Would Tennessee's 2015 bill requiring 90 days' notice to neighbors before opening a state group home for people with disabilities run afoul of the federal ADA?

Subject

Opinion No. 15-56, House Bill 1136/Senate Bill 1192, 109th Gen. Assemb. (Tenn. 2015) — Notice requirements regarding State Group Homes, July 8, 2015

Plain-English summary

In 2015, the Tennessee General Assembly considered HB 1136 / SB 1192. The bill would have required the state to give 90 days' notice to every homeowner in a neighborhood before opening any state-owned group home in the area to serve as a residential facility for adults or children. The legislation covered residences for people with mental health needs, drug and alcohol treatment needs, and intellectual or developmental disabilities, as well as children in DCS custody. Representative Jernigan asked whether the bill would violate the federal Americans with Disabilities Act's requirement that public services be administered in "the most integrated setting appropriate to the needs of qualified individuals with disabilities," as construed by the U.S. Supreme Court in Olmstead v. L.C. (1999).

The AG could not give a hard yes or no. The answer depends on whether the 90-day notice requirement would actually decrease the availability of community-based housing. If it did (because, say, neighborhood opposition during the notice period delayed or blocked openings), then disabled individuals who would otherwise have been placed in community residences would be at greater risk of unjustified institutional placement, and that would create real exposure to ADA Olmstead litigation. The AG flagged the same concern for child group homes under Title 37 that serve children with intellectual or developmental disabilities.

Currency note

This opinion was issued in 2015. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What is Olmstead?

Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999), held that the ADA requires states to provide community-based placements for people with disabilities when (1) treatment professionals say community placement is appropriate, (2) the person does not oppose it, and (3) the placement can be reasonably accommodated within state resources. "Unjustified isolation" of disabled people in institutions is a form of discrimination prohibited by the ADA.

How would a 90-day notice requirement affect Olmstead compliance?

Notice requirements give neighbors a structured opportunity to object, raise concerns, file complaints, or pressure local officials. Even when the notice does not actually block a group home from opening, it can delay openings, raise development costs, deter site selection in particular neighborhoods, and generally reduce the supply of community-based placements. Fewer community placements means more people staying in institutional settings, which is the Olmstead trigger.

Why couldn't the AG give a definitive yes or no?

Because the impact is empirical. The AG cannot predict whether, in practice, the notice requirement would meaningfully reduce community placements. If it did, ADA exposure goes up. If it did not, the requirement is just procedural. The opinion is a warning rather than a verdict.

Who is "disabled" under the ADA in this context?

The ADA's broad definition (42 U.S.C. § 12012) covers people with a physical or mental impairment that substantially limits a major life activity, plus people with a record of such an impairment or regarded as having one. Mental health disorders, intellectual and developmental disabilities, and drug and alcohol disorders all count (per MX Group, Inc. v. City of Covington, 293 F.3d 326 (6th Cir. 2002)).

Did the AG offer guidance on how to fix the bill?

The opinion did not propose specific drafting. The AG flagged the legal risk. Legislative options would include narrowing the notice obligation, exempting state-owned residential placements for people with disabilities, or providing a process that does not give neighbors a veto.

Background and statutory framework

Title II of the ADA (42 U.S.C. § 12132) bars state and local governments from discriminating against people with disabilities in the provision of public services. The implementing regulations require public entities to "administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities" and to "make reasonable modifications" to avoid disability discrimination. 28 C.F.R. § 35.130.

The Supreme Court's decision in Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999), held that unjustified institutionalization is a form of discrimination. States must provide community-based placement when (1) the state's own treatment professionals determine it is appropriate, (2) the affected person does not oppose it, and (3) the placement can be reasonably accommodated, given the state's resources and the needs of others with disabilities.

The Sixth Circuit in MX Grp., Inc. v. City of Covington, 293 F.3d 326 (6th Cir. 2002), confirmed that drug and alcohol abuse can constitute a disability under the ADA.

Tennessee Code Annotated Title 33, Chapter 2, Part 4, governs licensure of facilities, including state-owned and private group homes, providing mental health services, alcohol and drug abuse prevention and treatment, services for intellectual and developmental disabilities, and personal support services. Tenn. Code Ann. § 33-2-403. The Part 4 framework is inapplicable to state operations with purposes other than these disability-related services (Tenn. Code Ann. § 33-2-403(b)(9)), so the population in Title 33 group homes is presumptively ADA-eligible.

Tennessee Code Annotated Title 37, Chapter 5, Part 5, governs licensing of child-care agencies and excludes from its coverage entities licensed by other state or federal agencies for health, psychiatric, or mental health care for children. Tenn. Code Ann. § 37-5-503(3). The bill's parallel Title 37 amendment would impose the same 90-day notice requirement on state group homes for children, including those with intellectual and developmental disabilities.

Citations

• 42 U.S.C. § 12132 (ADA Title II)
• 42 U.S.C. § 12012 (ADA definition of disability)
• 28 C.F.R. § 35.130 (most integrated setting requirement)
• Tenn. Code Ann. § 33-2-403 (licensure of disability service facilities)
• Tenn. Code Ann. § 33-2-403(b)(9) (Part 4 limited to listed services)
• Tenn. Code Ann. § 37-5-503(3) (child-care agency licensing exclusions)
• Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999)
• MX Grp., Inc. v. City of Covington, 293 F.3d 326 (6th Cir. 2002)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2015/op15-56.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
July 8, 2015
Opinion No. 15-56
House Bill 1136/Senate Bill 1192, 109th Gen. Assemb. (Tenn. 2015) — Notice requirements regarding State Group Homes

Question 1

Do the provisions of House Bill 1136/Senate Bill 1192, 109 Gen. Assemb. (Tenn. 2015) violate the "most integrated setting" requirement of the Americans with Disabilities Act?

Opinion 1

We cannot predict with any degree of certainty the extent to which this proposed statutory amendment would adversely affect the availability of cost-effective home- and community-based residential alternatives to institutional care for persons receiving mental health services, alcohol and drug abuse prevention and/or treatment, or intellectual or developmental disabilities services. But to the extent that the imposition of notice requirements for these state-owned residential group homes operates to decrease availability and thereby to increase the risk of unjustified institutional placement or to otherwise impede the State's obligation to administer its services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities, the proposed amendment could leave the State vulnerable to a legal challenge under the Americans with Disabilities Act.

Question 2

Does House Bill 1136/Senate Bill 1192, 109 Gen. Assemb. (Tenn. 2015) comply with the United States Supreme Court's ruling in Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999)?

Opinion 2

See Response to Question 1.

ANALYSIS

Title II of the federal Americans with Disabilities Act (ADA) prohibits discrimination based on disability in the provision of public services by governmental entities. 42 U.S.C. § 12132. The regulations implementing the ADA's discrimination prohibition require that public entities "administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities" and "make reasonable modifications in policies, practices, and procedures" as necessary "to avoid discrimination on the basis of disability." 28 C.F.R. § 35.130.

The United States Supreme Court has determined that "unjustified isolation of persons with disabilities is a form of discrimination" based on disability and is prohibited by the ADA. Olmstead v. L. C. ex rel. Zimring, 527 U.S. 581, 600 (1999). Accordingly, Title II of the ADA requires states to provide community-based placements for individuals with disabilities when their treatment professionals determine that community placement is appropriate, the affected individual does not oppose community placement, and the placement can be reasonably accommodated, taking into account the resources available to the state and the needs of others with disabilities. Olmstead, 527 U.S. at 607.

An individual is considered "disabled" under the ADA if he has (1) a physical or mental impairment that substantially limits one or more of the major life activities of such individual, (2) has a record of such impairment, or (3) is regarded by his employer as having such an impairment. 42 U.S.C. § 12012. In addition to mental health disorders and intellectual and developmental disabilities, drug and alcohol abuse can constitute a disability for purposes of the ADA. MX Grp., Inc. v. City of Covington, 293 F.3d 326, 336 (6th Cir. 2002).

Tennessee Code Annotated, Title 33, Chapter 2, Part 4, governs licensure of private and state-owned facilities that provide mental health services, alcohol and drug abuse prevention and/or treatment, services for intellectual and developmental disabilities, and personal support services, including residential facilities and group homes. Tenn. Code Ann. § 33-2-403. These facilities, when operated by the State of Tennessee or other governmental entity, constitute the provision of public services by governmental entities as contemplated by Title II of the ADA, and therefore must be operated in the most integrated setting appropriate to the needs of the persons who will inhabit them.

House Bill 1136/Senate Bill 1192 would amend Title 33 to require the State to provide ninety (90) days' notice to each homeowner in an established neighborhood or otherwise developed identifiable residential area before opening any state-owned group home in the neighborhood or area to serve as a residential facility for adults or children, including persons with intellectual disabilities or children in the custody of the department of children's services. All state-owned group homes and residential facilities governed by Title 33, Chapter 2, Part 4, are likely to provide services to disabled persons as defined in the ADA because Part 4 is inapplicable to licensure of state operated facilities with purposes other than the provision of mental health services, alcohol and drug abuse prevention and/or treatment, or intellectual or developmental disabilities services. Tenn. Code Ann. § 33-2-403(b)(9).

We cannot predict with any degree of certainty the extent to which this proposed statutory amendment would adversely affect the availability of cost-effective home- and community-based residential alternatives to institutional care for persons receiving mental health services, alcohol and drug abuse prevention and/or treatment, or intellectual or developmental disabilities services. To the extent that the imposition of notice requirements for state-owned residential group homes operates to decrease availability and thereby increase the risk of unjustified institutional placement or otherwise impede the State's obligation to administer its services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities, the proposed amendment could leave the State vulnerable to a legal challenge under the Americans with Disabilities Act.

Tennessee Code Annotated Title 37, Chapter 5, Part 5 governs licensing of child-care agencies of various types that house children, specifically excluding "entities or persons licensed or otherwise regulated by other agencies of the state or federal governments providing health, psychiatric, or psychological care or treatment or mental health care or counseling for children while the entity or person is engaged in such licensed or regulated activity." Tenn. Code Ann. § 37-5-503(3).

House Bill 1136/Senate Bill 1192 would amend Title 37 to require the State to provide ninety (90) days' notice to each homeowner in an established neighborhood or otherwise developed identifiable residential area before opening any state-owned group home or child-care institution in the neighborhood or area to serve as a residential facility for children, including children with intellectual and developmental disabilities.

To the extent this notice requirement applies to state-owned residential facilities for intellectually/developmentally disabled children and operates to decrease availability and thereby increase the risk of unjustified institutional placement or otherwise impede the State's obligation to administer its services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities, the proposed amendment could leave the State vulnerable to a legal challenge under the Americans with Disabilities Act.

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

MARY BYRD FERRARA
Assistant Attorney General

Requested by:
The Honorable Darren Jernigan
State Representative
24 Legislative Plaza
Nashville, TN 37243