Would Tennessee bills requiring assisted-living and adult-care homes to meet the same staffing and safety standards as nursing homes violate the federal ADA's integration mandate?

Plain-English summary

Two proposed bills in the 2015 Tennessee General Assembly would have substantially raised the licensing requirements for residential alternatives to nursing homes (assisted-care living facilities, critical adult care homes, traumatic brain injury homes, adult foster care, and similar settings). HB 604/SB 567 would have required entities providing "similar services" to be subject to "substantially the same" licensure standards as nursing homes. HB 413/SB 583 would have deleted § 33-2-418(c), which had allowed providers of services to persons with intellectual or developmental disabilities to also provide services to the elderly or adults with physical disabilities.

State Representative Darren Jernigan asked whether these bills would violate the ADA's integration mandate and the U.S. Supreme Court's Olmstead v. L.C. decision.

The AG could not predict outcomes with certainty but identified a real legal risk. The analytical framework: Title II of the ADA prohibits discrimination by public entities (42 U.S.C. § 12132). 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" (28 C.F.R. § 35.130). The Olmstead Court held that "unjustified institutional isolation of persons with disabilities is a form of discrimination" prohibited by the ADA, and that states must provide community-based placements when professionals determine community placement is appropriate, the individual does not oppose it, and it can be reasonably accommodated.

Tennessee's Long-Term Care Community Choices Act of 2008 (Tenn. Code Ann. §§ 71-5-1401 to -1422) is the state's principal vehicle for compliance with that mandate. The Act calls for development of cost-effective community-based residential alternatives and directs the Board for Licensing Health Care Facilities (BLHCF) to develop or modify licensure rules to support a "nursing facility substitute framework." Less onerous licensing of assisted-care and adult-care residences is built into the design; for example, critical adult care homes need only meet single-family-dwelling code requirements unless BLHCF imposes more stringent standards. The BLHCF regulations described in the opinion's lengthy footnote 1 show how the framework actually plays out: very different staffing patterns for nursing facilities (registered nurse director, two nursing personnel per shift, two hours direct care per resident) versus assisted-care living facilities (administrator and direct-care staff, licensed nurse available as needed) versus critical adult care homes (a qualified provider or resident manager on duty 24 hours, with sufficient staff for resident needs).

The proposed bills would erase that flexibility, requiring residential alternatives to meet the same building, life-safety, sprinkler, staffing, and administration standards as nursing homes. That would make alternative settings more costly and harder to operate, reducing supply. To the extent reduced supply increases the risk that disabled Tennesseans are placed in institutions when community placement would be appropriate, the bills would put the state in tension with Olmstead and 28 C.F.R. § 35.130 and could expose the state to ADA litigation.

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. The bills addressed in this opinion may or may not have been enacted in the form analyzed.

Common questions

Q: What is the ADA's "integration mandate"?
A: The regulation at 28 C.F.R. § 35.130 requiring public entities to administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities. The Olmstead Court interpreted this to forbid unjustified institutional isolation.

Q: How specifically would the bills affect community placements?
A: By raising licensing costs and operational burdens on assisted-living, adult care home, and similar providers, fewer providers would operate. With fewer community placements available, more disabled Tennesseans would face the choice between institutional placement and inadequate community options. The AG calls this "increase[ing] the risk of unjustified institutional placement."

Q: Did the AG predict the bills would definitely violate the ADA?
A: No. The opinion is hedged ("we cannot predict with any degree of certainty"). The AG identified the legal risk and the doctrinal hook (Olmstead, 28 C.F.R. § 35.130) but did not declare the bills unconstitutional or per se unlawful.

Q: Is the state already at risk under Olmstead?
A: The opinion describes Tennessee's compliance posture as resting on the Community Choices Act framework, with deliberately flexible licensing for community-based alternatives. The bills would undermine that framework. Whether Tennessee's current posture is itself Olmstead-compliant is a separate question the opinion does not address.

Q: What's the practical takeaway for the legislature?
A: Before adopting one-size-fits-all licensing rules that align community providers with nursing-facility standards, the legislature should consider the ADA integration mandate. The opinion essentially counsels caution.

Background and statutory framework

Olmstead is a 1999 U.S. Supreme Court decision that has driven two decades of state Medicaid policy on home and community-based services. States are required, under Title II of the ADA, to take reasonable steps to avoid unjustified institutionalization. The federal Centers for Medicare & Medicaid Services have used HCBS waivers, the Money Follows the Person program, and state-by-state Olmstead settlements to push states toward expanded community capacity.

Tennessee's Long-Term Care Community Choices Act of 2008 is the state-law backbone of compliance, with deliberate statutory flexibility for licensing diverse residential alternatives. The opinion's lengthy regulatory comparison (footnote 1) illustrates just how much daylight exists between nursing-facility staffing and the staffing of less-institutional alternatives. Aligning the two through legislation would be a structural reversal of state policy and a foreseeable ADA risk.

Citations and references

Tennessee statutes and regulations:

• Tenn. Code Ann. § 33-2-418 (intellectual/developmental disability residential services)
• Tenn. Code Ann. § 68-11-201(4), (4)(C)(vi) (assisted-care living facility statutory purpose; fire-safety regs)
• Tenn. Code Ann. § 68-11-202(b)(1)(E), 68-11-206(a)(4) (critical adult care home; TBI residential home licensure)
• Tenn. Code Ann. §§ 71-5-1401 to -1422 (Long-Term Care Community Choices Act of 2008)
• Tenn. Code Ann. § 71-5-1402(a), (c), (f), (h) (Act objectives)
• Tenn. Code Ann. § 71-5-1411(a), (b) (Commissioner's planning duties; BLHCF licensing modification)
• Tenn. Comp. R. & Regs. 1200-08-06; 1200-08-25; 1200-08-36 (licensing rules)
• Tenn. Comp. R. & Regs. 1200-13-01-.02(22), (23) (CHOICES Groups 1 and 2)

Federal statutes and regulations:

• 42 U.S.C. § 12132 (ADA Title II)
• 28 C.F.R. § 35.130 (integration mandate)

Case:

• Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (U.S. 1999) (U.S. Supreme Court; institutional isolation as ADA discrimination)

Tennessee legislation referenced:

• Critical Adult Care Home Act of 2009 (2009 Acts, Pub. Chap. 579)
• Traumatic Brain Injury Residential Home Act of 2012 (2012 Acts, Pub. Chap. 1086)

Subject

Opinion No. 15-15, House Bill 604/Senate Bill 567, 109th Gen. Assembly (Tenn. 2015), and House Bill 413/Senate Bill 583, March 2, 2015

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2015/op15-15.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
March 2, 2015
Opinion No. 15-15
House Bill 604/Senate Bill 567, 109th Gen. Assemb. (Tenn. 2015), and House Bill 413/Senate Bill 583, 109th Gen. Assemb. (Tenn. 2015) - Licensure Standards for Facilities Providing Services to Disabled Persons

Question 1
Do the provisions of House Bill 604/Senate Bill 567, 109th Gen. Assemb. (Tenn. 2015), and House Bill 413/Senate Bill 583, 109th 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 what impact the statutory amendments in these proposed bills would have on the availability of cost-effective home and community-based residential alternatives to institutional care for the elderly and adults with physical disabilities. But to the extent that the imposition of more onerous licensure requirements on the providers of such home and community-based alternatives operates to increase the risk of unjustified institutional placement of such individuals 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 amendments could place the State at risk of legal challenge under the Americans with Disabilities Act.

Question 2
Do the bills comply with the United States Supreme Court's opinion 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 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 that implement 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 institutional 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.

Tennessee's Long-Term Care Community Choices Act of 2008, presently codified at Tenn. Code Ann. §§ 71-5-1401 through 71-5-1422 ("the Act") calls for the development of home and community-based residential alternatives to institutional placement. It provides a critical framework for the State's plan for compliance with the ADA. Its objectives include the following goals and directives:

(a) The long-term care system shall recognize that aging is not a disease, but rather a natural process that often includes increasing needs for assistance with daily living activities. . . .

(c) The long-term care system shall promote independence, choice, dignity and quality of life . . . .

(f) The long-term care system shall deliver needed supports and services in the most integrated setting appropriate and cost-effective way possible . . . .

(h) The long-term care system shall offer a continuum of long-term care services that includes an expanded array of home and community-based options . . . .

Tenn. Code Ann. § 71-5-1402(a), (c), (f), (h).

To achieve these objectives, the Act directed the Commissioner of Finance and Administration to develop and implement a plan for expanding cost-effective community-based residential alternatives to institutional care for persons who are elderly and/or adults with physical disabilities, including, but not limited to, the "development of multiple levels of assisted-care living facility services, adult family care homes, adult foster care homes, companion care models, and other cost-effective residential alternatives to nursing facility care." Tenn. Code Ann. § 71-5-1411(a). It instructed the Commissioner and the Board for Licensing Health Care Facilities ("BLHCF") to "develop and/or modify licensure requirements for such facilities to support a nursing facility substitute framework" for members who want to age in place in residences that offer increasing levels of cost-effective home and community-based care as an alternative to institutionalization as members' needs change. Tenn. Code Ann. § 71-5-1411(b).

The Act amended existing statutory licensure requirements for assisted-care living facility services. Included were new provisions specifying that the purpose of such services is to promote the availability of residential alternatives to institutional care for persons who are elderly or who have disabilities in the least restrictive and most homelike environment appropriate. Tenn. Code Ann. § 68-11-201(4).

To further effect the objectives of the Act, the General Assembly subsequently established new types of State-licensed residences in which twenty-four-hour residential care, including assistance with activities of daily living, is provided in a homelike environment to adults who are elderly, have a disability, or are suffering from the effects of a traumatic brain injury. See, e.g., Critical Adult Care Home Act of 2009 (2009 Acts, Pub. Chap. 579); Traumatic Brain Injury Residential Home Act of 2012 (2012 Acts, Pub. Chap. 1086). In a number of instances, this legislation provides that such residences shall be subjected to less onerous licensure requirements than are applicable to nursing facilities and other institutional settings. For example, critical adult care homes and traumatic brain injury residential homes are required to "meet all state and local building, sanitation, utility and fire code requirements applicable to single family dwellings," unless the BLHCF adopts more stringent standards as it deems necessary in order to ensure the health and safety, including adequate evacuation, of residents. Tenn. Code Ann. §§ 68-11-202(b)(1)(E) (emphasis added), 68-11-206(a)(4).[1]

Thus, in order to meet its paramount objectives of providing services in the most integrated setting appropriate and in the most cost-effective way possible for as many people as possible in home and community settings, the Act, in its current form, permits some flexibility in developing licensing requirements for residential alternatives to nursing homes. Less onerous licensing requirements may translate into less expense in the establishment, maintenance, and operation of such residential alternatives, thereby fostering their viability and availability.

The amendments contemplated by the proposed legislation would remove the flexibility in licensing requirements for the residential alternatives and could, therefore, make them more costly, less viable, and less available. Proposed House Bill 604/Senate Bill 567 would add a new subsection (c) to Tenn. Code Ann. § 71-5-1411. This new subsection would direct the Commissioner of Finance and Administration, any department responsible for the oversight of any entity licensed under Title 68 or Title 33, and the BLHCF to ensure that licensure standards be enacted by statute "so that entities providing similar services . . . are subject to substantially the same licensure requirements, particularly with respect to building, life safety, sprinkler, and staffing and administration standards." It would also direct them to ensure that entities providing services available to CHOICES Group 1 and Group 2 eligible individuals[2] "meet the same, or substantially the same, licensure standards as nursing homes." Proposed House Bill 413/Senate Bill 583 would delete subsection (c) of Tenn. Code Ann. § 33-2-418. This subsection currently permits a residential facility or provider that is licensed by the Department of Intellectual and Developmental Disabilities to provide residential services to persons with intellectual or developmental disabilities to also provide residential services to the elderly or adults with physical disabilities.

We cannot predict with any degree of certainty the extent to which these proposed statutory amendments would adversely affect the availability of cost-effective home and community-based residential alternatives to institutional care for the elderly and adults with physical disabilities. But to the extent that the imposition of more onerous licensure requirements on the providers of such home and community-based alternatives operates to decrease availability and thereby increase the risk of unjustified institutional placement of such individuals 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 amendments could place the State at risk of legal challenge under the Americans with Disabilities Act.

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

LINDA A. ROSS
Deputy Attorney General

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

[1] In several other regulatory areas, consistent with statutory authority, the BLHCF has promulgated rules and regulations that impose upon residential alternatives such as assisted-care living facilities and critical adult care homes less stringent and more homelike licensure standards than are imposed upon nursing facilities. Its staffing regulations, for example, vary significantly among these facility types. Each nursing facility must have a written agreement with a physician who will serve as Medical Director of the facility and have responsibility for the medical care therein (Tenn. Comp. R. & Regs. 1200-08-06-.06(2)(c), (d)), must have a full-time licensed administrator who may not also function as director of nursing (Tenn. Comp. R. & Regs. 1200-08-06-.04(1)), and must have a housekeeping supervisor (Tenn. Comp. Adm. R. & Regs. 1200-08-06-.06(3)(l)). It must also have an organized nursing service that provides 24-hour nursing services supervised by a registered nurse, that is headed by a Director of Nursing who is a registered nurse and is responsible for the operation of the nursing service, that has a licensed practical nurse or registered nurse on duty at all times and at least two nursing personnel on duty each shift, and that provides at least two hours of direct care to each resident every day, including 0.4 hours of licensed nursing personnel time (Tenn. Comp. R. & Regs. 1200-08-06-.06(4)(a), (b), (d), (e)). In contrast, each assisted-care living facility must have an administrator who is certified by the BLHCF or licensed as a nursing home administrator (Tenn. Comp. R. & Regs. 1200-08-25-.03(9)(a)), an identified responsible attendant who is alert and awake at all times and a sufficient number of direct care employees to meet the residents' needs (Tenn. Comp. R. & Regs. 1200-08-25-.06(1)(a)3), and a licensed nurse available as needed (Tenn. Comp. R. & Regs. 1200-08-25-.06(1)(a)4). A critical adult care home provider must be, or must employ a resident manager/substitute caregiver who is, licensed as a physician, nurse practitioner, registered nurse or respiratory therapist and/or hold national certification as a certified brain injury specialist (Tenn. Comp. R. & Regs. 1200-08-36-.02(14)(a), (b)); such qualified provider, resident manager or substitute caregiver must be on duty in the home 24 hours per day, along with staffing coverage that is adequate to meet the needs of residents (Tenn. Comp. R. & Regs. 1200-08-36-.04(7), 1200-08-36-.05(1)(d)).

[2] CHOICES Group 1 consists of individuals who are receiving TennCare-reimbursed care in a nursing facility. CHOICES Group 2 is composed of individuals age sixty-five and older and adults age twenty-one and older with physical disabilities who meet nursing facility level-of-care criteria, who qualify for TennCare under certain categories, and who need and are receiving CHOICES Home and Community Based Services as an alternative to nursing facility care. Tenn. Comp. R. & Regs. 1200-13-01-.02(22), (23).