FGI Compliance Review - Questions Answered for Colorado ALR Owners
By now, all Colorado assisted living owners and operators know that the Colorado Department of Public Health and Environment has adopted the Facility Guideline Institute (FGI) Residential Guidelines for facility design.[1] But we often get asked when these FGI Guidelines apply.
When does FGI apply?
For assisted living residences, FGI requirements are found in both Chapter 2 (the general chapter on licensing) and Chapter 7 (the specific chapter for assisted living). There are four reasons your assisted living residence might need an FGI Compliance Review:
1. An addition of more space that was previously not part of the licensed facility. The addition may be new construction or existing structures that are being repurposed for client use.[2]
2. New construction of new buildings or additions.[3]
3. A renovation of a licensed facility. Renovation means the moving of walls and reconfiguring of existing floor plans. It includes the rebuilding or upgrading of major systems, including but not limited to: heating, ventilation, and electrical systems. It also means the changing of the functional operation of the space.[4] However, minor alterations do not require a compliance review. “Minor alterations” means building construction projects which are not additions, which do not affect the structural integrity of the building, which do not change functional operation, and/or which do not add beds or capacity above what the facility is limited to under the existing license.[5]
4. Initial License. Assisted living residences are the only licensed facilities that are required to go through an FGI compliance review with an initial license application, even if there is no construction, addition, or renovation planned for the facility.[6] This would occur, for example, when a new owner is purchasing an existing facility. We at PLPG see the requirement to get an FGI compliance review with an initial license as potentially violative of the Fair Housing Act. This requirement treats people with disabilities (or those associated with them) who live in assisted living differently from those who live in other licensed facilities. It is unnecessarily burdensome and makes no sense if changes are not planned for the ALR. It is facially discriminatory and may, under certain circumstances, form the basis for a civil rights challenge. That being said, an FGI compliance review is not necessary if the new owner applies for a change of ownership, rather than a new license, and does not plan to do any construction, renovation, or non-minor alteration to the facility. The Department has taken the position that the underlying license must be current at the time of transfer for the purchaser to qualify for a change of ownership rather than an initial license.
Applying for an FGI Compliance Review
“Guideline compliance review” means the review of design documents submitted to the department, in the format required by the Department, for determination of compliance with FGI Guidelines.
The FGI Compliance Review application should be submitted at the time the licensee/applicant applies for a building permit from the local authority. If a building permit is not required, then design documents should be submitted to the FGI compliance reviewers prior to the start of construction.[7]
To apply for FGI review:
Submit a plan review request form, which can be found here, along with all design documents to fgireview@state.co.us.
Design documents must be submitted by the “guideline compliance review representative.” This is a person designated by the licensee or applicant to submit design documents to the Department on behalf of the licensee or applicant. Generally, this will be the architect or design/build contractor.
Design documents must be signed by the responsible design professional.
The scale of the design documents must be consistent amongst all disciplines.
Documents can be submitted in phases if the Department agrees.
Waivers may be available to FGI Guidelines if the facility cannot meet the requirements. Waiver requests must be submitted prior to submittal of the license application.[8] It is important to keep in mind that fair housing arguments may apply to waiver requests. Unfortunately, waivers are only valid for one year and must be renewed annually with the license.
Construction must begin within twelve months after receiving FGI approval. If not, you will have to reapply. Similarly, FGI approval expires if construction activity is stopped for twelve months.
Please note that compliance with FGI Guidelines is not the only physical plant requirement that you will have. Your ALR must also comply with all applicable local zoning, housing, fire, and sanitary codes and ordinances (to the extent that such codes and ordinances are consistent with federal law). You will also need to comply with the standards adopted by the Director of the Division of Fire Prevention and Control (DFPC) at the Colorado Department of Public Safety, if applicable.
We hope this article helps to answer your FGI questions. Please contact us for additional assistance with your FGI questions or submittals.
Disclaimer: This article is for educational purposes only. Noting in it should be construed as legal advice.
[1] When it comes to assisted living, “FGI Guidelines” means the Guidelines for Design and Construction of Residential Health, Care, and Support Facilities, published by the Facilities Guidelines Institute. These Guidelines are available for purchase in hard copy or on-line here. Currently, Colorado uses the 2018 version of the Guidelines. Assisted living residences are subject only to Part 1, any cross-referenced Part 2 systems, and Part 4.1 of these Guidelines.
[2] Id., Parts 1.2 and 3.3.1(A).
[3] Id., Parts 1.46 and 3.3.1(B).
[4] Id., Parts 1.52 and 3.3.1(C).
[5] Id., Parts 1.43 and 3.3.1(D).
[6] 6 CCR 1011-1, Chapter 7, Part 20.2.
[7] 6 CCR 1011-1, Chapter 2, Part 3.3.2.
[8] Id., Part 3.4.1(A).