95-20222. Housing for Older Persons; Defining Significant Facilities and Services; Amendments  

  • [Federal Register Volume 60, Number 160 (Friday, August 18, 1995)]
    [Rules and Regulations]
    [Pages 43322-43333]
    From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
    [FR Doc No: 95-20222]
    
    
    
    
    [[Page 43321]]
    
    _______________________________________________________________________
    
    Part VII
    
    
    
    
    
    Department of Housing and Urban Development
    
    
    
    
    
    _______________________________________________________________________
    
    
    
    24 CFR Part 100
    
    
    
    Housing for Older Persons; Defining Significant Facilities and 
    Services; Amendments; Final Rule
    
    Federal Register / Vol. 60, No. 160 / Friday, August 18, 1995 / Rules 
    and Regulations 
    
    [[Page 43322]]
    
    
    DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
    
    Office of the Assistant Secretary for Fair Housing and Equal 
    Opportunity
    
    24 CFR Part 100
    
    [Docket No. FR-3502-F-08]
    RIN 2529-AA66
    
    
    Housing for Older Persons; Defining Significant Facilities and 
    Services; Amendments
    
    AGENCY: Office of the Assistant Secretary for Fair Housing and Equal 
    Opportunity, HUD.
    
    ACTION: Final rule.
    
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    SUMMARY: This final rule implements 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 final rule amends HUD's regulations governing ``housing 
    for older persons'', to provide the definitions required by section 
    919.
    
    EFFECTIVE DATE: September 18, 1995.
    
    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 March 14, 1995 Proposed Rule
    
        On March 14, 1995 (60 FR 13840), HUD published a rule which 
    proposed to implement section 919 of the Housing and Community 
    Development Act of 1992 (Pub. L. 102-550, approved October 28, 1992).
        The Fair Housing Act (Title VIII of the Civil Right 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 Act requires that the housing 
    facility provide ``significant facilities and services especially 
    designed to meet the physical or social needs of older persons.'' HUD 
    has implemented the ``housing for older persons'' exemption at 24 CFR 
    part 100, subpart E.
        Section 919 of the Housing and Community Development Act of 1992, 
    requires the Secretary of HUD to issue rules 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.'' The March 14, 1995 rule proposed to 
    amend subpart E to provide the definitions required by section 919. 
    Specifically, the rule proposed to create a new section establishing 
    the criteria for determining whether a facility or service is 
    ``significant'' or ``specifically designed to meet the physical or 
    social needs of older persons.'' 1 This proposed section set forth 
    a ``menu'' of facilities and services which a housing provider could 
    choose to furnish. Another proposed section permitted communities 
    selecting a requisite number and type of facilities and services from 
    the ``menu'' to ``self-certify'' their compliance with the Act. The 
    preamble to the March 14, 1995 proposed rule described in detail the 
    amendments to 24 CFR part 100, subpart E.
    
        \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 final 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 March 14, 1995 proposed rule was HUD's second attempt at 
    implementing the requirements of section 919. An earlier rule, 
    published on July 7, 1994 (59 FR 34902), also proposed to define 
    ``significant facilities and services.'' 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 
    five public meetings held across the country, HUD decided to make 
    significant changes to the July 7, 1994 proposed rule.
        On December 12, 1994 (59 FR 64104), HUD announced it would not 
    proceed to final rulemaking on the July 7, 1994 proposed rule. Instead, 
    HUD issued the March 14, 1995 proposed rule, which addressed the issues 
    raised by the commenters and solicited additional public comment.
    
    B. Discussion of Public Comments on the March 14, 1995 Proposed Rule
    
        The March 14, 1995 proposed rule was of significant interest to the 
    public. By the expiration of the public comment period on May 15, 1995, 
    1,080 comments had been received. The majority of commenters expressed 
    support for the proposed rule and urged its adoption without further 
    change. Most of these commenters thanked HUD for taking time to listen 
    to the concerns expressed by seniors over the July 7, 1995 proposed 
    rule. An extremely popular form letter, which comprised approximately 
    61% of the total comments received, read:
    
        I support the newly proposed rule on Significant Facilities and 
    Services for Housing for Older Persons under the Fair Housing Act. I 
    believe the needs of seniors in senior housing are fairly reflected 
    and supported in the flexibility of the new amendments. The new 
    regulations are simple, clear, and realistic. I appreciate HUD 
    staff's willingness to travel across the country and listen 
    compassionately to testimony. Thank you for responding positively to 
    the valid concerns of seniors and community leaders expressed in the 
    hearings.
    
        As a result of the positive public response, HUD has made very few 
    changes to the March 14, 1995 proposed rule. The following section of 
    the preamble presents a summary of the significant issues raised by the 
    public commenters on the proposed rule, and HUD's responses to these 
    comments.
    Preamble's Comparative Analysis Language
        Comment. Several commenters were opposed to the language in the 
    preamble to the proposed rule stating that in order to qualify as 55-
    or-over housing, ``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.'' (60 FR 13840, 
    13841). These commenters felt the language would make the proposed 
    self-certification mechanism meaningless. The commenters interpreted 
    this preamble language to mean that the existence of similar facilities 
    and services at family communities in the area would deny 55-or-over 
    status to a community which otherwise meets the 
    
    [[Page 43323]]
    ``menu'' requirements of proposed Sec. 100.306.
        HUD Response. HUD agrees that this preamble language may be 
    interpreted to negate the effectiveness of self-certification. 
    Accordingly, HUD wishes to emphasize that it is the existence, in the 
    aggregate, of at least ten requisite facilities and services from the 
    ``menu'' set forth in Sec. 100.306 which establishes a community as 55-
    or-over housing. This is true even if a particular facility or service 
    is also locally available at other types of housing.
    The Proposed Definition of ``Occupied By'' Was Unfair
        Comment. The definition of ``occupied by'' set forth in proposed 
    Sec. 100.306(e) required that units be occupied by a person 55 years of 
    age or over, not only at the time of the alleged violation, but ``at 
    least 60 days in the preceding year.'' Several commenters believed that 
    this proposed definition would impose unfair burdens on 55-or-over 
    communities in meeting the Act's 80 percent occupancy requirement. The 
    commenters pointed out that it is administratively difficult to 
    determine when property occupants come and go.
        HUD Response. HUD concurs with these commenters. HUD has revised 
    the definition of ``occupied by'' set forth in the March 14, 1995 
    proposed rule by eliminating the 60-day requirement. This final rule 
    defines ``occupied by'' to mean actual occupancy of a unit by one or 
    more persons over 55 years of age or older.
    Necessity of Age Verification Procedures
        Comment. Several commenters believed that the proposed rule 
    contained contradictory statements regarding the requirement of age 
    verification procedures. The preamble stated that HUD would ``not 
    require the use of age verification procedures.'' (60 FR 13840, 13842). 
    However, proposed Sec. 100.316, which discussed a provider's intent to 
    provide housing for older persons, included age verification procedures 
    in the non-exclusive list of factors HUD will utilize in determining 
    the existence of such intent. One commenter went so far as to suggest 
    that the final rule make age-verification procedures a requirement for 
    establishing intent.
        HUD Response. HUD has decided not to impose yet another federal 
    obligation on senior communities by requiring the use of age 
    verification procedures. The Act does not require that age verification 
    procedures be used. Proposed Sec. 100.316 merely stated that routine 
    use of age verification procedures is one way which a community may 
    indicate that it intends to be ``housing for older persons.''
        If a community decides to utilize age verification procedures, they 
    must comply with court established requirements. Specifically, the 
    procedures must be enforceable, objective, and consistently applied. 
    Age-verification records must be accurately maintained by the housing 
    provider. The age verification mechanism must provide for a review of 
    current residents, as well as of potential new residents. Furthermore, 
    the age verification procedures must require some form of independent 
    proof to confirm the age of the residents. Driver's licenses or copies 
    of birth certificates are two acceptable methods to confirm age.
        In sum, lease applications or other preliminary resident 
    documentation should include a request for age verification data. 
    Housing providers should make it clear to potential residents that the 
    request is made to ensure conformity with the community's policy of 
    maintaining the reliable records necessary for qualifying for the 
    ``housing for older persons'' exemption. Age verification data must be 
    confirmed through objective reliable means that at least one person who 
    will be occupying the property will be 55 years of age or older.
    Mandatory Continuation of Terminated Volunteer Services
        Comment. Several senior commenters, while supporting the proposed 
    rule's authorization of the use of off-site or volunteer services, 
    expressed worry that housing providers might not take steps to assure 
    the continued availability of these services. These seniors wish 
    housing providers to be required to locate an alternate means of 
    providing the volunteer services, if for some reason the current 
    services are discontinued.
        HUD Response. The March 14, 1995 proposed rule, and this final 
    rule, make the housing provider ultimately responsible for providing 
    the significant facilities and services. If volunteer provided 
    facilities and services are discontinued, the housing provider is 
    responsible for ensuring that replacement facilities or services are 
    provided, or the community will no longer qualify for the exemption. 
    HUD does not agree with the commenters that it should require housing 
    providers to continue specific volunteer services which have been 
    terminated. The particular volunteer facilities and services to be 
    provided are best determined by the housing provider and the residents.
    Definition of Housing Provider Not Sufficiently Broad
        Comment. Two commenters wrote to express their belief that the 
    proposed rule's definition of the term ``housing provider'' was not 
    broad enough to cover unincorporated communities comprised of 
    individual homeowners.
        HUD Response. The definition of ``housing provider'' set forth in 
    the March 14, 1995 proposed rule was intended to cover unincorporated 
    communities. This final rule contains a revised definition which 
    clarifies that single family communities may qualify for the exemption 
    through community groups which effectively represent the interests of 
    the residents. Specifically, the revised definition of ``housing 
    provider'' reads: ``The term housing provider includes any person or 
    entity which represents the property owners of a community in their 
    housing interests, including homeowners or resident associations, 
    whether or not there is common ownership or operation of any portion of 
    a community.''
    Revision of Impracticability Provisions
        Comment. Several commenters believed the impracticability 
    provisions set forth in proposed Sec. 100.310 should be revised. The 
    commenters objected to the statement in proposed Sec. 100.310(b)(1) 
    that ``[d]emonstrating that . . . services and facilities are expensive 
    to provide is not alone sufficient to demonstrate'' impracticability. 
    The commenters believed that this provision unfairly implied that 
    ``true'' senior communities are those that can afford to have a lot of 
    amenities.
        HUD Response. HUD does not agree with the commenters. The ``menu'' 
    established by Sec. 100.306(d) and the provisions of Sec. 100.306(e), 
    which permit volunteers to provide facilities and services, effectively 
    address the issue of cost, and will enable properties without large 
    financial resources to qualify for the exemption. It has never been 
    HUD's intention to require communities to provide expensive amenities 
    in order to meet the ``significant facilities and services'' 
    requirement. Moreover, Sec. 100.310(b)(4) lists the income range of the 
    residents as a factor in determining impracticability, allowing 
    evidence of lack of affordability of facilities or services to be 
    considered as part of an impracticability review. 
    
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    Proposed Rule's Impact on Small Entities
        Comment. Two commenters believed the March 14, 1995 proposed rule 
    reflected a harsh attitude toward small 55-or-over communities. 
    Specifically, the commenters felt that the ``menu'' set forth in 
    proposed Sec. 100.306 demonstrated a bias toward larger parks with 
    clubhouses and resident organizations. One of the commenters suggested 
    that communities with fewer than ``40 or 50 spaces'' be exempted from 
    the requirements of the final rule.
        HUD Response. HUD does not believe that any special exemptions are 
    required for small 55-or-over communities. The ``menu'' set forth in 
    Sec. 100.306 is sufficiently broad to ensure that small communities may 
    satisfy the ``significant facilities and services'' requirement without 
    undue burden or expense. HUD prepared the list of ``menu'' items by 
    reviewing suggestions made by the public commenters to the July 7, 1994 
    proposed rule, including the commenters at the five public hearings, as 
    well as by carefully reviewing court decisions dealing with this issue. 
    The ``menu'' is adequately diverse to cover all types of senior 
    properties.
    Proposed Rule Imposed an ``Accessibility'' Requirement
        Comment. One of the reasons for the strong opposition to the July 
    7, 1994 proposed rule was the belief among seniors that it erroneously 
    depicted all seniors as physically frail. In developing the March 14, 
    1995 proposed rule, HUD wished to correct this impression. Accordingly, 
    the preamble to the proposed rule stated that a facility or service 
    does not need to 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'.'' (60 FR 13840, 13841). 
    However, many senior commenters believed that the rule imposed an 
    accessibility requirement.
        Specifically, the commenters objected to the preamble language 
    stating that ``[t]he 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.'' (60 FR 13840, 13841). The 
    commenters believed that the requirement that housing providers select 
    two items from category 11, Health/Safety Needs, from the ``menu'' set 
    forth in proposed Sec. 100.306, was further proof of an accessibility 
    criterion for qualification as 55-or-over housing.
        HUD Response. The commenters misinterpret the language of the 
    preamble and the proposed rule. It is the existence of the requisite 
    number and type of ``menu'' items, in the aggregate, which qualifies a 
    community for the ``housing for older persons'' exemption. Elimination 
    of category 11 of the ``menu'' would unfairly discriminate against 
    communities which have chosen to provide any of the health/safety 
    related items listed in this category. Inclusion of such a category in 
    the ``menu'' does not imply that all seniors have difficulty with 
    mobility. It simply reflects the fact that some residents of 55-or-over 
    communities may desire the provision of several category 11 items to 
    facilitate their use and enjoyment of the property.
    Proposed Sec. 100.306(f) Undermined Self-Certification
        Comment. Proposed Sec. 100.306(f) listed the criteria by which HUD 
    will determine if, in the aggregate, the facilities and services 
    provided by a housing provider are ``significant.'' Several commenters 
    objected to this provision, claiming that a housing provider's self-
    certification would be undermined by the uncertainty of its compliance 
    with proposed Sec. 100.306(f).
        HUD Response. HUD does not believe that Sec. 100.306(f) subverts 
    the self-certification procedures set forth in Sec. 100.307. Rather, 
    the criteria listed in Sec. 100.306(f) provide assurance that housing 
    providers will not claim that they are eligible for the exemption based 
    on facilities or services which are virtually non-existent, non-
    functional or unused. Paragraph (f) of Sec. 100.306 is necessary to 
    assure that the facilities and services are truly available in a 
    meaningful way to residents.
    Self-Certification Should Not Be Made Under Penalty of Perjury
        Comment. Proposed Sec. 100.307(e) stated that a housing provider 
    shall sign a self-certification notice ``under penalty of perjury of 
    the laws of the United States.'' Several commenters believed that the 
    imposition of civil penalties was sufficient to penalize housing 
    providers posting false self-certification notices.
        HUD Response. HUD does not agree that Sec. 100.307(e) imposes an 
    unjust sanction on housing providers who falsify their self-
    certification notices. Absent evidence indicating that the housing 
    provider has not met the ``menu'' requirements of Sec. 100.306(c), a 
    housing provider who chooses to self-certify will be deemed by HUD to 
    be in compliance with the requirements of the Act. Given the force of a 
    posted self-certification notice, HUD believes it is justified in 
    requiring the high measure of certainty provided by the imposition of 
    perjury sanctions. Paragraph (f) of Sec. 100.307 obligates a housing 
    provider who has posted a self-certification notice to ensure that the 
    listed facilities and services are indeed available.
    The Self-Certification Posting Requirements Should Be Revised
        Comment. One commenter believed the posting requirements for the 
    self-certification notice should be clarified. Proposed Sec. 100.307(e) 
    required that a copy of the self-certification notice be posted ``in 
    every public or common area where housing transactions are conducted.'' 
    The commenter felt that some housing providers might have difficulty 
    complying with this requirement. For example, in the case of homeowner 
    associations where all developer sales have been completed, the only 
    sales are by individuals, not by the association or a developer. In 
    these instances, there are no common areas where ``housing 
    transactions'' occur.
        HUD Response. HUD has not revised Sec. 100.307(e). Paragraph (e) of 
    Sec. 100.307 simply requires that the self-certification notice be 
    posted in every area where housing transactions are conducted. In some 
    instances, this may require that the notice be posted in the unit 
    itself, or at the real estate office handling the listing of the 
    property.
    Revision of the Self-Certification Notice
        Comment. One commenter suggested several revisions to the posted 
    self-certification notice in order to make it more comprehensible. For 
    example, the commenter suggested that a larger typeface notice might be 
    easier to read for those seniors requiring eye-glasses.
        HUD Response. HUD will consider formatting suggestions from the 
    public before printing copies of the self-certification notice for 
    distribution. However, nothing prevents a housing provider from 
    enlarging the self-certification notice and posting the larger version, 
    or otherwise making it available to residents and the public in 
    alternative formats.
    Proposed Sec. 100.307(f) Undermined Self-Certification
        Comment. Many commenters objected to proposed Sec. 100.307(f), 
    which stated that self-certification notices will not be considered 
    ``conclusive evidence of eligibility for the housing for older persons 
    exemption.'' To many commenters this provision eliminated the main 
    reason for self-certification, 
    
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    which is to relieve the anxiety older persons feel that they may be 
    violating the law. One of the commenters suggested slightly revising 
    proposed Sec. 100.307(f) so as to make the provision less offensive to 
    seniors. According to this commenter, the ``not conclusive'' phrase 
    should be replaced by a reiteration of HUD's authority to investigate 
    fair housing complaints.
        Other commenters urged the elimination of the ``not conclusive'' 
    phrase and the insertion of new language strengthening the effect of 
    the self-certification notice. Specifically, these commenters believed 
    the self-certification notice should shift the burden of proof to 
    complainants during fair housing investigations regarding 55-or-over 
    status.
        HUD Response. HUD agrees with the commenters that the ``not 
    conclusive'' phrase may be misinterpreted by the public so as to 
    undermine the certainty provided by a self-certification notice. 
    Accordingly, HUD has revised Sec. 100.307(f) by removing the ``not 
    conclusive'' phrase and replacing it with the statement that ``the 
    posting of a self-certification notice will not preclude the Department 
    from investigating a complaint of alleged housing discrimination where 
    there is evidence that the housing provider fails to comply with the 
    self-certification.''
        HUD wishes to emphasize that the purpose of the self-certification 
    mechanism is to provide certainty to 55-or-over communities, not to 
    insulate them from legitimate HUD fair housing investigations. HUD may 
    receive information which suggests that a community does not meet the 
    Act's 80 percent occupancy requirements, or that the self-certification 
    notice is incorrect. In these situations, HUD's investigation will 
    focus initially on the housing provider's own assurances, through the 
    posted self-certification notice, that the requisite facilities and 
    services are provided. If the significant facilities and services 
    listed in the self-certification notice are actually provided and 
    serving the community, the housing provider should not anticipate any 
    difficulties in qualifying for that portion of the exemption. 
    Additionally, if the provider furnishes facilities and services which 
    are not listed on the a self-certification notice (or if no self-
    certification notice is posted) HUD will still consider all available 
    evidence regarding what facilities and services were available at the 
    time of the alleged discriminatory incident.
        HUD wishes to emphasize that nothing in this regulation changes the 
    requirement, set forth by the courts and administrative law judges, 
    that in a judicial or administrative proceeding, the housing provider 
    bears the burden of ultimately proving its eligibility for any 
    exemption under the Act by a preponderance of the evidence.
    Proposed Exemptions to 80% Occupancy Requirement Exceed Legal Authority
        Comment. Section 807(b)(2)(C)(ii) of the Act, which HUD is 
    implementing in Sec. 100.315, requires ``that at least 80 percent of 
    the units are occupied by at least one person 55 years or older per 
    unit.'' Paragraph (b)(2) of proposed Sec. 100.315 permitted housing 
    with unoccupied units to meet the 80 percent occupancy test, so long as 
    ``at least 80 percent of the occupied units [were] occupied by at least 
    one person 55 years of age or over.'' One commenter believed this 
    provision contradicted the explicit language of the Act and suggested 
    that providers claiming the exemption based on Sec. 100.315(b)(2) be 
    required to reserve all units for occupancy by a person 55 years of age 
    or older.
        Furthermore, paragraph (b)(4) of proposed Sec. 100.315(b)(4) 
    permitted housing with an insufficient percentage of units occupied by 
    older persons to meet the 80 percent test, so long as the housing 
    ``reserve[d] all unoccupied units for occupancy by at least one person 
    55 years of age or older until at least 80 percent of the units [were] 
    occupied'' by older persons. Another commenter objected to this 
    provision, as well as to proposed Sec. 100.315(b)(2), on the grounds 
    that the Act's 80 percent occupancy requirements should be strictly 
    construed. The commenter believed that any exceptions to the 80 percent 
    occupancy requirements set forth in the Act were meant by Congress to 
    apply solely to housing occupied before the Act's effective date.
        HUD Response. The Act provides that a property ``shall not fail to 
    meet the requirements for housing for older persons by reason of * * * 
    (B) unoccupied units. * * *'' (42 U.S.C 3607). HUD believes it is 
    justified in interpreting the Act to allow a community which, although 
    it does not currently meet the 80 percent occupancy requirement, 
    reserves all unoccupied units for occupancy by a person 55 years of age 
    or older. This may be the only way for a community which believed that 
    it was ineligible for ``housing for older persons'' status, and which 
    has therefore permitted occupancy by families, to qualify for the 
    exemption. There is no support for the commenter's assertion that this 
    provision of the Act is limited to situations occurring before the 
    Act's effective date. HUD believes that housing which seeks to qualify 
    as ``housing for older persons'' should be able to do so, even if its 
    occupied units do not meet the 80 percent occupancy test. Furthermore, 
    HUD believes such housing should be protected against claims of 
    unlawful discrimination during the qualification process, so long as it 
    provides significant facilities and services, has the requisite intent, 
    and has reserved all unoccupied units for at least one resident 55 
    years of age or older.
    Proposed Sec. 100.310(b)(7) Violated Statutory Authority
        Comment. Section 100.310 permitted the granting of a waiver to 
    housing providers in cases where it would be impracticable to furnish 
    ``significant facilities and services.'' Proposed Sec. 100.310(a) 
    required that the persons seeking a waiver also demonstrate ``that such 
    housing is necessary to provide important housing opportunities for 
    older persons.'' Proposed Sec. 100.310(b)(7) would have accorded 
    residents' preferences a weight in the waiver determination. If ``90 
    percent of the residents of the housing'' had stated that a facility or 
    service was ``not necessary or desired'', this certification would have 
    been relevant as to whether the provider could have claimed an 
    impracticability waiver to the Act's requirements. One commenter felt 
    proposed Sec. 100.310(b)(7) would have exceeded HUD's authority under 
    the Act. The commenter pointed out that the proposed rule would have 
    permitted residents to legitimize discriminatory preferences.
        HUD Response: HUD agrees with the commenter. Upon further analysis, 
    HUD has determined that individual residents should not be authorized 
    by regulation to waive the rights of future residents, or the rights of 
    families with children, by voting on the necessity or desirability of a 
    facility or service. Accordingly, proposed Sec. 100.310(b)(7) has been 
    eliminated.
    Items Listed in Proposed Sec. 100.306 Were Not Significant
        Comment. Many of the commenters believed that the ``menu'' set 
    forth in proposed Sec. 100.306 did not list facilities and services 
    that were ``significant'' or ``specifically designed for the physical 
    or social needs of older persons.'' One of these commenters believed 
    that with almost no effort, most properties could qualify under the 
    March 14, 1995 proposed rule. Since the commenters believed that the 
    requirements of Sec. 100.306 could be easily met, they feared that 
    unscrupulous housing 
    
    [[Page 43326]]
    providers would utilize the rule to disguise their unlawfully 
    discriminatory policies against families with children. These 
    commenters also believed that proposed Sec. 100.306 could possibly be 
    in violation of existing case law, which states that the ``significant 
    facilities and services'' requirement is not met by merely adding minor 
    amenities to a traditional development.
        HUD Response. The commenters erroneously focus on the individual 
    items listed in Sec. 100.306(d). It is the existence, in the aggregate, 
    of the requisite number and type of ``menu'' items that satisfies the 
    ``significant facilities and services'' requirement. However, in the 
    development of this final rule, HUD made the determination that some 
    minor revisions to the list of ``menu'' items were necessary. This 
    final rule includes these changes.
    Self-Certification May Violate Existing Law
        Comment. Proposed Sec. 100.307 permitted housing providers which 
    met the requirements of proposed Sec. 100.306 to self-certify their 
    compliance with the Act's requirements. Several commenters expressed 
    doubts as to the legality of this self-certification mechanism. Some 
    commenters believed proposed Sec. 100.307 established a licensing 
    procedure unauthorized by Congress.
        These commenters also noted an apparent inconsistency in the 
    proposed rule's language regarding self-certification. The language of 
    proposed Sec. 100.307 suggested a limited effect for the self-
    certification, namely the authorization of ``the publication of 
    advertisements, notices or the making of other statements'' necessary 
    to establish the property as 55-or-over housing. The preamble, on the 
    other hand, indicated greater significance for the self- certification, 
    stating that ``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.'' (60 FR 13840, 13841). The 
    commenters feared that this inconsistency meant HUD intended to shift 
    the burden of proof to complainants to show that the housing met the 
    exemption requirements. In such a case, the preamble language would 
    have exceeded statutory authority, the Act's legislative history, and 
    case-law.
        These commenters believed that as an alternative to self-
    certification, HUD should certify the 55-or-over housing. The 
    commenters believed that only HUD or substantially equivalent state 
    agencies could provide meaningful certification of a community's exempt 
    status. These commenters suggested that at the very least HUD require 
    periodic updates of the self-certification notices.
        HUD Response. HUD has not revised the proposed rule as a result of 
    these comments. The rule's self-certification mechanism allows 
    communities to determine with certainty whether they comply with the 
    ``significant facilities and services'' requirement. The posting of a 
    self-certification notice merely identifies for the public those 
    facilities and services on which the provider bases its claim of 
    eligibility for that portion of the ``housing for older persons'' 
    exemption. Self-certification is not, nor was it intended to be, a de-
    facto licensing procedure.
        There was no inconsistency between the language of the proposed 
    rule and the preamble. Absent evidence that the posted self-
    certification notice is incorrect, HUD will assume that housing 
    providers which have chosen to self-certify are in compliance with the 
    Act. However, HUD will still be required to conduct an investigation 
    when it is provided with information which indicates that the 
    assertions in the self-certification are incorrect or that the property 
    otherwise does not qualify for the ``housing for older persons'' 
    exemption. This rule does not modify in any way the fact that housing 
    providers bear the burden of proving their compliance with the Act's 
    requirements during a judicial or administrative enforcement 
    proceeding.
        HUD rejects the commenters' suggestion that HUD certify each 
    property seeking to qualify as housing for older persons. In addition 
    to the fact that such a procedure would be intrusive and involve HUD in 
    the day to day operations of non-federal housing, HUD neither has the 
    resources nor the desire to inspect the many properties which might 
    claim the exemption. Moreover, a HUD-certification procedure might be 
    construed as a de-facto licensing mechanism, which is beyond the scope 
    of HUD's authority under the Act.
        While this final rule does not require periodic reviews of self-
    certification notices, HUD agrees that it is both sensible and 
    necessary for housing providers to periodically update such notices. 
    These reviews would prevent the filing of fair housing complaints from 
    persons claiming the assertions in the posted self-certification notice 
    are false.
    Self-Certification Is Misleading and Will Deter Legitimate Complaints
        Comment. Some commenters noted that the posting of a self-
    certification notice would not preclude a legal challenge to the 
    housing community's status as 55-or-over housing. However, these 
    commenters believed that the language of proposed Sec. 100.307 would 
    lead some communities to believe that self-certification immunizes them 
    from such complaints. The commenters felt that the proposed rule's 
    language was misleading and could fuel anti-government sentiment. These 
    commenters felt that self-certification was ``bad public policy.''
        The commenters found another possibility for confusion in the 
    language of proposed Sec. 100.307(f), which permitted housing providers 
    which have self-certified to advertise, post notices, or make other 
    statements ``evidencing the operation of the property in question . . . 
    as excluding families with children as described in section 807(b)(2)of 
    the Act.'' The commenters pointed out that this language might be 
    incorrectly interpreted to suggest that the exclusion of children is 
    required by the ``housing for older persons'' exemption.
        Furthermore, these commenters feared that a prominently displayed, 
    ``official looking'' self-certification notice would deter families 
    from pursuing legitimate fair housing complaints.
        HUD Response. The easy answer to the commenters' ``self 
    certification is bad public policy'' argument is the fact that the vast 
    majority of the commenters applauded HUD's inclusion of a self-
    certification mechanism in the March 14, 1995 proposed rule. HUD 
    rejects the notion that self-certification will lead housing providers 
    to believe they are ``immunized'' from legitimate fair housing 
    complaints.
        HUD reiterates that the purpose of the self-certification 
    provisions is to permit communities to ascertain with confidence 
    whether they comply with the Act's requirements, not to insulate them 
    from HUD investigations of legitimate complaints. A posted self-
    certification notice is only as good as the facts which underlie it. It 
    is necessary for 55-or-over communities to periodically update the 
    self-certification notices in order for them to have the desired 
    certainty in case a complaint is filed.
        The commenters were correct in asserting that the Act does not 
    require the exclusion of children from housing for older persons. 
    Additionally, the Act does not mandate that 100 percent of senior-
    housing residents be 55 years of age or older. HUD wishes to emphasize 
    that a qualified 55-or-over community may permit the remaining 20 
    percent of units to be occupied by persons under 55; allow some small 
    number of families 
    
    [[Page 43327]]
    with children to reside in the property; and allow some number of units 
    to be occupied by surviving spouses, or heirs of a senior resident. 
    However, the general intent to be classified as ``housing for older 
    persons'' must be continued, as should careful record keeping, to 
    ensure that the community does not drop below the 80 percent occupancy 
    requirement and to ensure that the requisite intent to be housing for 
    older persons is indicated.
    Self-Certification Has Federalism Implications
        Comment. One commenter wrote that the easily met requirements of 
    proposed Sec. 100.306 posed a danger to individual property rights. The 
    commenter believed that the proposed rule would allow some, but not 
    all, of the homeowners of a tract or development, without any common 
    interests or privity, to organize an association and restrict free 
    alienation of the property of the nonmembers.
        HUD Response. HUD does not agree with the commenter. The courts 
    have upheld the constitutionality of the ``housing for senior persons'' 
    exemption against claims that it amounted to a deprivation of property 
    rights. See Senior Civil Liberties Association v. Kemp, 965 F.2d 1030 
    (11th Cir. 1992). This final rule merely authorizes a housing provider 
    to undertake certain actions in order to qualify for the exemption. The 
    rule's self-certification provision has no more impact on Federalism 
    issues than does the exemption itself.
    
    II. 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 final 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 
    final 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 final rule before publication and, by 
    approving it, certifies that the final rule will not have a significant 
    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 final 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 final 
    rule will 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 final rule was listed as sequence number 1504 in the 
    Department's Semiannual Regulatory Agenda, published on May 8, 1995 (60 
    FR 23368, 23373) 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 is amended as follows:
    
    PART 100--DISCRIMINATORY CONDUCT UNDER THE FAIR HOUSING ACT
    
        1. The authority citation for part 100 is 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 is revised, and new Secs. 100.305, 
    100.306, 100.307, 100.310, 100.315 and 100.316 are 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 an 
    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. The term ``housing provider'' 
    includes any person or entity which represents the property owners of a 
    community in their housing interests, including homeowners or resident 
    associations, whether or not there is common ownership or operation of 
    any portion of a community.
        (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.
        (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 
    
    [[Page 43328]]
    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 in at least five categories described in paragraph (d) of this 
    section, including at least 2 of the facilities described 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, lawn bowling, billiards or 
    similar team activity
    --bridge club, card games, organized chess or checkers
    --exercise classes-- low-impact, stretching, t'ai-chi, swim-therapy
    --bingo
    --fellowship meetings
    --musical theater group
    --dances, square dancing, polka, ballroom dancing,
    --at least weekly potluck dinners, breakfasts, luncheons, or 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
    --library with magazines designed for older persons and material 
    available in large print
    (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
    --free information on cable TV programs for residents--internal or 
    external support groups for residents
    --seminars on the aging process
    --seminars on 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
    --snow shoveling and plowing
    --system for referrals to doctors or other health care professionals
    --regular system to contact residents who are house-bound to make sure 
    they are o.k.
    --system for referrals for transportation services for residents
    --referrals to income tax preparers
    --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 and 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) 
    
    [[Page 43329]]
    
    --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 committee or buddy system of residents to do errands for 
    people who become ill and/or to stay with sick persons while their 
    spouses do errands
    --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 meal 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 and bus 
    schedules and maps available
    --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
    --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
    --sauna, jacuzzi or whirlpool
    --recreation or game room, arts and crafts room, community room or 
    meeting room
    --television room for communal use with VCR
    --ping pong, pool or billiard tables, shuffleboard courts, horseshoe 
    pits or bocce ball (with functional equipment)
    --golf course
    --stage, piano and dance floor
    --woodworking shop
    --restaurant for resident use
    --bank
    --legal assistance
    --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 or ramped to allow 
    wheelchair/walker access)
    --ramped sidewalks in public and common use areas; stairs at a minimum
    --benches in all 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
    --Amplifiers provided on at least 25% of public phones
    (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, 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 the facilities or 
    services that meet 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 the self-certification form 
    which will be made available by the Office of Fair Housing and Equal 
    Opportunity.
    
    [[Page 43330]]
    
        (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. However, the posting of a 
    self-certification notice will not preclude the Department from 
    investigating a complaint of alleged housing discrimination where there 
    is evidence that the housing provider fails to comply with the self-
    certification.
    
    
    Sec. 100.310  Impracticability.
    
        (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 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 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 provider 
    (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) Secs. 100.305, 100.306 100.307 and 100.316; or
        (B) Secs. 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) The use of 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.
    
    
    [[Page 43331]]
    
        Note: The following appendix, ``Housing for Older Persons--Self-
    Certification,'' will not be codified in title 24 of the Code of 
    Federal Regulations.
    
        Dated: July 31, 1995.
    Susan Forward,
    Deputy Assistant Secretary for Enforcement and Investigations.
    BILLING CODE 4210-28-P
          
    
    [[Page 43332]]
        [GRAPHIC][TIFF OMITTED]TR18AU95.052
        
    
    
    [[Page 43333]]
        [GRAPHIC][TIFF OMITTED]TR18AU95.053
        
    
    
    [FR Doc. 95-20222 Filed 8-17-95; 8:45 am]
    BILLING CODE 4210-28-C
    
    

Document Information

Effective Date:
9/18/1995
Published:
08/18/1995
Department:
Housing and Urban Development Department
Entry Type:
Rule
Action:
Final rule.
Document Number:
95-20222
Dates:
September 18, 1995.
Pages:
43322-43333 (12 pages)
Docket Numbers:
Docket No. FR-3502-F-08
RINs:
2529-AA66
PDF File:
95-20222.pdf
CFR: (8)
24 CFR 100.306(e)
24 CFR 100.304
24 CFR 100.305
24 CFR 100.306
24 CFR 100.307
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