Housing for Older Persons; Defining Significant Facilities and Services; Proposed Amendments

SUMMARY: This proposed rule would implement section 919 of the Housing

and Community Development Act of 1992. Section 919 requires the

Secretary of HUD to issue ``rules defining what are `significant

facilities and services especially designed to meet the physical or

social needs of older persons' required under section 807(b)(2) of the

Fair Housing Act to meet the definition of the term `housing for older

persons' in such section.'' This proposed rule would amend HUD's

regulations governing ``housing for older persons'', to provide the

definitions required by section 919.

DATES: Comments due date: May 15, 1995.

ADDRESSES: Interested persons are invited to submit comments regarding

this proposed rule to the Office of the General Counsel, Rules Docket

Clerk, Room 10276, Department of Housing and Urban Development, 451

Seventh Street, SW., Washington, DC 20410-0500. Communications should

refer to the above docket number and title and to the specific sections

in the regulation. Facsimile (FAX) comments are not acceptable. A copy

of each communication submitted will be available for public inspection

and copying during regular business hours at the above address.

FOR FURTHER INFORMATION CONTACT: Sara K. Pratt, Office of

Investigations, Office of Fair Housing and Equal Opportunity, Room

5204, U.S. Department of Housing and Urban Development, 451 Seventh

Street, SW., Washington, DC 20410-0500, telephone (202) 708-0836.

Hearing or speech-impaired individuals may call HUD's TDD number (202)

708-0113, or 1-800-877-8399 (Federal Information Relay Service TDD).

(Other than the ``800'' number, these are not toll-free numbers.)

SUPPLEMENTARY INFORMATION:

I. Background

A. The Significant Facilities and Services Requirement

The Fair Housing Act (Title VIII of the Civil Rights Act of 1968,

as amended by the Fair Housing Amendments Act of 1988, 42 U.S.C. 3601-

19) (the Act) exempts ``housing for older persons'' from the

prohibitions against discrimination because of familial status.

Specifically, section 807(b)(2)(C) of the Act exempts housing intended

and operated for occupancy by at least one person 55 years of age or

older per unit that satisfies certain criteria. The purpose of the

prohibition against discrimination on the basis of familial status and

the ``housing for older persons'' exemption is to protect families with

children from discrimination in housing without unfairly limiting

housing choices for elderly persons (see 134 Cong. Rec. S 19722 (Aug.

1, 1988) statement of Senator Karnes).

The Department has implemented the housing for older persons

exemption at 24 CFR part 100, subpart E. Congress mandated that, in

determining whether housing qualifies as housing for persons 55 years

of age or older, the Secretary develop regulations which require at

least the following factors:

(1) The existence of significant facilities and services

specifically designed to meet the physical or social needs of older

persons, or if the provision of such facilities is not practicable,

that such housing is necessary to provide important housing

opportunities for older persons; and

(2) that at least 80 percent of the units are occupied by at least

one person 55 years of age or older per unit; and

(3) the publication of, and adherence to, policies and procedures

which demonstrate an intent by the owner or manager to provide housing

for persons 55 years of age or older.

Section 919 of the Housing and Community Development Act of 1992

(Pub. L. 102-550, approved October 28, 1992), requires the Secretary of

HUD to issue a rule further defining what are ``significant facilities

and services especially designed to meet the physical or social needs

of older persons'' required under section 807(b)(2) of the Fair Housing

Act to meet the definition of the term ``housing for older persons.''

B. The July 7, 1994 Proposed Rule

On July 7, 1994 (59 FR 34902) the Department published for public

comment a proposed rule intended to implement section 919 of the

Housing and Community Development Act of 1992. Customarily proposed

rules provide for a 60-day public comment period. However, in order to

ensure broad public input into the rulemaking process, the Department

granted a 90-day comment period. As the October 5, 1994 public comment

deadline approached it became clear to the Department that there was

significant public interest in the proposed rule. On September 26, 1994

(59 FR 49035), the Department extended the comment period to November

30, 1994.

The Department also scheduled public meetings to hear from those

affected by the proposed rule. Five such meetings were held across the

country: Fontana, California on August 15, 1994; Tampa, Florida on

August 25, 1994; Phoenix, Arizona on September 29, 1994; Washington, DC

on October 6, 1994 and; Spokane, Washington on November 17, 1994.

Transcribed records of these meetings were prepared and made part of

the public comment docket.

The July 7, 1994 proposed rule was of great interest to many

seniors. By close of business on November 30, 1994, 15,219 comments had

been received. Based on the written comments received on the proposed

rule, and the comments received at the five public meetings, the

Department decided to make significant changes to the July 7, 1994

proposed rule.

On December 12, 1994 (59 FR 64104), the Department published a

notice in the Federal Register announcing it would not proceed to final

rulemaking on the July 7, 1994 proposed rule. Instead, as a result of

the significant changes to the July 7, 1994 rule, the Department is

issuing this new proposed rule, which addresses the issues raised by

the commenters and solicits additional public comment.

II. Overview of Proposed Rule

Like the July 7, 1994 rule, this proposed rule would implement the

rulemaking required by section 919 of the Housing and Community

Development Act of 1992. Specifically, this proposed rule would revise

the 55-or-over housing currently set forth in Sec. 100.304(b)(1). A new

Sec. 100.305 would be added and would address the standards housing

providers must meet in order to qualify as 55-or-over housing. A new

Sec. 100.306 would be added and would address the requirement for

``significant facilities and services specifically designed to meet the

physical or social needs of [[Page 13841]] older persons.''1 A new

Sec. 100.307 would be added and would set forth the standards for

housing providers choosing to self-certify their compliance with the

Act's requirements. In addition to adding these three sections, the

substance of existing Sec. 100.304(b)(2) would be amended and located

in new Sec. 100.310. Existing subsection Sec. 100.304(e) would be

deleted and existing subsections Secs. 100.304(c)(1) and 100.304(d)

would be amended and provide the substance of new Sec. 100.315.

Existing subsection Sec. 100.304(c)(2) would be amended and

redesignated as new Sec. 100.316.

\1\ The language of section 919 contains the word

``especially'': ``* * * rules defining what are `significant

facilities and services especially designed to meet the physical or

social needs of older persons' required under section 807(b)(2) of

the Fair Housing Act to meet the definition of the term `housing for

older person' in such section.'' (emphasis added) This proposed rule

uses the word ``specifically'' rather than the word ``especially''

to comply with congressional intent and reflect the actual language

of section 807(b)(2) of the Fair Housing Act.

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The Department recognizes that the majority of seniors are healthy

and lead active and independent lives. In developing this proposed

regulation, the Department has rejected the assumption that all

residents of senior housing are frail or disabled. This proposed rule

does not require that a facility or service be accessible to the

disabled in order to be classified as ``significant'' or ``specifically

designed to meet the physical or social needs of older persons.''

Neither does this proposed regulation require that a housing provider

furnish congregate dining areas, nursing services, or expensive and

unwanted facilities to qualify for the housing for older persons

exemption.

In developing this proposed regulation, the Department desires to

provide as much certainty as possible regarding the determination that

housing qualifies as housing for older persons. It has sought to

structure the regulations to allow both housing providers and protected

classes alike to ascertain with confidence whether a community

qualifies under the Act.

Proposed Sec. 100.306 sets forth a diverse ``menu'' of facilities

and services which a community may choose to provide. The facilities

and services are listed under twelve broad categories (e.g. Social

Needs, Leisure Needs, Educational Needs). In order to qualify as 55-or-

over housing, the community must provide at least two facilities or

services from five of the categories, for a total of at least ten

facilities or services. Both facilities and services must be provided.

Once a community has met the requirements of proposed Sec. 100.306,

a new Sec. 100.307 would permit the community to self-certify that it

qualifies under the Act. Absent evidence to the contrary, the

Department will assume that those communities which have chosen to

self-certify are in compliance with the Act's requirements.

However, the Department does not wish to provide certainty in

complying with the requirements of the Act at the expense of

flexibility. The Department has concluded that a flexible standard is

necessary in order to reflect regional variations in services and

facilities that distinguish housing for older persons from other

similar housing, as well as variations determined by the geography of

the site or by the differences in the nature or cost of the housing in

question. The Department believes that the ``menu'' set forth in

proposed Sec. 100.306 is sufficiently broad to accommodate regional

differences in the need for facilities and services.

In addition, the Department recognizes that housing for older

persons is not limited to the affluent. Therefore, Sec. 100.306's menu

includes many facilities and services which are not costly and may be

provided by volunteers. Furthermore, the proposed rule allows

facilities and services to be provided away from the housing premises,

so long as there is sufficient transportation to ensure that the off-

premise facility or service is truly accessible to the community

residents.

As is the case with other exemptions to civil rights statutes and

other exemptions under the Act, the burden of demonstrating that the

``older persons'' exemption applies rests on the party asserting the

exemption. Part of that party's burden in establishing qualification

for the exemption requires affirmatively demonstrating through credible

and objective evidence that the requirements for the exemption exist as

of the date of an alleged violation of the Act. The Department believes

that the Act imposes a strict burden upon a person claiming the

exemption to provide credible and objective evidence showing that the

facilities and services offered by the housing provider were designed,

constructed or adapted to meet the particularized needs of older

persons. In order to be considered as sufficient to qualify a housing

facility for the exemption, the evidence must show that the housing in

question is clearly distinguished from the bulk of other housing

(except for other older persons housing) in a particular area, by the

existence of those facilities and services which set the housing

facility apart as housing intended for and operated as housing for

older persons. Without such evidence, the familial status prohibitions

of the Act will apply. However, absent evidence to the contrary, the

Department will assume that communities which have chosen to self-

certify under proposed Sec. 100.307 are in compliance with the Act's

requirements.

III. Proposed Amendments

New Sec. 100.305--Criteria

New Sec. 100.305 proposes to establish the criteria by which a

community will be determined to qualify under the ``housing for older

persons'' exemption to the Act's requirements.

New Sec. 100.306--Significant Facilities and Services Specifically

Designed for Older Persons

New Sec. 100.306 proposes to set forth the standards by which to

ascertain whether a facility or service is ``significant'' or is

``specifically designed to meet the physical or social needs of older

persons.'' New Sec. 100.306 sets forth a ``menu'' of facilities and

services a housing provider may choose to furnish. A housing provider

which provides ten items from the menu (two items from five of the menu

categories), is deemed to be in compliance with the Act's requirements.

New Sec. 100.307--Self Certification

New Sec. 100.307 sets forth the requirements for those communities

which choose to self-certify their compliance with the Act. Absent

evidence to the contrary, the Department will assume that a community

that has elected to self-certify qualifies as 55-or-over housing.

New Sec. 100.310--Impracticability

Existing Sec. 100.304(b)(2), which would be redesignated as new

Sec. 100.310, would be revised by adding the following language as the

introductory text to the current provisions contained in paragraph

(b)(2):

The provisions regarding familial status in this part shall not

apply to housing intended and operated for occupancy by at least one

person 55 years of age or older per unit, provided that the person

or entity affirmatively proves through credible and objective

evidence that the housing satisfies the requirements of

Secs. 100.305, 100.306, 100.315 and 100.316 or 100.310, 100.315 and

100.316. Housing satisfies the requirements of Sec. 100.310 if * * *

New Sec. 100.315--80 percent occupancy

Existing Sec. 100.304(e) would be deleted and existing

Secs. 100.304(c)(1) and 100.304(d) would be combined as

[[Page 13842]] new Sec. 100.315. The following language would be added

to the new Sec. 100.315:

The provisions regarding familial status in this part shall not

apply to housing intended and operated for occupancy by at least one

person 55 years of age or older per unit, provided that the person

or entity affirmatively proves through credible and objective

evidence that the housing satisfies the requirements of

Secs. 100.305, 100.306, 100.315 and 100.316 or 100.310, 100.315 and

100.316. Housing satisfies the requirements of this Sec. 100.315 if

* * *

Additionally, there is also new language further describing how a

housing provider may meet the 55-or-over exemption if it does not have

80 percent of its units occupied by at least one person who is 55 and

older.

New Sec. 100.316--Intent to Provide Housing for Older Persons

Existing Sec. 100.304(c)(2), which would be redesignated as new

Sec. 100.316, would be revised by adding the following language as the

introductory text to new Sec. 100.316:

The provisions regarding familial status in this part shall not

apply to housing intended and operated for occupancy by at least one

person 55 years of age or older per unit, provided that the person

or entity affirmatively proves through credible and objective

evidence that the housing satisfies the requirements of

Secs. 100.305, 100.306, 100.315 and 100.316 or 100.310, 100.315 and

100.316. Housing satisfies the requirements of Sec. 100.316 if * * *

With respect to the use of age verification procedures, while the

Department does not require the use of any particular type of age

verification, nor does it require the use of age verification

procedures at all, if such procedures are utilized, they must be

reliable and consistently utilized.

IV. Other Matters

A. Environmental Impact

A Finding of No Significant Impact with respect to the environment

has been made in accordance with HUD regulations at 24 CFR part 50,

which implements section 102(2)(C) of the National Environmental Policy

Act of 1969 (NEPA). This Finding of No Significant Impact is available

for public inspection between 7:30 a.m. and 5:30 p.m. weekdays in the

Office of the Rules Docket Clerk, Office of the General Counsel,

Department of Housing and Urban Development, Room 10276, 451 Seventh

Street, SW., Washington, DC 20410-0500.

B. Executive Order 12866

This proposed rule was reviewed by the Office of Management and

Budget (OMB) under Executive Order 12866 on Regulatory Planning and

Review, issued by the President on September 30, 1993. Any changes made

in this proposed rule as a result of that review are clearly identified

in the docket file, which is available for public inspection in the

office of the Department's Rules Docket Clerk, Room 10276, 451 Seventh

Street, SW., Washington, DC 20410-0500.

C. Impact on Small Entities

The Secretary, in accordance with the Regulatory Flexibility Act (5

U.S.C. 605(b)), has reviewed this proposed rule before publication and,

by approving it, certifies that the proposed rule will not have a

significant impact on a substantial number of small entities. The

proposed rule would implement section 919 of the Housing and Community

Development Act of 1992, which requires the Secretary of HUD to further

define the term ``significant facilities and services specifically

designed to meet the physical or social needs of older persons.'' The

Department anticipates that the proposed rule will have an impact on

some small housing providers. However, the number of small housing

providers affected is not considered to be so great as to constitute a

significant economic impact on a substantial number of small entities.

D. Executive Order 12606, the Family

The General Counsel, as the Designated Official under Executive

Order 12606, The Family, has determined that this proposed rule does

not have potential for significant impact on family-formation,

maintenance, and general well-being, and, thus is not subject to review

under the Order.

E. Executive Order 12612, Federalism

The General Counsel, as the Designated Official under section 6(a)

of Executive Order 12612, Federalism, has determined that this proposed

rule would not have substantial, direct effects on States, on their

political subdivisions, or on their relationship with the Federal

government, or on the distribution of power and responsibilities among

the various levels of government. The Fair Housing Act, and section 919

of the Housing and Community Development Act of 1992 direct HUD to

provide further guidance on the meaning of significant facilities and

services so that States, local governments, and housing providers will

have a better understanding of what housing is exempt from the Fair

Housing Act's prohibition against discrimination on the basis of

familial status.

F. Regulatory Agenda

This proposed rule was listed as sequence 1860 in the Department's

Semiannual Regulatory Agenda, published on November 14, 1994 (59 FR

57632, 57637) under Executive Order 12866 and the Regulatory

Flexibility Act.

List of Subjects in 24 CFR Part 100

Aged, Fair housing, Individuals with disabilities, Mortgages,

Reporting and recordkeeping requirements.

Accordingly, 24 CFR part 100, subpart E, would be amended as

follows:

PART 100--DISCRIMINATORY CONDUCT UNDER THE FAIR HOUSING ACT

1. The authority citation for part 100 be revised to read as

follows:

Authority: 42 U.S.C. 3535(d) and 3600-3620.

Subpart E--Housing for Older Persons

2. In subpart E, Sec. 100.304 would be revised, and new

Secs. 100.305, 100.306, 100.307, 100.310, 100.315 and 100.316 would be

added, to read as follows:

Sec. 100.304 55 or over housing.

(a) The provisions regarding familial status in this part shall not

apply to housing intended and operated for occupancy by at least one

person 55 years of age or older per unit, provided that, at the time of

an alleged violation of the Act, the housing satisfies the requirements

of:

(1) Sections 100.304, 100.305, 100.306, 100.315 and 100.316; or

(2) Sections 100.310, 100.315 and 100.316.

(b) With reference to complaints filed pursuant to the Act, this

means that the person or entity claiming the exemption must

affirmatively prove by a preponderance of evidence as of the date of

the alleged violation of the Act that the housing meets the

requirements of paragraph (a) of this section.

(c) For purposes of this part, ``older persons'' means persons 55

years of age or older.

(d) For purposes of this part, ``housing provider'' means:

(1) The owner or manager of a housing facility; or

(2) The owner or manager of the common and public use areas of a

housing facility, where the dwelling units are individually owned.

(3) The term ``housing provider'' may include any person or entity

which operates a housing facility, including but not limited to

homeowner's associations or resident associations. [[Page 13843]]

(e) For purposes of this part, ``occupied by'' means one or more

persons over the age of 55 actually occupying a unit at the time of an

alleged violation of the Act and for at least 60 days in the preceding

365 day period.

(f) With reference to self-certifications of compliance with the

provisions of this part, the housing provider claiming the exemption

for 55 and older housing may demonstrate publicly, by the posting of

one of the notices described in Sec. 100.307, compliance with the

provisions of this part.

Sec. 100.305 Criteria.

(a) The provisions regarding familial status in this part shall not

apply to housing intended and operated for occupancy by at least one

person 55 years of age or older per unit, pursuant to this part.

(b) The housing shall have significant facilities and services

specifically designed to meet the physical or social needs of older

persons as described in Sec. 100.306.

(c) At least 80 percent of the units in the housing shall be

occupied by at least one person who is at least 55 years of age or

older as described in Sec. 100.315.

(d) The housing provider shall publish and adhere to policies and

procedures which demonstrate an intent by the housing provider to

provide housing for older persons as described in Sec. 100.316. The

publication of policies and procedures describing an intent to provide

housing as ``adult housing'' shall not suffice for this purpose.

Sec. 100.306 Significant facilities and services specifically designed

for older persons.

(a) The provisions regarding familial status in this part shall not

apply to housing intended and operated for occupancy by at least one

person 55 years of age or older per unit, provided that the person or

entity asserting the exemption affirmatively demonstrates through

credible and objective evidence that facilities and services

specifically designed to meet the needs of older persons are

``significant''. Significant facilities and services which are

specifically designed for older persons are those which actually or

predictably benefit the health, safety, social, educational or leisure

needs of older persons.

(b) The facilities and services provided by a housing provider are

significant and specifically designed to meet the housing needs of

older persons when the housing provider meets the criteria found in

paragraphs (c), (d), and (e) of this section and complies with the

criteria found in paragraph (f) of this section.

(c) A housing provider provides significant facilities and services

if it makes available, directly or indirectly, at least 2 facilities or

services of the facilities described in paragraph (d) of this section,

in paragraph (d)(10) of this section (category 10) or in paragraph

(d)(11) of this section (category 11).

(d) Facilities and services which may be considered for purposes of

qualifying for the 55 and older housing exemption are the following:

(1) Category #1 (Social Needs)

Social and Recreational Services provided on a regular, organized

basis

--softball, golf, shuffleboard tournaments, or similar team activity

--bridge club, card games, chess, checkers

--exercise classes--low-impact, stretching, tai-chi, swim-therapy

--bingo

--fellowship meetings

--musical theater group

--dances, square dancing, polka, ballroom dancing

--monthly or weekly potluck dinners, breakfasts, luncheons, coffees

--coordinated holiday parties for residents

--Lions club, clubs or classes for sewing, needlepoint, art,

gardening, music, books, golf, bowling, photography, travel, etc.

--cooking classes

--crafts classes: ceramics, macrame, woodworking, jewelry, quilting,

painting

--field trips--bowling, sightseeing, concerts, plays, hiking,

shopping outlets

--fashion shows

--on-site movies or other theatrical events

--liaison/coordination with activities at community-wide senior

centers and activities

--emergency meal service for residents who are ill or in need

--organized travel opportunities

(2) Category #2 (Educational Needs)

Continuing education activities

--at least monthly presentations on subjects such as health care,

nutrition, stress management, medicare, insurance, social security,

tax preparation, vacation planning, gardening, crime prevention

--consumer protection education

--regularly offered CPR classes

--regularly offered language study classes

--regularly offered videotapes on health care

--courses available at local educational institutions

(3) Category #3 (Educational Needs)

Information and counseling services

--providing new residents with package of information about local

services of interest to seniors

--bulletin board for exchange of information or services

--printed resident directory provided to each resident

--bus schedules

--free cable TV programs information to residents internal or

external support groups for residents

--seminars on the aging process, estate planning, dealing with death

or other issues affecting older persons

--on-site legal services

--informational sessions on fire safety, mental health issues,

political and environmental issues

--seminars on governmental benefits programs

(4) Category #4 (Physical Needs)

Homemaker services

--employees assist with housework or yardwork

--organized committee of residents to perform light household tasks

or yard work for those who cannot do them themselves

--referrals to housecleaning services

--bill-paying services

--pet care/pet therapy services

--minor home repair service

--tool loan service

(5) Category #5 (Safety Needs)

Outside maintenance/health and safety services

--on-staff medical personnel with first aid/CPR training

--on-staff repair, maintenance and painting services

--meals on wheels

--lawn care and grass cutting, shrubbery and tree trimming

--snow shoveling and plowing

--referrals to doctors or other health care professionals

--regular system to contact residents who are house-bound to make

sure they are o.k.

--referrals for transportation

--referrals to income tax preparer

--referrals to repair and maintenance services

--security guards/patrols, organizing neighborhood or block watch

--organizing committee of residents to do household repairs and yard

work for those who cannot do them themselves

--exterior lighting--alarm systems monitoring

--vacation house watch

--limited access to property by controlled access gate or similar

system

(6) Category #6 (Health Needs)

Emergency and preventative health care programs

--meetings about nutrition, back care, breast cancer/self-

examination/mammogram, prostate cancer screening, vision care, or

other health care topics (see continuing education)

--monthly blood pressure checks

--annual flu vaccine shots available

--periodic vision or hearing tests

--staff or volunteers pick up food from social services for mobility

impaired seniors

--organizing committees of residents to do errands for people who

become ill and/or to stay with sick persons while their spouses do

errands [[Page 13844]]

--emergency telephone network, staff or volunteers monitor people

who have serious medical problems

--doctor/medical facilities located within two miles of facility

--health care equipment pool for resident use

(7) Category #7 (Social/Health Needs)

Congregate dining

--available congregate dining for at least one meal each day

--sit-down service

--special menus for dietary needs

--activities conducted in conjunction with congregate dining

(8) Category #8 (Transportation)

Transportation to facilitate access to social services

--transportation provided to doctors' offices, shopping, religious

services, outside social or recreational activities

--public bus stop or train station within walking distance

--organized system to provide transportation for residents who

cannot drive

--sign-up board for shared transportation needs

--shared ride services to social events, functions, medical care,

shopping

(9) Category #9 (Social Needs)

Services to encourage and assist residents to use available

facilities and services

--volunteer or staff activity planner

--lifeguards, swimming or water aerobics instructors

--dance or exercise instructors

--crafts instructors

--newsletters, newspapers or flyers informing residents of

activities, trips, clubs, etc.

--monthly calendar of events

--resident council or committees to encourage participation in

activities

(10) Category #10 (Leisure Needs)

Social and Recreational Facilities

--clubhouse, communal kitchen, or communal dining area

--library with large print books or subscriptions to publications

targeted to older persons

--swimming pool, sauna or whirlpool

--recreation or game room, arts and crafts room, community room or

meeting room

--television room for communal use

--exercise equipment

--ping pong, pool tables, shuffleboard courts, horseshoe pits or

bocce ball (with functional equipment)

--golf course

--stage, piano and dance floor

--picnic area, picnic tables, barbecue grills

--woodworking shop

--restaurant for resident use

--bank

--lawyer's office

--travel agency

--convenience store

--barber shop

--dry cleaners

--hair salon

--lapidary

--kiln

--fishing pond

(11) Category #11 (Health/Safety Needs)

Accessible physical environment

--accessible clubhouse

--at least one accessible bathroom facility in public and common use

areas

--ramps (curbs or drainage ditches are cut to allow wheelchair/

walker access)

--ramped sidewalks in public and common use areas; stairs at a

minimum

--benches in public and common use areas

--assigned and designated parking spaces, including handicapped

parking

--accessible swimming pool (i.e., ramped entrance to pool area)

--accessible management office

--accessible dining area or activity area

--vans, buses available with wheelchair lifts or easy access for

persons with mobility difficulties

--lift to assist in swimming pool use

(12) Category #12 (Social, Leisure, Health, Safety or Educational

Needs)

Other

--Any facility or service which is not listed above but which is

designed to meet the health, safety, social or leisure needs of

persons who are 55 and older and which is actually available to and

used by residents of the property.

(e) A housing provider provides significant facilities and services

if the facilities and services are provided on the premises by paid

staff, resident volunteers, or by agencies, entities or persons other

than the housing provider. A housing provider provides significant

facilities and services if the facilities or services are provided off

the premises by paid staff, resident volunteers, or by agencies,

entities or persons other than the housing provider on the premises of

the housing or off the premises, provided that if facilities or

services are made available off the premises, the housing provider,

through paid staff, resident volunteers, or by agencies, entities or

persons other than the housing provider, shall make available

transportation services or coordination of information and

transportation resources which ensure that residents are aware of and

have ready access to such facilities or services.

(f) In determining whether a housing provider provides significant

facilities and services, the Department will evaluate each facility or

service that meets the requirements of Sec. 100.305 by the following

criteria to determine whether the facilities in the aggregate and the

services in the aggregate are ``significant'':

(1) The extent to which a facility or service can accommodate the

older population of the housing facility. The capacity of each facility

or service specifically designed to meet the physical or social needs

of older persons depends upon but is not limited to such factors as:

(i) The size of the facility in relationship to the scope of the

service offered;

(ii) The length of time during which the facility or service is

made available or the service is offered;

(iii) The frequency with which the facility or service is made

available or the service is offered; and

(iv) Whether the facility or service is offered only at one

location or there are a number of locations at which the facility is

made available or at which the service is offered.

(2) The extent to which the facility or service will be of benefit

to older persons, given the climate and physical setting of the housing

facility.

(3) The extent to which the facility or service is actually usable

by and regularly available to residents on a day-to-day basis.

Sec. 100.307 Self-Certification.

(a) A housing provider may indicate, by display of a notice

complying with this part, its intent to provide housing for older

persons in substantially the same form as that attached as Appendix 1

to this part.

(b) Such a notice shall be provided by the Department, and shall

include, at a minimum, a certification of compliance with Sec. 100.315

and an indication of the housing provider's intent to provide, and its

certification that it does in fact provide, facilities and services

which comply with Sec. 100.306.

(c) Such a notice shall be signed by one or more housing providers,

with authority to sign.

(d) Such a notice shall be signed under penalty of perjury of the

laws of the United States.

(e) Such a notice shall be posted in every public or common area

where housing transactions are conducted.

(f) A copy of a current self-certification shall be considered by

the Department to be sufficient evidence of compliance with the Act to

allow the publication of advertisements, notices or the making of other

statements as evidencing the operation of the property in question as

housing for older persons and as excluding families with children as

described in section 807(b)(2) of the Act, but not as conclusive

evidence of eligibility for the housing for older persons exemption.

Sec. 100.310 Impracticability.

(a) The provisions regarding familial status in this part shall not

apply to [[Page 13845]] housing intended and operated for occupancy by

at least one person 55 years of age or older per unit, provided that

the person or entity affirmatively demonstrates through credible and

objective evidence that the housing satisfies the requirements of

Secs. 100.305, 100.306, 100.315 and 100.316 or Secs. 100.310, 100.315

and 100.316. Housing satisfies the requirements of Sec. 100.310 if it

is not practicable to provide significant facilities and services

designed to meet the physical or social needs of older persons and the

housing facility is necessary to provide important housing

opportunities for older persons.

(b) In order to satisfy the requirements of Sec. 100.310 the

housing provider must affirmatively demonstrate through credible and

objective evidence that the provision of significant facilities and

services designed to meet the physical or social needs of older persons

would result in depriving older persons in the relevant geographic area

of needed and desired housing. The following factors, among others, are

relevant in meeting the requirements of Sec. 100.310:

(1) Whether the owner or manager of the housing facility has

endeavored to provide significant facilities and services designed to

meet the physical or social needs of older persons either by the owner

or by some other entity. Demonstrating that such services and

facilities are expensive to provide is not alone sufficient to

demonstrate that the provision of such services is not practicable.

(2) The amount of rent charged, if the dwellings are rented, or the

price of the dwellings, if they are offered for sale.

(3) The geographical or other physical limitations inherent in the

property which makes the provisions of facilities or services

impracticable.

(4) The income range of the residents of the housing facility.

(5) The demand for housing for older persons in the relevant

geographic area.

(6) The vacancy rate of the housing facility.

(7) The certification of 90 percent of the residents of the housing

facility that a particular category of facility or service is not

necessary or desired. Such certification shall be maintained as part of

the official records of the housing facility, be made available for

public inspection, and updated by certifications from new residents of

the housing facility.

(8) The availability of other similarly priced housing for older

persons in the relevant geographic area. If similarly priced housing

for older persons with significant facilities and services is

reasonably available in the relevant geographic area then the housing

facility does not meet the requirements of Sec. 100.310.

Sec. 100.315 80 percent occupancy.

(a) The provisions regarding familial status in this part shall not

apply to housing intended and operated for occupancy by at least one

person 55 years of age or older per unit, provided that the person or

entity demonstrates through credible and objective evidence that

housing satisfies the requirements of Secs. 100.305, 100.306, 100.315

and 100.316 or Secs. 100.310, 100.315 and 100.316. Housing satisfies

the requirements of Sec. 100.315 if at least 80 percent of the units in

the housing facility are occupied by at least one person 55 years of

age or older per unit except that a newly constructed housing facility

for first occupancy after March 12, 1989 need not comply with

Sec. 100.315 until 25 percent of the units in the facility are

occupied.

(b) Housing satisfies the requirements of this section even though:

(1) On September 13, 1988, under 80 percent of the occupied units

in the housing facility are occupied by at least one person 55 years of

age or older per unit, provided that at least 80 percent of the units

that are occupied by new occupants after September 13, 1988 are

occupied by at least one person 55 years of age or older.

(2) There are unoccupied units, provided that at least 80 percent

of the occupied units are occupied by at least one person 55 years of

age or over.

(3) There are units occupied by employees of the housing (and

family members residing in the same unit) who are under 55 years of age

provided they perform substantial duties directly related to the

management or maintenance of the housing.

(4) There are insufficient units occupied by at least one person 55

years of age or over to meet the 80 percent requirement, but the

housing provider, at the time the exemption is asserted:

(i) Reserves all unoccupied units for occupancy by at least one

person 55 years of age or older until at least 80 percent of the units

are occupied by at least one person who is 55 and older; and

(ii) Meets the requirements of:

(A) Sections 100.305, 100.306, 100.307, and 100.316; or

(B) Sections 100.310, 100.315, and 100.316.

(iii) Where application of the 80 percent rule results in a

fraction of a unit, that unit shall be considered to be included in the

units which must be occupied by at least one person who is 55 or older.

Sec. 100.316 Intent to provide housing for older persons.

(a) The provisions regarding familial status in this part shall not

apply to housing intended and operated for occupancy by at least one

person 55 years of age or older per unit, provided that the person or

entity proves that the housing satisfies the requirements of

Secs. 100.305, 100.306, 100.315 and 100.316 or Secs. 100.310, 100.315

and 100.316. Housing satisfies the requirements of Sec. 100.316 if the

owner or manager of a housing facility publishes and adheres to

policies and procedures which demonstrate an intent by the housing

provider to provide housing for persons 55 years of age or older.

(b) The following factors, among others, are relevant in

determining whether the owner or manager of a housing facility has

complied with the requirements of Sec. 100.316:

(1) The manner in which the housing facility is described to

prospective residents.

(2) The nature of any advertising designed to attract prospective

residents.

(3) Age verification procedures.

(4) Lease provisions.

(5) Written rules and regulations.

(6) Actual practices of the owner or manager in enforcing relevant

lease provisions and relevant rules or regulations.

(7) The public posting of the self-certification described in this

part.

3. Appendix 1 is added to part 100 to read as follows:

Appendix 1 to Part 100--Housing For Older Persons--Self-

Certification

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[[Page 13846]]

[GRAPHIC][TIFF OMITTED]TP14MR95.008

[[Page 13847]]

[GRAPHIC][TIFF OMITTED]TP14MR95.009

[[Page 13848]]

Dated: February 8, 1995.

Roberta Achtenberg,

Assistant Secretary for Fair Housing and Equal Opportunity.

[FR Doc. 95-5968 Filed 3-9-95; 2:57 pm]

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