[Federal Register Volume 60, Number 49 (Tuesday, March 14, 1995)]
[Proposed Rules]
[Pages 13840-13848]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-5968]
[[Page 13839]]
_______________________________________________________________________
Part IV
Department of Housing and Urban Development
_______________________________________________________________________
Office of the Assistant Secretary for Fair Housing and Equal
Opportunity
_______________________________________________________________________
24 CFR Part 100
Housing for Older Persons; Defining Significant Facilities and
Services; Proposed Rule
Federal Register / Vol. 60, No. 49 / Tuesday, March 14, 1995 /
Proposed Rules
[[Page 13840]]
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
Office of the Assistant Secretary for Fair Housing and Equal
Opportunity
24 CFR Part 100
[Docket No. R-95-1706; FR-3502-P-06]
RIN: 2529-AA66
Housing for Older Persons; Defining Significant Facilities and
Services; Proposed Amendments
AGENCY: Office of the Secretary for Fair Housing and Equal Opportunity,
HUD.
ACTION: Proposed rule.
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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
BILLING CODE 4210-28-P
[[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]
BILLING CODE 4210-28-C
