Implementation of the Housing for Older Persons Act of 1995

DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

24 CFR Part 100

[Docket No. FR-4094-P-01]

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

ACTION: Proposed rule.

SUMMARY: This proposed rule would implement the Housing for Older Persons Act of 1995 (HOPA). HOPA amended the requirements for qualification under the "housing for older persons" exemption established by the Fair Housing Act. In addition, HOPA established a good faith defense against civil money damages for persons who reasonably relied in good faith on the application of the "housing for older persons" exemption even when, in fact, the housing provider did not qualify for the exemption. This rule proposes to update HUD's regulations to reflect the changes made by HOPA.

DATES: Comments on this proposed rule and the information collection requirements must be received on or before March 17, 1997.

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 inthe 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 additional information concerning the information collection requirements contained in this rule, please see the "Findings and Certifications" section of this preamble. A copy of any comment regarding the information collection requirements must be sent to:

Joseph F. Lackey, Jr.
HUD Desk Officer
Office of Management and Budget
New Executive Office Building
Room 10235
Washington, DC 20503

FOR FURTHER INFORMATION CONTACT: Sara K. Pratt, Director, 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. (This is not a toll-free number.) Hearing or speech-impaired individuals may access this number via TTY by calling the toll-free Federal Information Relay Service at 1-800-877-8399.

SUPPLEMENTARY INFORMATION:

I. Background.

A. The Housing for Older Persons Act of 1995.

The Fair Housing Act (Title VIII of the Civil Rights Act of 1968, as amended, 42 U.S.C. 3601-3619) (the Act) exempts "housing for older persons" from the prohibitions against discrimination because of familial status. Section 807(b)(2)(C) of the Act exempts housingintended and operated for occupancy by persons 55 years of age or older that satisfies certain criteria. HUD has implemented the "housing for older persons" exemption at 24 CFR part 100, subpart E.

The Housing for Older Persons Act of 1995 (Pub. L. 104-76, approved December 28, 1995) (HOPA) replaced the original parameters of the 55-or-older exemption. Section 2 of HOPA redefined 55-or-older housing as housing:

(C) intended and operated for occupancy by persons 55 years of age or older, and-

(i) at least 80 percent of the occupied units are occupied by at least one person who is 55 years of age or older;

(ii) the housing facility or community publishes and adheres to policies and procedures that demonstrate the intent required under this subparagraph; and

(iii) the housing facility or community complies with rules issued by the Secretary [of HUD] for verification of occupancy, which shall-

(I) provide for verification by reliable surveys and affidavits; and

(II) include examples of the types of policies and procedures relevant to a determination of compliance with the requirement of clause (ii). Such surveys and affidavits shall be admissible in administrative and judicial proceedings for the purposes of such verification.

The most substantial change made by HOPA was the elimination of the "significant facilities and services" requirement. Section 807(b)(2)(C) of the Act originally required that 55-or-older housing provide "significant facilities and services specifically designed to meet the physical or social needs of older persons." HOPA also adds the new requirement that the housing facility or community comply with any HUD regulations on verification and occupancy.

In other respects, however, the new requirements are equivalent to the former provisions. HOPA requires that a housing facility or community seeking to claim the 55-or-older exemption show three factors. Similar to original section 807(b)(2)(C) of the Act, HOPA requires: (1) that the housing be intended and operated for persons 55 years of age or older; (2) that at least 80 percent of the occupied units be occupied by at least one person who is 55 years of age or older;and (3) the housing facility or community publish and adhere to policies and procedures that demonstrate its intent to qualify for the 55-or-older exemption. The housing facility or community must also comply with rules issued by HUD for the verification of occupancy.

In addition, section 3 of HOPA added a new section 807(b)(5) to the Act. This new section established a good faith defense against civil money damages for persons who reasonably relied in good faith on the application of the

55-or-older exemption, even when, in fact, the housing facility or community did not qualify for the exemption. New section 807(b)(5) provides:

(5)(A) A person shall not be held personally liable for monetary damages for a violation of this title if such person reasonably relied, in good faith, on the application of the exemption under this subsection relating to housing for older persons.

(B) For purposes of this paragraph, a person may only show good faith reliance on the application of the exemption by showing that-

(i) such person has no actual knowledge that the facility or community is not, or will not be, eligible for such exemption; and

(ii) the facility or community has stated formally, in writing, that the facility or community complies with the requirements for such exemption.

B. This Proposed Rule.

On April 1, 1996 (61 FR 14378), HUD published a final rule streamlining its regulations implementing the Act. The April 1, 1996 final rule, which was part of HUD's efforts to implement the President's regulatory reform initiative, removed the obsolete provisions describing the "significant facilities and services" requirement. The rule also made several other streamlining changes to HUD's regulations at subpart E of 24 CFR part 100. However, because the April 1, 1996 rule was published for effect without prior public comment, HUD postponed making the more substantial changes necessary to complete its implementation of HOPA. This rule proposesto make these regulatory amendments.

This rule proposes to revise 100.304, which presents an overview of the 55-or-older exemption, to more closely track the HOPA requirements. The rule also proposes to create a new 100.305, which would update the 80 percent occupancy requirements. A new 100.306 would describe how a facility or community may establish its intent to operate as 55-or-older housing. New

100.307 would set forth the necessary procedures for verification of the 80 percent occupancy requirements. Finally, a new 100.308 would implement the good faith defense against civil money damages.

Section 2 of HOPA requires that any implementing HUD regulations "include examples of the types of policies and procedures relevant to a determination of compliance with" the statute's intent requirement. Accordingly, paragraph (a) of proposed 100.306 would list several factors which HUD considers relevant in determining whether the housing facility or community intends to operate as housing for older persons. However, 24 CFR 100.306(b) would state that the use of phrases such as "adult living", "adult community", "40 and over community", or similar statements in any written advertisement or prospectus do not create a presumption that the housing community satisfies HOPA's intent requirement. The use of such phrases does not show that the facility or community truly intends to operate as housing for older persons and are inconsistent with that intent. HUD, in order to make a valid assessment of intent, will consider the other measures taken by the facility or community to demonstrate the intent required by HOPA. Moreover, the housing facility or community may not evict families with children in order to achieve occupancy of at least 80 percent of the occupied units by at least one person 55 yearsof age or older.

HUD also proposes to provide guidance to assist housing facilities and communities in applying the requirements of this proposed rule. These examples are contained in an appendix to this proposed rule. The appendix would not be codified in title 24 of the CFR. HUD may update or revise the appendix as necessary.

II. Findings and Certifications.

Public Reporting Burden. (a) The information collection requirements contained in 100.306 and 100.307 of this proposed rule have been submitted to the Office of Management and Budget (OMB) for review under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection displays a valid control number.

(b) In accordance with 5 CFR 1320.5(a)(1)(iv), the Department is setting forth the following concerning the proposed collection of information:

(1) Title of the information collection proposal: Proposed Rule -- Implementation of the Housing for Older Persons Act of 1995.

(2) Summary of the collection of information: (i) Section 100.306 of this proposed rule would require that a housing facility or community seeking to qualify as 55-or-older housing publish and adhere to policies demonstrating that intent.

(ii) Section 100.307 of this proposed rule would establish two information collection requirements. First, 100.307 would require that an occupant of 55-or-older housing provide reliable documentation regarding the occupancy of its unit, including the identification of whetherat least one occupant of the unit is 55 years of age or older. Occupants would be further required to regularly update this information. Secondly, 100.307 would require a housing facility or community to maintain records of these occupancy surveys. The housing facility or community would be required to produce the records upon: (1) the filing of a discrimination complaint; and (2) the request of any person.

(3) Description of the need for the information and its proposed use: To appropriately determine whether a housing facility or community qualifies for the housing for older persons exemption, certain information is required. HUD must determine whether the housing facility or community: (1) has published and adhered to policies demonstrating its intent to operate as 55-or-older housing; and (2) can demonstrate, through reliable surveys and affidavits, that at least 80 percent of its occupied units are occupied by at least one person 55 years of age or older.

(4) Description of the likely respondents, including the estimated number of likely respondents, and proposed frequency of response to the collection of information: Respondents will be: (1) occupants of 55-or-older housing; and (2) providers of 55-or-older housing, such as manufactured home parks, home owners associations, and property managers. (Please see paragraph (5) below for the number of likely respondents and the proposed frequency of the response to the collection of information.)

(5) Estimate of the total reporting and recordkeeping burden that will result from the collection of information: