24 Cfr Part 100 - Implementation Of The Housing For Older Persons Act Of 1995; Final Rule - U.s. Department Of Housing And Urban Development Page 5
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Federal Register / Vol. 64, No. 63 / Friday, April 2, 1999 / Rules and Regulations
There continues to be confusion
to be senior housing remained clear,
include any type of housing which
concerning what is often referred to as
HUD would not have an objection.
could qualify for the exemption.
On the issue of age verification,
the 80/20 split. HOPA states that the
However, the remaining portion of units
commenters had several diverse
minimum standard to obtain housing for
not counted for purposes of meeting the
suggestions. Several commenters urged
persons who are 55 years of age or older
80% requirement may not be segregated
that only the individual resident should
status is that ‘‘at least 80%’’ of the
within a community or facility.
be able to attest to his or her age and
occupied units be occupied by persons
Some commenters offered opinions
that anyone not cooperating with the
55 years or older. There is no
concerning the proper nomenclature for
survey should be considered to be not
requirement that the remaining 20% of
senior communities and the
55 years or older. It is HUD’s position
the occupied units be occupied by
consequences of using the ‘‘wrong’’
that the test is whether 80% of the
persons under the age of 55, nor is there
term. HUD believes that the best
occupied units are, in fact, occupied by
a requirement that those units be used
practice is to refer to such housing as
persons 55 years or older. This need
only for persons where at least one
‘‘Senior Housing’’ or ‘‘A 55 and older
only be documented through reliable
member of the household is 55 years of
community’’ or ‘‘retirement
survey, census or affidavit, or other
age or older. Communities may decline
community,’’ and discourages the use of
documentation, a copy of which should
to permit any persons under the age of
the terms ‘‘adult housing’’ or similar
be retained for recordkeeping purposes,
55, may require that 100% of the units
language. While use of adult housing or
and which confirms that the 80%
have at least one occupant who is 55
similar phrases, standing alone, do not
threshold is being met. A self
years of age or older, may permit up to
destroy the intent requirement of HOPA,
certification of his or her age by an
20% of the occupied units to be
they send a clear message which is
individual will be adequate to meet this
occupied by persons who are younger
inconsistent with the intent to be
standard. An affidavit from someone
than 55 years of age, or set whatever
housing for older persons. If a
who knows the age of the occupant(s)
requirements they wish, as long as ‘‘at
community or facility has clearly shown
and states his/her basis for the
least 80%’’ of the occupied units are
its intent in other ways, and meets the
knowledge is sufficiently reliable to
occupied by one person 55 years of age
80% requirement, then the intent
satisfy the statute. To hold otherwise
or older, and so long as such
requirement has been met even if the
would effectively allow 21% of a senior
requirements are not inconsistent with
phrase ‘‘adult’’ or similar terminology is
community to destroy the exemption by
the overall intent to be housing for older
occasionally used. However, a
not cooperating with verification
persons.
community which describes itself as
The final regulation retains the
procedures.
‘‘adult’’ leaves itself vulnerable to
Other comments concerning
provision that a unit occupied by a
complaints about its eligibility for the
verification were that the use of
person or persons as a reasonable
exemption, which could result in an
immigration documents should be
accommodation to the disability of an
investigation or litigation to determine
removed from the list of possible
occupant need not be counted in
whether the community in fact qualifies
sources of age verification lest it
meeting the 80% requirements. This
for the exemption.
encourage discrimination against legal
provision ensures that a community or
Other questions on the intent
immigrants. The option remains in the
facility seeking to authorize the
requirement concerned whether HUD
rule since it is only one way of verifying
reasonable accommodation for a
intended to require that all of the items
age. HUD does not intend to require any
resident who, because of a disability,
in § 100.306 be provided and whether
particular documentation be provided
requires an attendant, including family
the examples of compliance with the
as a condition of occupancy, including
members under the age of 18, residing
intent requirement were mandatory.
immigration documentation. If any
in a unit in order for that person to
HUD does not intend to impose any
individual chooses to verify by
benefit from the housing will not have
rigid requirements on indicating intent.
providing a drivers license or affidavit
its exemption adversely affected by
Section 100.306 only speaks to relevant
instead of an immigration document,
permitting the accommodation. The
factors to be considered and the
the verification requirement will be
authority for this provision arises under
examples simply illustrate what could
satisfied. A summary of the information
the Act’s requirement that reasonable
satisfy the requirement. Intent is judged
gathered in support of the occupancy
accommodations be provided to persons
based on the common understanding of
verification should be retained for
with disabilities.
the word and whether the community or
Although occupancy by a person
confirmation purposes. Copies of
facility has established through various
under the age of 55 who inherits a unit
supporting information gathered in
means whether they intend to operate
or a surviving spouse who is younger
support of the occupancy verification
housing for persons who are 55 years of
than 55 years of age are the original
may be retained in a separate file with
age or older.
examples cited by Congress in justifying
limited access, created for the sole
Other commenters objected to the
the original 80/20 split, HUD does not
purpose of complying with HOPA, and
inclusion of a ‘‘municipally zoned area’’
consider these to be the only
not in general or resident files that may
as a possible type of housing for persons
appropriate uses of the flexibility
be widely accessible to employees or
who are 55 years of age or older, while
provided by the up to 20% allowed by
other residents. The segregated
others questioned the use of the
the exemption, nor are protections for
documents may be considered
terminology of ‘‘mobile home park’’
those groups required. HUD believes
confidential and not generally available
instead of ‘‘manufactured housing’’.
that the appropriate use of the 20%, if
for public inspection. HUD, state or
When former Assistant Secretary
any, is at the discretion of the
local fair housing enforcement agencies,
Roberta Achtenberg conducted public
community or facility and does not
or the Department of Justice may review
hearings on the ‘‘55 and over’’ rule,
intend to impose more specific
this documentation during the course of
requirements in this area. For example,
HUD learned that there are a large
an investigation.
a community could allow some
variety of senior housing communities,
Other commenters questioned the
percentage of its units, up to 20%, to be
organized and administered in various
reference to a ‘‘census’’ as a source of
made available to persons over the age
ways. HUD attempted to define the
verification, noting that the census does
of 50, and, as long as the overall intent
possibilities as broadly as possible to
not specify individual names but
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