirements.
16. Can a state or local government impose health and safety regulations on group
home operators?
Operators of group homes for persons with disabilities are subject to applicable state and
local regulations addressing health and safety concerns unless those regulations are inconsistent
with the Fair Housing Act or other federal law. Licensing and other regulatory requirements that
may apply to some group homes must also be consistent with the Fair Housing Act. Such
regulations must not be based on stereotypes about persons with disabilities or specific types of
disabilities. State or local zoning and land use ordinances may not, consistent with the Fair
Housing Act, require individuals with disabilities to receive medical, support, or other services or
supervision that they do not need or want as a condition for allowing a group home to operate.
State and local governments’ enforcement of neutral requirements regarding safety, licensing,
and other regulatory requirements governing group homes do not violate the Fair Housing Act so
long as the ordinances are enforced in a neutral manner, they do not specifically target group
homes, and they do not have an unjustified discriminatory effect on persons with disabilities who
wish to reside in group homes.
Governments must also consider requests for reasonable accommodations to licensing
and regulatory requirements and procedures, and grant them where they may be necessary to
afford individuals with disabilities an equal opportunity to use and enjoy a dwelling, as required
by the Act.
17. Can a state or local government address suspected criminal activity or fraud and
abuse at group homes for persons with disabilities?
The Fair Housing Act does not prevent state and local governments from taking
nondiscriminatory action in response to criminal activity, insurance fraud, Medicaid fraud,
neglect or abuse of residents, or other illegal conduct occurring at group homes, including
reporting complaints to the appropriate state or federal regulatory agency. States and localities
must ensure that actions to enforce criminal or other laws are not taken to target group homes
and are applied equally, regardless of whether the residents of housing are persons with
disabilities. For example, persons with disabilities residing in group homes are entitled to the
same constitutional protections against unreasonable search and seizure as those without
disabilities.
13
18. Does the Fair Housing Act permit a state or local government to implement
strategies to integrate group homes for persons with disabilities in particular
neighborhoods where they are not currently located?
Yes. Some strategies a state or local government could use to further the integration of
group housing for persons with disabilities, consistent with the Act, include affirmative
marketing or offering incentives. For example, jurisdictions may engage in affirmative
marketing or offer variances to providers of housing for persons with disabilities to locate future
homes in neighborhoods where group homes for persons with disabilities are not currently
located. But jurisdictions may not offer incentives for a discriminatory purpose or that have an
unjustified discriminatory effect because of a protected characteristic.
19. Can a local government consider the fears or prejudices of neighbors in deciding
whether a group home can be located in a particular neighborhood?
In the same way a local government would violate the law if it rejected low-income
housing in a community because of neighbors’ fears that such housing would be occupied by
racial minorities (see Q&A 5), a local government violates the law if it blocks a group home or
denies a reasonable accommodation request because of neighbors’ stereotypical fears or
prejudices about persons with disabilities. This is so even if the individual government decision-
makers themselves do not have biases against persons with disabilities.
Not all community opposition to requests by group homes is necessarily discriminatory.
For example, when a group home seeks a reasonable accommodation to operate in an area and
the area has limited on-street parking to serve existing residents, it is not a violation of the Fair
Housing Act for neighbors and local government officials to raise concerns that the group home
may create more demand for on-street parking than would a typical family and to ask the
provider to respond. A valid unaddressed concern about inadequate parking facilities could
justify denying the requested accommodation, if a similar dwelling that is not a group home or
similarly situated use would ordinarily be denied a permit because of such parking concerns. If,
however, the group home shows that the home will not create a need for more parking spaces
than other dwellings or similarly-situated uses located nearby, or submits a plan to provide any
needed off-street parking, then parking concerns would not support a decision to deny the home
a permit.
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Questions and Answers on the Fair Housing Act and
Reasonable Accommodation Requests to Local Zoning and Land Use Laws
20. When does a state or local government violate the Fair Housing Act by failing to
grant a request for a reasonable accommodation?
A state or local government violates the Fair Housing Act by failing to grant a reasonable
accommodation request if (1) the persons requesting the accommodation or, in the case of a
group home, persons residing in or expected to reside in the group home are persons with a
disability under the Act; (2) the state or local government knows or should reasonably be
expected to know of their disabilities; (3) an accommodation in the land use or zoning ordinance
or other rules, policies, practices, or services of the state or locality was requested by or on behalf
of persons with disabilities; (4) the requested accommodation may be necessary to afford one or
more persons with a disability an equal opportunity to use and enjoy the dwelling; (5) the state or
local government refused to grant, failed to act on, or unreasonably delayed the accommodation
request; and (6) the state or local government cannot show that granting the accommodation
would impose an undue financial and administrative burden on the local government or that it
would fundamentally alter the local government’s zoning scheme. A requested accommodation
may be necessary if there is an identifiable relationship between the requested accommodation
and the group home residents’ disability. Further information is provided in Q&A 10 above and
the HUD/DOJ Joint Statement on Reasonable Accommodations under the Fair Housing Act.
21. Can a local government deny a group home’s request for a reasonable
accommodation without violating the Fair Housing Act?
Yes, a local government may deny a group home’s request for a reasonable
accommodation if the request was not made by or on behalf of persons with disabilities (by, for
example, the group home developer or operator) or if there is no disability-related need for the
requested accommodation because there is no relationship between the requested
accommodation and the disabilities of the residents or proposed residents.
In addition, a group home’s request for a reasonable accommodation may be denied by a
local government if providing the accommodation is not reasonable—in other words, if it would
impose an undue financial and administrative burden on the local government or it would
fundamentally alter the local government’s zoning scheme. The determination of undue
financial and administrative burden must be decided on a case-by-case basis involving various
factors, such as the nature and extent of the administrative burden and the cost of the requested
accommodation to the local government, the financial resources of the local government, and the
benefits that the accommodation would provide to the persons with disabilities who will reside in
the group home.
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When a local government refuses an accommodation request because it would pose an
undue financial and administrative burden, the local government should discuss with the
requester whether there is an alternative accommodation that would effectively address the
disability-related needs of the group home’s residents without imposing an undue financial and
administrative burden. This discussion is called an “interactive process.” If an alternative
accommodation would effectively meet the disability-related needs of the residents of the group
home and is reasonable (that is, it would not impose an undue financial and administrative
burden or fundamentally alter the local government’s zoning scheme), the local government
must grant the alternative accommodation. An interactive process in which the group home and
the local government discuss the disability-related need for the requested accommodation and
possible alternative accommodations is both required under the Act and helpful to all concerned,
because it often results in an effective accommodation for the group home that does not pose an
undue financial and administrative burden or fundamental alteration for the local government.
22. What is the procedure for requesting a reasonable accommodation?
The reasonable accommodation must actually be requested by or on behalf of the
individuals with disabilities who reside or are expected to reside in the group home. When the
request is made, it is not necessary for the specific individuals who would be expected to live in
the group home to be identified. The Act does not require that a request be made in a particular
manner or at a particular time. The group home does not need to mention the Fair Housing Act
or use the words “reasonable accommodation” when making a reasonable accommodation
request. The group home must, however, make the request in a manner that a reasonable person
would understand to be a disability-related request for an exception, change, or adjustment to a
rule, policy, practice, or service. When making a request for an exception, change, or adjustment
to a local land use or zoning regulation or policy, the group home should explain what type of
accommodation is being requested and, if the need for the accommodation is not readily apparent
or known by the local government, explain the relationship between the accommodation and the
disabilities of the group home residents.
A request for a reasonable accommodation can be made either orally or in writing. It is
often helpful for both the group home and the local government if the reasonable accommodation
request is made in writing. This will help prevent misunderstandings regarding what is being
requested or whether or when the request was made.
Where a local land use or zoning code contains specific procedures for seeking a
departure from the general rule, courts have decided that these procedures should ordinarily be
followed. If no procedure is specified, or if the procedure is unreasonably burdensome or
intrusive or involves significant delays, a request for a reasonable accommodation may,
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nevertheless, be made in some other way, and a local government is obligated to grant it if the
requested accommodation meets the criteria discussed in Q&A 20, above.
Whether or not the local land use or zoning code contains a specific procedure for
requesting a reasonable accommodation or other exception to a zoning regulation, if local
government officials have previously made statements or otherwise indicated that an application
for a reasonable accommodation would not receive fair consideration, or if the procedure itself is
discriminatory, then persons with disabilities living in a group home, and/or its operator, have
the right to file a Fair Housing Act complaint in court to request an order for a reasonable
accommodation to the local zoning regulations.
23. Does the Fair Housing Act require local governments to adopt formal reasonable
accommodation procedures?
The Act does not require a local government to adopt formal procedures for processing
requests for reasonable accommodations to local land use or zoning codes. DOJ and HUD
nevertheless strongly encourage local governments to adopt formal procedures for identifying
and processing reasonable accommodation requests and provide training for government officials
and staff as to application of the procedures. Procedures for reviewing and acting on reasonable
accommodation requests will help state and local governments meet their obligations under the
Act to respond to reasonable accommodation requests and implement reasonable
accommodations promptly. Local governments are also encouraged to ensure that the
procedures to request a reasonable accommodation or other exception to local zoning regulations
are well known throughout the community by, for example, posting them at a readily accessible
location and in a digital format accessible to persons with disabilities on the government’s
website. If a jurisdiction chooses to adopt formal procedures for reasonable accommodation
requests, the procedures cannot be onerous or require information beyond what is necessary to
show that the individual has a disability and that the requested accommodation is related to that
disability. For example, in most cases, an individual’s medical record or detailed information
about the nature of a person’s disability is not necessary for this inquiry. In addition, officials
and staff must be aware that any procedures for requesting a reasonable accommodation must
also be flexible to accommodate the needs of the individual making a request, including
accepting and considering requests that are not made through the official procedure. The
adoption of a reasonable accommodation procedure, however, will not cure a zoning ordinance
that treats group homes differently than other residential housing with the same number of
unrelated persons.
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24. What if a local government fails to act promptly on a reasonable accommodation
request?
A local government has an obligation to provide prompt responses to reasonable
accommodation requests, whether or not a formal reasonable accommodation procedure exists.
A local government’s undue delay in responding to a reasonable accommodation request may be
deemed a failure to provide a reasonable accommodation.
25. Can a local government enforce its zoning code against a group home that violates
the zoning code but has not requested a reasonable accommodation?
The Fair Housing Act does not prohibit a local government from enforcing its zoning
code against a group home that has violated the local zoning code, as long as that code is not
discriminatory or enforced in a discriminatory manner. If, however, the group home requests a
reasonable accommodation when faced with enforcement by the locality, the locality still must
consider the reasonable accommodation request. A request for a reasonable accommodation
may be made at any time, so at that point, the local government must consider whether there is a
relationship between the disabilities of the residents of the group home and the need for the
requested accommodation. If so, the locality must grant the requested accommodation unless
doing so would pose a fundamental alteration to the local government’s zoning scheme or an
undue financial and administrative burden to the local government.
Questions and Answers on Fair Housing Act Enforcement of
Complaints Involving Land Use and Zoning
26. How are Fair Housing Act complaints involving state and local land use laws and
practices handled by HUD and DOJ?
The Act gives HUD the power to receive, investigate, and conciliate complaints of
discrimination, including complaints that a state or local government has discriminated in
exercising its land use and zoning powers. HUD may not issue a charge of discrimination
pertaining to “the legality of any State or local zoning or other land use law or ordinance.”
Rather, after investigating, HUD refers matters it believes may be meritorious to DOJ, which, in
its discretion, may decide to bring suit against the state or locality within 18 months after the
practice at issue occurred or terminated. DOJ may also bring suit by exercising its authority to
initiate litigation alleging a pattern or practice of discrimination or a denial of rights to a group of
persons which raises an issue of general public importance.
If HUD determines that there is no reasonable cause to believe that there may be a
violation, it will close an investigation without referring the matter to DOJ. But a HUD or DOJ
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decision not to proceed with a land use or zoning matter does not foreclose private plaintiffs
from pursuing a claim.
Litigation can be an expensive, time-consuming, and uncertain process for all parties.
HUD and DOJ encourage parties to land use disputes to explore reasonable alternatives to
litigation, including alternative dispute resolution procedures, like mediation or conciliation of
the HUD complaint. HUD attempts to conciliate all complaints under the Act that it receives,
including those involving land use or zoning laws. In addition, it is DOJ’s policy to offer
prospective state or local governments the opportunity to engage in pre-suit settlement
negotiations, except in the most unusual circumstances.
27. How can I find more information?
For more information on reasonable accommodations and reasonable modifications under the
Fair Housing Act:
HUD/DOJ Joint Statement on Reasonable Accommodations under the Fair Housing Act,
available at https://www.justice.gov/crt/fair-housing-policy-statements-and-guidance-0
or http://www.hud.gov/offices/fheo/library/huddojstatement.pdf.
HUD/DOJ Joint Statement on Reasonable Modifications under the Fair Housing Act,
available at https://www.justice.gov/crt/fair-housing-policy-statements-and-guidance-0
or http://www.hud.gov/offices/fheo/disabilities/reasonable_modifications_mar08.pdf.
For more information on state and local governments’ obligations under Section 504:
HUD website at http://portal.hud.gov/hudportal/HUD?src=/program_offices/
fair_housing_equal_opp/disabilities/sect504.
For more information on state and local governments’ obligations under the ADA and Olmstead:
U.S. Department of Justice website, www.ADA.gov, or call the ADA information line at
(800) 514-0301 (voice) or (800) 514-0383 (TTY).
Statement of the Department of Justice on Enforcement of the Integration Mandate of
Title II of the Americans with Disabilities Act and Olmstead v. L.C., available at
http://www.ada.gov./olmstead/q&a_olmstead.htm.
Statement of the Department of Housing and Urban Development on the Role of Housing
in Accomplishing the Goals of Olmstead, available at
http://portal.hud.gov/hudportal/documents/huddoc?id=OlmsteadGuidnc060413.pdf.
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For more information on the requirement to affirmatively further fair housing:
Affirmatively Furthering Fair Housing, 80 Fed. Reg. 42,272 (July 16, 2015) (to be
codified at 24 C.F.R. pts. 5, 91, 92, 570, 574, 576, and 903).
U.S. Department of Housing and Urban Development, Version 1, Affirmatively
Furthering Fair Housing Rule Guidebook (2015), available at
https://www.hudexchange.info/resources/documents/AFFH-Rule-Guidebook.pdf.
Office of Fair Housing and Equal Opportunity, U.S. Department of Housing and Urban
Development, Vol. 1, Fair Housing Planning Guide (1996), available at
http://www.hud.gov/offices/fheo/images/fhpg.pdf.
For more information on nuisance and crime-free ordinances:
Office of General Counsel Guidance on Application of Fair Housing Act Standards to the
Enforcement of Local Nuisance and Crime-Free Housing Ordinances Against Victims of
Domestic Violence, Other Crime Victims, and Others Who Require Police or Emergency
Services (Sept. 13, 2016), available at http://portal.hud.gov/hudportal/documents/
huddoc?id=FinalNuisanceOrdGdnce.pdf.
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PUBLIC NOTICE
TO: General Public
FROM: Division of Fire and Building Safety , Indiana Department of Homeland Security
DATE: March 03, 2020
RE: Classification of Supportive Living Facilities (Class 1 or Class 2 structures?)
OVERVIEW
This notice is intended to clarify when supportive living facilities (facilities that provide staff to its residents to
assist with daily living activities) are considered Class 1 or Class 2 Structures.
BACKGROUND
As part of its regulatory authority to issue design releases, inspect structures and enforce the building and fire
safety laws of Indiana, the Indiana Department of Homeland Security Division of Fire and Building Safety
(DFBS) must determine the appropriate classification of structures that are being regulated. Typically,
structures fall within one of two classifications of structures; Class 1 structures or Class 2 structures. See IC §§
22-12-1-4 and 5 for the definitions of Class 1 and Class 2 structures. Generally speaking, Class 2 structures
are townhouses or one or two dwelling unit structures, and Class 1 structures are structures used by the
public, three or more tenants or employees. Sometimes, however, the use of a structure may appear to fall
within the statutory definition of both a Class 1 and Class 2 structure (i.e. the structure may be a townhouse or
a one and two dwelling unit structure that is used by the public, three or more tenants or employees). In most
cases, supportive living facilities fall within this situation; they are one or two dwelling unit structures that may
be used by employees or three or more tenants. To address the overlap between the definitions of Class 1 and
Class 2 structures and to provide clarity to the regulated public on how their facility will be regulated, the DFBS
provides the following notice explaining when a supportive living facility will be classified as a Class 1 or Class
2 structure.
NOTICE
In general, supportive living facilities are considered Class 1 structures. However, supportive living facilities are
considered Class 2 structures if the following conditions are met:
1. the structure is a townhouse or only contains one or two d welling units;
2. the structure is intended to be occupied by no more than two tenants (except for townhouses which
may only have one tenant per unit by definition);
A tenant is someone, or some group, that possesses a structure or a unique portion of a
structure. The number of tenants is not dependent on the number of occupants or the number or
rental agreements entered, but the number of unique spaces being possessed. If a strucutre is
being rented out on a per room basis, the structure has as many tenants as rooms intended to
be rented.
3. the structure is intended to be used for nontransient residential occupancy;
4. the presence of employees at the structure is limited to providing supportive living services
(services limited to supporting the regular use and enjoyment of the structure for residential
purposes); and
5. the structure does not contain nonresidential areas that are not traditionally found in a dwelling unit.