Making Sense of Assisted Living Laws and Regulations

Residential assisted living homes are subject to a variety of laws, regulations, and rules. This is because assisted living is a regulated industry and governments and neighborhoods want to have a say in where and how you build your home and how you operate it.

 Understanding how these laws fit together can be confusing. The purpose of this blog is to help give you a roadmap to find your way through.

 The first rules you’re going to encounter are those related to where you put your home.

 ·      Zoning - The zoning code is a set of rules adopted by the jurisdiction where your home is located. Zoning rules govern what can be built and how buildings can be used. The zoning code is the starting point to figuring out where you can put your home and how many people you can have.

Keep in mind that the zoning code is adopted legislatively by the highest decision making body in the jurisdiction – e.g. the city council. This means that city employees in the planning department can’t stray from the rules, no matter how good you think your idea is or how much the city needs it. Unless …. the local code is somehow preempted (overridden) by a higher level law.

A higher level law is a law enacted by a higher body – like the state or federal government. Higher level laws can sometimes be used when a local rule is too restrictive, such as when the zoning code says that you can’t put an assisted living home where you had hoped, or the number of residents allowed is too limited. The primary laws we look to in this context are fair housing laws.

·      Federal and State Fair Housing laws – The federal Fair Housing Act (FHA) was adopted “to provide, within constitutional limitations, fair housing throughout the United States.” The FHA prohibits discrimination in housing on account of race, color, religion, sex, national origin, familial status, and disability. Assisted living residents are considered disabled and are protected by the Act, as are those who want to provide housing for them. Local jurisdictions may violate the act if the zoning code is discriminatory or if they fail to grant exceptions (“reasonable accommodation”) needed for the disabled people to live in the home of their choice. 

 Sometimes it is a private contract, not a government, that tries to keep an assisted living residence out of a neighborhood. Yes, we’re referring to the dreaded HOA.

·      Covenants and deed restrictions – HOA covenants and deed restrictions will apply to your assisted living home, except to the extent that doing so violates fair housing laws. For example, a prohibition against “business use” has been held to not preclude a group home, because a group home fundamentally is a residential use. Trying to use this prohibition to keep group homes out may violate the FHA because it discriminates against people with disabilities. But general design requirements that apply equally to everyone are not discriminatory and must be followed. 

There are other rules that apply to the construction or renovation of a home. These include:

 ·      Building / fire codes – Local governments adopt building and fire codes setting safety standards that you must abide by when building your home. The standards that apply to your home should be residential standards, as this is a residential use. 

 ·      Design standards – Design requirements for assisted living are usually set at the state level by the state agency that licenses assisted living. These requirements may be set out in the state licensing regulation or by adoption of national standards developed by the Facility Guidelines Institute (FGI). Typical standards include bedroom size and bathroom ratio requirements.

 And finally, state licensing regulations will govern how you operate your home.

·      State licensing – If your state licenses assisted living homes, there will be a state statute that creates that license and gives the power to administer it to a state agency, like the department of health. That agency then will adopt regulations to govern operations, such as administrator qualifications, staff training requirements, licensing fees, etc. It is this state agency that you will most interact once you open your home. They may conduct periodic inspections and you will need to renew the license periodically.

 One common misperception is that state licensing regulations “allow” a certain number of residents in a home. This is not the case. What state licensing regulations often do is to define different types of facilities based on the number of residents. For example, small facilities may be defined as those having 16 or fewer residents. While this is the number of residents you can have to qualify for that particular license, it does not necessarily mean that you can have that many people in your home. That question is governed by the zoning rules discussed above. 

This blog is an overview of the general structure of laws and regulations applicable to assisted living. It does not constitute legal advice. For specific requirements related to your home, please consult your attorney.