13840 Federal Register / Vol. 60, No. 49 / Tuesday, March 14, 1995 / Proposed Rules

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.

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

§ 100.304(b)(1). A new § 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 § 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
Federal Register / Vol. 60, No. 49 / Tuesday, March 14, 1995 / Proposed Rules 13841

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.

older persons.’’ 1 A new § 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 § 100.304(b)(2)

would be amended and located in new

§ 100.310. Existing subsection

§ 100.304(e) would be deleted and

existing subsections §§ 100.304(c)(1)

and 100.304(d) would be amended and

provide the substance of new § 100.315.

Existing subsection § 100.304(c)(2)

would be amended and redesignated as

new § 100.316.

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 § 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 § 100.306, a

new § 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 selfcertify 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

§ 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, § 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 offpremise 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 § 100.307

are in compliance with the Act’s

requirements.

III. Proposed Amendments

New § 100.305—Criteria

New § 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 § 100.306—Significant Facilities

and Services Specifically Designed for

Older Persons

New § 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 § 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 § 100.307—Self Certification

New § 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 selfcertify qualifies as 55-or-over housing.

New § 100.310—Impracticability

Existing § 100.304(b)(2), which would

be redesignated as new § 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 §§ 100.305, 100.306,

100.315 and 100.316 or 100.310, 100.315 and

100.316. Housing satisfies the requirements

of § 100.310 if * * *

New § 100.315—80 percent occupancy

Existing § 100.304(e) would be

deleted and existing §§ 100.304(c)(1)

and 100.304(d) would be combined as
13842 Federal Register / Vol. 60, No. 49 / Tuesday, March 14, 1995 / Proposed Rules

new § 100.315. The following language

would be added to the new § 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 §§ 100.305, 100.306,

100.315 and 100.316 or 100.310, 100.315 and

100.316. Housing satisfies the requirements

of this § 100.315 if * * *

Additionally, there is also new

language further describing how a

housing provider may meet the 55-orover exemption if it does not have 80

percent of its units occupied by at least

one person who is 55 and older.

New § 100.316—Intent to Provide

Housing for Older Persons

Existing § 100.304(c)(2), which would

be redesignated as new § 100.316,

would be revised by adding the

following language as the introductory

text to new § 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 §§ 100.305, 100.306,

100.315 and 100.316 or 100.310, 100.315 and

100.316. Housing satisfies the requirements

of § 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, § 100.304 would be

revised, and new §§ 100.305, 100.306,

100.307, 100.310, 100.315 and 100.316

would be added, to read as follows:

§ 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.
Federal Register / Vol. 60, No. 49 / Tuesday, March 14, 1995 / Proposed Rules 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 § 100.307, compliance with the

provisions of this part.

§ 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

§ 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 § 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 § 100.316. The publication of policies

and procedures describing an intent to

provide housing as ‘‘adult housing’’

shall not suffice for this purpose.

§ 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,

t

 ́ai-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
13844 Federal Register / Vol. 60, No. 49 / Tuesday, March 14, 1995 / Proposed Rules

—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 § 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 dayto-day basis.

§ 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 § 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 § 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 selfcertification 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.

§ 100.310 Impracticability.

(a) The provisions regarding familial

status in this part shall not apply to
Federal Register / Vol. 60, No. 49 / Tuesday, March 14, 1995 / Proposed Rules 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 §§ 100.305,

100.306, 100.315 and 100.316 or

§§ 100.310, 100.315 and 100.316.

Housing satisfies the requirements of

§ 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 § 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 § 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

§ 100.310.

§ 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 §§ 100.305, 100.306, 100.315 and

100.316 or §§ 100.310, 100.315 and

100.316. Housing satisfies the

requirements of § 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

§ 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.

§ 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

§§ 100.305, 100.306, 100.315 and

100.316 or §§ 100.310, 100.315 and

100.316. Housing satisfies the

requirements of § 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 § 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 selfcertification 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
13846 Federal Register / Vol. 60, No. 49 / Tuesday, March 14, 1995 / Proposed Rules
Federal Register / Vol. 60, No. 49 / Tuesday, March 14, 1995 / Proposed Rules 13847
13848 Federal Register / Vol. 60, No. 49 / Tuesday, March 14, 1995 / Proposed Rules

Dated: February 8, 1995.

Roberta Achtenberg,

Assistant Secretary for Fair Housing and

Equal Opportunity.

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

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