[Federal Register Volume 60, Number 49 (Tuesday, March 14, 1995)]
[Proposed Rules]
[Pages 13840-13848]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-5968]




[[Page 13839]]

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Part IV





Department of Housing and Urban Development





_______________________________________________________________________



Office of the Assistant Secretary for Fair Housing and Equal 
Opportunity



_______________________________________________________________________



24 CFR Part 100



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

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

DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

Office of the Assistant Secretary for Fair Housing and Equal 
Opportunity

24 CFR Part 100

[Docket No. R-95-1706; FR-3502-P-06]
RIN: 2529-AA66


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

AGENCY: Office of the Secretary for Fair Housing and Equal Opportunity, 
HUD.

ACTION: Proposed rule.

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SUMMARY: This proposed rule would implement section 919 of the Housing 
and Community Development Act of 1992. Section 919 requires the 
Secretary of HUD to issue ``rules defining what are `significant 
facilities and services especially designed to meet the physical or 
social needs of older persons' required under section 807(b)(2) of the 
Fair Housing Act to meet the definition of the term `housing for older 
persons' in such section.'' This proposed rule would amend HUD's 
regulations governing ``housing for older persons'', to provide the 
definitions required by section 919.

DATES: Comments due date: May 15, 1995.

ADDRESSES: Interested persons are invited to submit comments regarding 
this proposed rule to the Office of the General Counsel, Rules Docket 
Clerk, Room 10276, Department of Housing and Urban Development, 451 
Seventh Street, SW., Washington, DC 20410-0500. Communications should 
refer to the above docket number and title and to the specific sections 
in the regulation. Facsimile (FAX) comments are not acceptable. A copy 
of each communication submitted will be available for public inspection 
and copying during regular business hours at the above address.

FOR FURTHER INFORMATION CONTACT: Sara K. Pratt, Office of 
Investigations, Office of Fair Housing and Equal Opportunity, Room 
5204, U.S. Department of Housing and Urban Development, 451 Seventh 
Street, SW., Washington, DC 20410-0500, telephone (202) 708-0836. 
Hearing or speech-impaired individuals may call HUD's TDD number (202) 
708-0113, or 1-800-877-8399 (Federal Information Relay Service TDD). 
(Other than the ``800'' number, these are not toll-free numbers.)

SUPPLEMENTARY INFORMATION:

I. Background

A. The Significant Facilities and Services Requirement

    The Fair Housing Act (Title VIII of the Civil Rights Act of 1968, 
as amended by the Fair Housing Amendments Act of 1988, 42 U.S.C. 3601-
19) (the Act) exempts ``housing for older persons'' from the 
prohibitions against discrimination because of familial status. 
Specifically, section 807(b)(2)(C) of the Act exempts housing intended 
and operated for occupancy by at least one person 55 years of age or 
older per unit that satisfies certain criteria. The purpose of the 
prohibition against discrimination on the basis of familial status and 
the ``housing for older persons'' exemption is to protect families with 
children from discrimination in housing without unfairly limiting 
housing choices for elderly persons (see 134 Cong. Rec. S 19722 (Aug. 
1, 1988) statement of Senator Karnes).
    The Department has implemented the housing for older persons 
exemption at 24 CFR part 100, subpart E. Congress mandated that, in 
determining whether housing qualifies as housing for persons 55 years 
of age or older, the Secretary develop regulations which require at 
least the following factors:
    (1) The existence of significant facilities and services 
specifically designed to meet the physical or social needs of older 
persons, or if the provision of such facilities is not practicable, 
that such housing is necessary to provide important housing 
opportunities for older persons; and
    (2) that at least 80 percent of the units are occupied by at least 
one person 55 years of age or older per unit; and
    (3) the publication of, and adherence to, policies and procedures 
which demonstrate an intent by the owner or manager to provide housing 
for persons 55 years of age or older.
    Section 919 of the Housing and Community Development Act of 1992 
(Pub. L. 102-550, approved October 28, 1992), requires the Secretary of 
HUD to issue a rule further defining what are ``significant facilities 
and services especially designed to meet the physical or social needs 
of older persons'' required under section 807(b)(2) of the Fair Housing 
Act to meet the definition of the term ``housing for older persons.''

B. The July 7, 1994 Proposed Rule

    On July 7, 1994 (59 FR 34902) the Department published for public 
comment a proposed rule intended to implement section 919 of the 
Housing and Community Development Act of 1992. Customarily proposed 
rules provide for a 60-day public comment period. However, in order to 
ensure broad public input into the rulemaking process, the Department 
granted a 90-day comment period. As the October 5, 1994 public comment 
deadline approached it became clear to the Department that there was 
significant public interest in the proposed rule. On September 26, 1994 
(59 FR 49035), the Department extended the comment period to November 
30, 1994.
    The Department also scheduled public meetings to hear from those 
affected by the proposed rule. Five such meetings were held across the 
country: Fontana, California on August 15, 1994; Tampa, Florida on 
August 25, 1994; Phoenix, Arizona on September 29, 1994; Washington, DC 
on October 6, 1994 and; Spokane, Washington on November 17, 1994. 
Transcribed records of these meetings were prepared and made part of 
the public comment docket.
    The July 7, 1994 proposed rule was of great interest to many 
seniors. By close of business on November 30, 1994, 15,219 comments had 
been received. Based on the written comments received on the proposed 
rule, and the comments received at the five public meetings, the 
Department decided to make significant changes to the July 7, 1994 
proposed rule.
    On December 12, 1994 (59 FR 64104), the Department published a 
notice in the Federal Register announcing it would not proceed to final 
rulemaking on the July 7, 1994 proposed rule. Instead, as a result of 
the significant changes to the July 7, 1994 rule, the Department is 
issuing this new proposed rule, which addresses the issues raised by 
the commenters and solicits additional public comment.

II. Overview of Proposed Rule

    Like the July 7, 1994 rule, this proposed rule would implement the 
rulemaking required by section 919 of the Housing and Community 
Development Act of 1992. Specifically, this proposed rule would revise 
the 55-or-over housing currently set forth in Sec. 100.304(b)(1). A new 
Sec. 100.305 would be added and would address the standards housing 
providers must meet in order to qualify as 55-or-over housing. A new 
Sec. 100.306 would be added and would address the requirement for 
``significant facilities and services specifically designed to meet the 
physical or social needs of [[Page 13841]] older persons.''1 A new 
Sec. 100.307 would be added and would set forth the standards for 
housing providers choosing to self-certify their compliance with the 
Act's requirements. In addition to adding these three sections, the 
substance of existing Sec. 100.304(b)(2) would be amended and located 
in new Sec. 100.310. Existing subsection Sec. 100.304(e) would be 
deleted and existing subsections Secs. 100.304(c)(1) and 100.304(d) 
would be amended and provide the substance of new Sec. 100.315. 
Existing subsection Sec. 100.304(c)(2) would be amended and 
redesignated as new Sec. 100.316.

    \1\ The language of section 919 contains the word 
``especially'': ``* * * rules defining what are `significant 
facilities and services especially designed to meet the physical or 
social needs of older persons' required under section 807(b)(2) of 
the Fair Housing Act to meet the definition of the term `housing for 
older person' in such section.'' (emphasis added) This proposed rule 
uses the word ``specifically'' rather than the word ``especially'' 
to comply with congressional intent and reflect the actual language 
of section 807(b)(2) of the Fair Housing Act.
---------------------------------------------------------------------------

    The Department recognizes that the majority of seniors are healthy 
and lead active and independent lives. In developing this proposed 
regulation, the Department has rejected the assumption that all 
residents of senior housing are frail or disabled. This proposed rule 
does not require that a facility or service be accessible to the 
disabled in order to be classified as ``significant'' or ``specifically 
designed to meet the physical or social needs of older persons.'' 
Neither does this proposed regulation require that a housing provider 
furnish congregate dining areas, nursing services, or expensive and 
unwanted facilities to qualify for the housing for older persons 
exemption.
    In developing this proposed regulation, the Department desires to 
provide as much certainty as possible regarding the determination that 
housing qualifies as housing for older persons. It has sought to 
structure the regulations to allow both housing providers and protected 
classes alike to ascertain with confidence whether a community 
qualifies under the Act.
    Proposed Sec. 100.306 sets forth a diverse ``menu'' of facilities 
and services which a community may choose to provide. The facilities 
and services are listed under twelve broad categories (e.g. Social 
Needs, Leisure Needs, Educational Needs). In order to qualify as 55-or-
over housing, the community must provide at least two facilities or 
services from five of the categories, for a total of at least ten 
facilities or services. Both facilities and services must be provided.
    Once a community has met the requirements of proposed Sec. 100.306, 
a new Sec. 100.307 would permit the community to self-certify that it 
qualifies under the Act. Absent evidence to the contrary, the 
Department will assume that those communities which have chosen to 
self-certify are in compliance with the Act's requirements.
    However, the Department does not wish to provide certainty in 
complying with the requirements of the Act at the expense of 
flexibility. The Department has concluded that a flexible standard is 
necessary in order to reflect regional variations in services and 
facilities that distinguish housing for older persons from other 
similar housing, as well as variations determined by the geography of 
the site or by the differences in the nature or cost of the housing in 
question. The Department believes that the ``menu'' set forth in 
proposed Sec. 100.306 is sufficiently broad to accommodate regional 
differences in the need for facilities and services.
    In addition, the Department recognizes that housing for older 
persons is not limited to the affluent. Therefore, Sec. 100.306's menu 
includes many facilities and services which are not costly and may be 
provided by volunteers. Furthermore, the proposed rule allows 
facilities and services to be provided away from the housing premises, 
so long as there is sufficient transportation to ensure that the off-
premise facility or service is truly accessible to the community 
residents.
    As is the case with other exemptions to civil rights statutes and 
other exemptions under the Act, the burden of demonstrating that the 
``older persons'' exemption applies rests on the party asserting the 
exemption. Part of that party's burden in establishing qualification 
for the exemption requires affirmatively demonstrating through credible 
and objective evidence that the requirements for the exemption exist as 
of the date of an alleged violation of the Act. The Department believes 
that the Act imposes a strict burden upon a person claiming the 
exemption to provide credible and objective evidence showing that the 
facilities and services offered by the housing provider were designed, 
constructed or adapted to meet the particularized needs of older 
persons. In order to be considered as sufficient to qualify a housing 
facility for the exemption, the evidence must show that the housing in 
question is clearly distinguished from the bulk of other housing 
(except for other older persons housing) in a particular area, by the 
existence of those facilities and services which set the housing 
facility apart as housing intended for and operated as housing for 
older persons. Without such evidence, the familial status prohibitions 
of the Act will apply. However, absent evidence to the contrary, the 
Department will assume that communities which have chosen to self-
certify under proposed Sec. 100.307 are in compliance with the Act's 
requirements.

III. Proposed Amendments

New Sec. 100.305--Criteria

    New Sec. 100.305 proposes to establish the criteria by which a 
community will be determined to qualify under the ``housing for older 
persons'' exemption to the Act's requirements.

New Sec. 100.306--Significant Facilities and Services Specifically 
Designed for Older Persons

    New Sec. 100.306 proposes to set forth the standards by which to 
ascertain whether a facility or service is ``significant'' or is 
``specifically designed to meet the physical or social needs of older 
persons.'' New Sec. 100.306 sets forth a ``menu'' of facilities and 
services a housing provider may choose to furnish. A housing provider 
which provides ten items from the menu (two items from five of the menu 
categories), is deemed to be in compliance with the Act's requirements.

New Sec. 100.307--Self Certification

    New Sec. 100.307 sets forth the requirements for those communities 
which choose to self-certify their compliance with the Act. Absent 
evidence to the contrary, the Department will assume that a community 
that has elected to self-certify qualifies as 55-or-over housing.

New Sec. 100.310--Impracticability

    Existing Sec. 100.304(b)(2), which would be redesignated as new 
Sec. 100.310, would be revised by adding the following language as the 
introductory text to the current provisions contained in paragraph 
(b)(2):

    The provisions regarding familial status in this part shall not 
apply to housing intended and operated for occupancy by at least one 
person 55 years of age or older per unit, provided that the person 
or entity affirmatively proves through credible and objective 
evidence that the housing satisfies the requirements of 
Secs. 100.305, 100.306, 100.315 and 100.316 or 100.310, 100.315 and 
100.316. Housing satisfies the requirements of Sec. 100.310 if * * *

New Sec. 100.315--80 percent occupancy

    Existing Sec. 100.304(e) would be deleted and existing 
Secs. 100.304(c)(1) and 100.304(d) would be combined as 
[[Page 13842]] new Sec. 100.315. The following language would be added 
to the new Sec. 100.315:

    The provisions regarding familial status in this part shall not 
apply to housing intended and operated for occupancy by at least one 
person 55 years of age or older per unit, provided that the person 
or entity affirmatively proves through credible and objective 
evidence that the housing satisfies the requirements of 
Secs. 100.305, 100.306, 100.315 and 100.316 or 100.310, 100.315 and 
100.316. Housing satisfies the requirements of this Sec. 100.315 if 
* * *

    Additionally, there is also new language further describing how a 
housing provider may meet the 55-or-over exemption if it does not have 
80 percent of its units occupied by at least one person who is 55 and 
older.

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

    Existing Sec. 100.304(c)(2), which would be redesignated as new 
Sec. 100.316, would be revised by adding the following language as the 
introductory text to new Sec. 100.316:

    The provisions regarding familial status in this part shall not 
apply to housing intended and operated for occupancy by at least one 
person 55 years of age or older per unit, provided that the person 
or entity affirmatively proves through credible and objective 
evidence that the housing satisfies the requirements of 
Secs. 100.305, 100.306, 100.315 and 100.316 or 100.310, 100.315 and 
100.316. Housing satisfies the requirements of Sec. 100.316 if * * *

    With respect to the use of age verification procedures, while the 
Department does not require the use of any particular type of age 
verification, nor does it require the use of age verification 
procedures at all, if such procedures are utilized, they must be 
reliable and consistently utilized.

IV. Other Matters

A. Environmental Impact

    A Finding of No Significant Impact with respect to the environment 
has been made in accordance with HUD regulations at 24 CFR part 50, 
which implements section 102(2)(C) of the National Environmental Policy 
Act of 1969 (NEPA). This Finding of No Significant Impact is available 
for public inspection between 7:30 a.m. and 5:30 p.m. weekdays in the 
Office of the Rules Docket Clerk, Office of the General Counsel, 
Department of Housing and Urban Development, Room 10276, 451 Seventh 
Street, SW., Washington, DC 20410-0500.

B. Executive Order 12866

    This proposed rule was reviewed by the Office of Management and 
Budget (OMB) under Executive Order 12866 on Regulatory Planning and 
Review, issued by the President on September 30, 1993. Any changes made 
in this proposed rule as a result of that review are clearly identified 
in the docket file, which is available for public inspection in the 
office of the Department's Rules Docket Clerk, Room 10276, 451 Seventh 
Street, SW., Washington, DC 20410-0500.

C. Impact on Small Entities

    The Secretary, in accordance with the Regulatory Flexibility Act (5 
U.S.C. 605(b)), has reviewed this proposed rule before publication and, 
by approving it, certifies that the proposed rule will not have a 
significant impact on a substantial number of small entities. The 
proposed rule would implement section 919 of the Housing and Community 
Development Act of 1992, which requires the Secretary of HUD to further 
define the term ``significant facilities and services specifically 
designed to meet the physical or social needs of older persons.'' The 
Department anticipates that the proposed rule will have an impact on 
some small housing providers. However, the number of small housing 
providers affected is not considered to be so great as to constitute a 
significant economic impact on a substantial number of small entities.

D. Executive Order 12606, the Family

    The General Counsel, as the Designated Official under Executive 
Order 12606, The Family, has determined that this proposed rule does 
not have potential for significant impact on family-formation, 
maintenance, and general well-being, and, thus is not subject to review 
under the Order.

E. Executive Order 12612, Federalism

    The General Counsel, as the Designated Official under section 6(a) 
of Executive Order 12612, Federalism, has determined that this proposed 
rule would not have substantial, direct effects on States, on their 
political subdivisions, or on their relationship with the Federal 
government, or on the distribution of power and responsibilities among 
the various levels of government. The Fair Housing Act, and section 919 
of the Housing and Community Development Act of 1992 direct HUD to 
provide further guidance on the meaning of significant facilities and 
services so that States, local governments, and housing providers will 
have a better understanding of what housing is exempt from the Fair 
Housing Act's prohibition against discrimination on the basis of 
familial status.

F. Regulatory Agenda

    This proposed rule was listed as sequence 1860 in the Department's 
Semiannual Regulatory Agenda, published on November 14, 1994 (59 FR 
57632, 57637) under Executive Order 12866 and the Regulatory 
Flexibility Act.

List of Subjects in 24 CFR Part 100

    Aged, Fair housing, Individuals with disabilities, Mortgages, 
Reporting and recordkeeping requirements.

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

PART 100--DISCRIMINATORY CONDUCT UNDER THE FAIR HOUSING ACT

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

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

Subpart E--Housing for Older Persons

    2. In subpart E, Sec. 100.304 would be revised, and new 
Secs. 100.305, 100.306, 100.307, 100.310, 100.315 and 100.316 would be 
added, to read as follows:


Sec. 100.304  55 or over housing.

    (a) The provisions regarding familial status in this part shall not 
apply to housing intended and operated for occupancy by at least one 
person 55 years of age or older per unit, provided that, at the time of 
an alleged violation of the Act, the housing satisfies the requirements 
of:
    (1) Sections 100.304, 100.305, 100.306, 100.315 and 100.316; or
    (2) Sections 100.310, 100.315 and 100.316.
    (b) With reference to complaints filed pursuant to the Act, this 
means that the person or entity claiming the exemption must 
affirmatively prove by a preponderance of evidence as of the date of 
the alleged violation of the Act that the housing meets the 
requirements of paragraph (a) of this section.
    (c) For purposes of this part, ``older persons'' means persons 55 
years of age or older.
    (d) For purposes of this part, ``housing provider'' means:
    (1) The owner or manager of a housing facility; or
    (2) The owner or manager of the common and public use areas of a 
housing facility, where the dwelling units are individually owned.
    (3) The term ``housing provider'' may include any person or entity 
which operates a housing facility, including but not limited to 
homeowner's associations or resident associations. [[Page 13843]] 
    (e) For purposes of this part, ``occupied by'' means one or more 
persons over the age of 55 actually occupying a unit at the time of an 
alleged violation of the Act and for at least 60 days in the preceding 
365 day period.
    (f) With reference to self-certifications of compliance with the 
provisions of this part, the housing provider claiming the exemption 
for 55 and older housing may demonstrate publicly, by the posting of 
one of the notices described in Sec. 100.307, compliance with the 
provisions of this part.


Sec. 100.305  Criteria.

    (a) The provisions regarding familial status in this part shall not 
apply to housing intended and operated for occupancy by at least one 
person 55 years of age or older per unit, pursuant to this part.
    (b) The housing shall have significant facilities and services 
specifically designed to meet the physical or social needs of older 
persons as described in Sec. 100.306.
    (c) At least 80 percent of the units in the housing shall be 
occupied by at least one person who is at least 55 years of age or 
older as described in Sec. 100.315.
    (d) The housing provider shall publish and adhere to policies and 
procedures which demonstrate an intent by the housing provider to 
provide housing for older persons as described in Sec. 100.316. The 
publication of policies and procedures describing an intent to provide 
housing as ``adult housing'' shall not suffice for this purpose.


Sec. 100.306  Significant facilities and services specifically designed 
for older persons.

    (a) The provisions regarding familial status in this part shall not 
apply to housing intended and operated for occupancy by at least one 
person 55 years of age or older per unit, provided that the person or 
entity asserting the exemption affirmatively demonstrates through 
credible and objective evidence that facilities and services 
specifically designed to meet the needs of older persons are 
``significant''. Significant facilities and services which are 
specifically designed for older persons are those which actually or 
predictably benefit the health, safety, social, educational or leisure 
needs of older persons.
    (b) The facilities and services provided by a housing provider are 
significant and specifically designed to meet the housing needs of 
older persons when the housing provider meets the criteria found in 
paragraphs (c), (d), and (e) of this section and complies with the 
criteria found in paragraph (f) of this section.
    (c) A housing provider provides significant facilities and services 
if it makes available, directly or indirectly, at least 2 facilities or 
services of the facilities described in paragraph (d) of this section, 
in paragraph (d)(10) of this section (category 10) or in paragraph 
(d)(11) of this section (category 11).
    (d) Facilities and services which may be considered for purposes of 
qualifying for the 55 and older housing exemption are the following:
(1) Category #1 (Social Needs)

Social and Recreational Services provided on a regular, organized 
basis

--softball, golf, shuffleboard tournaments, or similar team activity
--bridge club, card games, chess, checkers
--exercise classes--low-impact, stretching, tai-chi, swim-therapy
--bingo
--fellowship meetings
--musical theater group
--dances, square dancing, polka, ballroom dancing
--monthly or weekly potluck dinners, breakfasts, luncheons, coffees
--coordinated holiday parties for residents
--Lions club, clubs or classes for sewing, needlepoint, art, 
gardening, music, books, golf, bowling, photography, travel, etc.
--cooking classes
--crafts classes: ceramics, macrame, woodworking, jewelry, quilting, 
painting
--field trips--bowling, sightseeing, concerts, plays, hiking, 
shopping outlets
--fashion shows
--on-site movies or other theatrical events
--liaison/coordination with activities at community-wide senior 
centers and activities
--emergency meal service for residents who are ill or in need
--organized travel opportunities
(2) Category #2 (Educational Needs)

Continuing education activities

--at least monthly presentations on subjects such as health care, 
nutrition, stress management, medicare, insurance, social security, 
tax preparation, vacation planning, gardening, crime prevention
--consumer protection education
--regularly offered CPR classes
--regularly offered language study classes
--regularly offered videotapes on health care
--courses available at local educational institutions
(3) Category #3 (Educational Needs)

Information and counseling services

--providing new residents with package of information about local 
services of interest to seniors
--bulletin board for exchange of information or services
--printed resident directory provided to each resident
--bus schedules
--free cable TV programs information to residents internal or 
external support groups for residents
--seminars on the aging process, estate planning, dealing with death 
or other issues affecting older persons
--on-site legal services
--informational sessions on fire safety, mental health issues, 
political and environmental issues
--seminars on governmental benefits programs
(4) Category #4 (Physical Needs)

Homemaker services

--employees assist with housework or yardwork
--organized committee of residents to perform light household tasks 
or yard work for those who cannot do them themselves
--referrals to housecleaning services
--bill-paying services
--pet care/pet therapy services
--minor home repair service
--tool loan service
(5) Category #5 (Safety Needs)

Outside maintenance/health and safety services

--on-staff medical personnel with first aid/CPR training
--on-staff repair, maintenance and painting services
--meals on wheels
--lawn care and grass cutting, shrubbery and tree trimming
--snow shoveling and plowing
--referrals to doctors or other health care professionals
--regular system to contact residents who are house-bound to make 
sure they are o.k.
--referrals for transportation
--referrals to income tax preparer
--referrals to repair and maintenance services
--security guards/patrols, organizing neighborhood or block watch
--organizing committee of residents to do household repairs and yard 
work for those who cannot do them themselves
--exterior lighting--alarm systems monitoring
--vacation house watch
--limited access to property by controlled access gate or similar 
system
(6) Category #6 (Health Needs)

Emergency and preventative health care programs

--meetings about nutrition, back care, breast cancer/self-
examination/mammogram, prostate cancer screening, vision care, or 
other health care topics (see continuing education)
--monthly blood pressure checks
--annual flu vaccine shots available
--periodic vision or hearing tests
--staff or volunteers pick up food from social services for mobility 
impaired seniors
--organizing committees of residents to do errands for people who 
become ill and/or to stay with sick persons while their spouses do 
errands [[Page 13844]] 
--emergency telephone network, staff or volunteers monitor people 
who have serious medical problems
--doctor/medical facilities located within two miles of facility
--health care equipment pool for resident use
(7) Category #7 (Social/Health Needs)

Congregate dining

--available congregate dining for at least one meal each day
--sit-down service
--special menus for dietary needs
--activities conducted in conjunction with congregate dining
(8) Category #8 (Transportation)

Transportation to facilitate access to social services

--transportation provided to doctors' offices, shopping, religious 
services, outside social or recreational activities
--public bus stop or train station within walking distance
--organized system to provide transportation for residents who 
cannot drive
--sign-up board for shared transportation needs
--shared ride services to social events, functions, medical care, 
shopping
 (9) Category #9 (Social Needs)

Services to encourage and assist residents to use available 
facilities and services

--volunteer or staff activity planner
--lifeguards, swimming or water aerobics instructors
--dance or exercise instructors
--crafts instructors
--newsletters, newspapers or flyers informing residents of 
activities, trips, clubs, etc.
--monthly calendar of events
--resident council or committees to encourage participation in 
activities
(10) Category #10 (Leisure Needs)

Social and Recreational Facilities

--clubhouse, communal kitchen, or communal dining area
--library with large print books or subscriptions to publications 
targeted to older persons
--swimming pool, sauna or whirlpool
--recreation or game room, arts and crafts room, community room or 
meeting room
--television room for communal use
--exercise equipment
--ping pong, pool tables, shuffleboard courts, horseshoe pits or 
bocce ball (with functional equipment)
--golf course
--stage, piano and dance floor
--picnic area, picnic tables, barbecue grills
--woodworking shop
--restaurant for resident use
--bank
--lawyer's office
--travel agency
--convenience store
--barber shop
--dry cleaners
--hair salon
--lapidary
--kiln
--fishing pond
(11) Category #11 (Health/Safety Needs)

Accessible physical environment

--accessible clubhouse
--at least one accessible bathroom facility in public and common use 
areas
--ramps (curbs or drainage ditches are cut to allow wheelchair/
walker access)
--ramped sidewalks in public and common use areas; stairs at a 
minimum
--benches in public and common use areas
--assigned and designated parking spaces, including handicapped 
parking
--accessible swimming pool (i.e., ramped entrance to pool area)
--accessible management office
--accessible dining area or activity area
--vans, buses available with wheelchair lifts or easy access for 
persons with mobility difficulties
--lift to assist in swimming pool use
(12) Category #12 (Social, Leisure, Health, Safety or Educational 
Needs)

Other

--Any facility or service which is not listed above but which is 
designed to meet the health, safety, social or leisure needs of 
persons who are 55 and older and which is actually available to and 
used by residents of the property.

    (e) A housing provider provides significant facilities and services 
if the facilities and services are provided on the premises by paid 
staff, resident volunteers, or by agencies, entities or persons other 
than the housing provider. A housing provider provides significant 
facilities and services if the facilities or services are provided off 
the premises by paid staff, resident volunteers, or by agencies, 
entities or persons other than the housing provider on the premises of 
the housing or off the premises, provided that if facilities or 
services are made available off the premises, the housing provider, 
through paid staff, resident volunteers, or by agencies, entities or 
persons other than the housing provider, shall make available 
transportation services or coordination of information and 
transportation resources which ensure that residents are aware of and 
have ready access to such facilities or services.
    (f) In determining whether a housing provider provides significant 
facilities and services, the Department will evaluate each facility or 
service that meets the requirements of Sec. 100.305 by the following 
criteria to determine whether the facilities in the aggregate and the 
services in the aggregate are ``significant'':
    (1) The extent to which a facility or service can accommodate the 
older population of the housing facility. The capacity of each facility 
or service specifically designed to meet the physical or social needs 
of older persons depends upon but is not limited to such factors as:
    (i) The size of the facility in relationship to the scope of the 
service offered;
    (ii) The length of time during which the facility or service is 
made available or the service is offered;
    (iii) The frequency with which the facility or service is made 
available or the service is offered; and
    (iv) Whether the facility or service is offered only at one 
location or there are a number of locations at which the facility is 
made available or at which the service is offered.
    (2) The extent to which the facility or service will be of benefit 
to older persons, given the climate and physical setting of the housing 
facility.
    (3) The extent to which the facility or service is actually usable 
by and regularly available to residents on a day-to-day basis.


Sec. 100.307  Self-Certification.

    (a) A housing provider may indicate, by display of a notice 
complying with this part, its intent to provide housing for older 
persons in substantially the same form as that attached as Appendix 1 
to this part.
    (b) Such a notice shall be provided by the Department, and shall 
include, at a minimum, a certification of compliance with Sec. 100.315 
and an indication of the housing provider's intent to provide, and its 
certification that it does in fact provide, facilities and services 
which comply with Sec. 100.306.
    (c) Such a notice shall be signed by one or more housing providers, 
with authority to sign.
    (d) Such a notice shall be signed under penalty of perjury of the 
laws of the United States.
    (e) Such a notice shall be posted in every public or common area 
where housing transactions are conducted.
    (f) A copy of a current self-certification shall be considered by 
the Department to be sufficient evidence of compliance with the Act to 
allow the publication of advertisements, notices or the making of other 
statements as evidencing the operation of the property in question as 
housing for older persons and as excluding families with children as 
described in section 807(b)(2) of the Act, but not as conclusive 
evidence of eligibility for the housing for older persons exemption.


Sec. 100.310  Impracticability.

    (a) The provisions regarding familial status in this part shall not 
apply to [[Page 13845]] housing intended and operated for occupancy by 
at least one person 55 years of age or older per unit, provided that 
the person or entity affirmatively demonstrates through credible and 
objective evidence that the housing satisfies the requirements of 
Secs. 100.305, 100.306, 100.315 and 100.316 or Secs. 100.310, 100.315 
and 100.316. Housing satisfies the requirements of Sec. 100.310 if it 
is not practicable to provide significant facilities and services 
designed to meet the physical or social needs of older persons and the 
housing facility is necessary to provide important housing 
opportunities for older persons.
    (b) In order to satisfy the requirements of Sec. 100.310 the 
housing provider must affirmatively demonstrate through credible and 
objective evidence that the provision of significant facilities and 
services designed to meet the physical or social needs of older persons 
would result in depriving older persons in the relevant geographic area 
of needed and desired housing. The following factors, among others, are 
relevant in meeting the requirements of Sec. 100.310:
    (1) Whether the owner or manager of the housing facility has 
endeavored to provide significant facilities and services designed to 
meet the physical or social needs of older persons either by the owner 
or by some other entity. Demonstrating that such services and 
facilities are expensive to provide is not alone sufficient to 
demonstrate that the provision of such services is not practicable.
    (2) The amount of rent charged, if the dwellings are rented, or the 
price of the dwellings, if they are offered for sale.
    (3) The geographical or other physical limitations inherent in the 
property which makes the provisions of facilities or services 
impracticable.
    (4) The income range of the residents of the housing facility.
    (5) The demand for housing for older persons in the relevant 
geographic area.
    (6) The vacancy rate of the housing facility.
    (7) The certification of 90 percent of the residents of the housing 
facility that a particular category of facility or service is not 
necessary or desired. Such certification shall be maintained as part of 
the official records of the housing facility, be made available for 
public inspection, and updated by certifications from new residents of 
the housing facility.
    (8) The availability of other similarly priced housing for older 
persons in the relevant geographic area. If similarly priced housing 
for older persons with significant facilities and services is 
reasonably available in the relevant geographic area then the housing 
facility does not meet the requirements of Sec. 100.310.


Sec. 100.315  80 percent occupancy.

    (a) The provisions regarding familial status in this part shall not 
apply to housing intended and operated for occupancy by at least one 
person 55 years of age or older per unit, provided that the person or 
entity demonstrates through credible and objective evidence that 
housing satisfies the requirements of Secs. 100.305, 100.306, 100.315 
and 100.316 or Secs. 100.310, 100.315 and 100.316. Housing satisfies 
the requirements of Sec. 100.315 if at least 80 percent of the units in 
the housing facility are occupied by at least one person 55 years of 
age or older per unit except that a newly constructed housing facility 
for first occupancy after March 12, 1989 need not comply with 
Sec. 100.315 until 25 percent of the units in the facility are 
occupied.
    (b) Housing satisfies the requirements of this section even though:
    (1) On September 13, 1988, under 80 percent of the occupied units 
in the housing facility are occupied by at least one person 55 years of 
age or older per unit, provided that at least 80 percent of the units 
that are occupied by new occupants after September 13, 1988 are 
occupied by at least one person 55 years of age or older.
    (2) There are unoccupied units, provided that at least 80 percent 
of the occupied units are occupied by at least one person 55 years of 
age or over.
    (3) There are units occupied by employees of the housing (and 
family members residing in the same unit) who are under 55 years of age 
provided they perform substantial duties directly related to the 
management or maintenance of the housing.
    (4) There are insufficient units occupied by at least one person 55 
years of age or over to meet the 80 percent requirement, but the 
housing provider, at the time the exemption is asserted:
    (i) Reserves all unoccupied units for occupancy by at least one 
person 55 years of age or older until at least 80 percent of the units 
are occupied by at least one person who is 55 and older; and
    (ii) Meets the requirements of:
    (A) Sections 100.305, 100.306, 100.307, and 100.316; or
    (B) Sections 100.310, 100.315, and 100.316.
    (iii) Where application of the 80 percent rule results in a 
fraction of a unit, that unit shall be considered to be included in the 
units which must be occupied by at least one person who is 55 or older.


Sec. 100.316  Intent to provide housing for older persons.

    (a) The provisions regarding familial status in this part shall not 
apply to housing intended and operated for occupancy by at least one 
person 55 years of age or older per unit, provided that the person or 
entity proves that the housing satisfies the requirements of 
Secs. 100.305, 100.306, 100.315 and 100.316 or Secs. 100.310, 100.315 
and 100.316. Housing satisfies the requirements of Sec. 100.316 if the 
owner or manager of a housing facility publishes and adheres to 
policies and procedures which demonstrate an intent by the housing 
provider to provide housing for persons 55 years of age or older.
    (b) The following factors, among others, are relevant in 
determining whether the owner or manager of a housing facility has 
complied with the requirements of Sec. 100.316:
    (1) The manner in which the housing facility is described to 
prospective residents.
    (2) The nature of any advertising designed to attract prospective 
residents.
    (3) Age verification procedures.
    (4) Lease provisions.
    (5) Written rules and regulations.
    (6) Actual practices of the owner or manager in enforcing relevant 
lease provisions and relevant rules or regulations.
    (7) The public posting of the self-certification described in this 
part.
    3. Appendix 1 is added to part 100 to read as follows:
    Appendix 1 to Part 100--Housing For Older Persons--Self-
Certification

                                                 BILLING CODE 4210-28-P
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[[Page 13847]]

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[[Page 13848]]

    Dated: February 8, 1995.
Roberta Achtenberg,
Assistant Secretary for Fair Housing and Equal Opportunity.
[FR Doc. 95-5968 Filed 3-9-95; 2:57 pm]
BILLING CODE 4210-28-C