HUD Comment Request for Housing for Older Persons Act of 1995 (HOPA)
As required by federal law, on December 13, 2016, HUD published a 60-day Notice of Proposed Information Collection of the Housing for Older Persons Act of 1995 (HOPA). The purpose of the notice is to solicit comments from the public and agencies concerning whether the required information collection is necessary for program performance purposes. The notice is also useful for reminding owners and managers of their responsibilities in the operation of housing for older persons.
Background
The Fair Housing Act prohibits discrimination on the basis of familial status (individuals living in households with one or more children under the age of 18). However, the Act exempts three categories of “housing for older persons” from liability for familial status discrimination:
- Housing provided under any state or federal program which HUD determines is “specifically designed and operated to assist elderly persons (as defined in the state or federal program),”
- Housing “intended for, and solely occupied by persons 62 years of age or older,” and
- Housing “intended and operated for occupancy by at least one person 55 years of age or older per unit (’55 and older’ housing).”
In December 1995, Congress passed HOPA as an amendment to the Fair Housing Act (FHA). HOPA modified the “55 and older” exemption under the FHA by eliminating the requirement that a housing provider had to offer “significant facilities and services specifically designed to meet the physical or social needs of older persons.” In order to qualify for the HOPA exemption, a housing community must meet each of the following criteria:
- At least 80% of the occupied units in the community must be occupied by at least on person who is 55+;
- The housing provider must publish and adhere to policies and procedures that demonstrate the intent to operate housing for persons age 55+; and
- The housing provider must demonstrate compliance with “rules issued by the Secretary for verification of occupancy, which shall…provide for (age) verification by reliable surveys and affidavits.”
The information that is required to be collected is necessary to demonstrate a housing provider’s eligibility to claim the “55 and older” housing exemption as an affirmative defense to a familial status discrimination complaint.
It is common practice in the senior housing industry to publish and consistently enforce age verification rules and policies and procedures that indicate an intent to provide housing for older persons. Under HOPA, a “55 or older” housing provider should conduct an initial occupancy survey of the community to verify compliance with HOPA’s “80% occupancy” requirement and should maintain such compliance by periodically reviewing and updating existing age verification records for each occupied dwelling unit at least once every two years.
The HOPA exemption also requires that a summary of the occupancy survey results must be made available for public inspection. No individual resident information is required; the summary may simply indicate the total number of dwelling units actually occupied by persons age 55+. A housing provider may be required to show information on individual households only in the case of a familial status discrimination charge, and in such cases, only HUD will be entitled to the information.
These record-keeping requirements are the responsibility of the housing provider that seeks to qualify for the HOPA exemption.
Owners and managers of 55+ housing should ensure that the recordkeeping requirements for such housing are maintained and available to the public and HUD.