Date: June 2015 MAHMA Violence Against Women Act UPDATE _experience the commitment TM
A Little History VAWA 2013. The Violence Against Women Reauthorization Act (VAWA) On August 6, 2013, at 78 FR 47717 Federal Register notice that provided an overview of the applicability of VAWA 2013 to HUD programs. VAWA 2013 added to the list of covered programs, described the changes that VAWA 2013 made to existing VAWA protections, and identified certain issues for which HUD specifically sought public comment. VAWA will be implemented through notice and comment rulemaking and a proposed rule was published in the Federal Register on April 1, 2015. 2
What is VAWA? Legislation designed to protect the rights of victims of domestic violence, dating violence or stalking who live in subsidized housing or who apply for housing. The rule prohibits O/A from evicting or terminating assistance from individual if the grounds for this action is an instance of domestic violence, dating violence or stalking. The original rule was implemented for PHAs in 2005 and now has formally been implemented for ALL Section 8 Programs. U.S. Dept. of HUD issued this guidance in Notice 08-07 directing O/A to implement certain provisions of the law. 3
What Protections Are Provided by VAWA? The law offers the following against eviction or denial of housing based on domestic violence, dating violence and stalking: Status as a victim of one of the above cannot be a basis for denial of rental assistance OR admission if the applicant otherwise qualifies. Instances of actual or threatened domestic violence, dating violence or stalking will not be construed as serious or repeated violations of a lease or other good cause for terminating assistance, tenancy or occupancy rights of a victim of abuse. 4
VAWA 2013 Provisions VAWA 2013 was enacted on March 7, 2013 and expands VAWA s applicability to include Low Income Housing Tax Credit (Housing Credit), Section 202 Housing for the Elderly, Section 811 Housing for Persons with Disabilities, Housing Opportunities for Persons with AIDS (HOPWA), HOME Investment Partnerships (HOME), Section 221(d) mortgage insurance, and Section 236 mortgage insurance programs. It is also applicable to a number of rural housing assistance programs authorized by the Housing Act of 1949. 5
VAWA 2013 Continued Expands protections relating to the prohibition of terminating assistance because of criminal activity directly relating to domestic violence, dating violence, sexual assault, and stalking by replacing the term immediate family member with affiliated individual. If the tenant or affiliated individual is the victim of the above-described criminal activity, the activity cannot be cause for terminating assistance, tenancy, or occupancy rights. 6
Explanation of Lease Bifurcation Provisions If a lease is bifurcated and the removed tenant or occupant was the sole person eligible to receive assistance in the covered HUD program, the PHA, owner, or manager must provide remaining tenants with the opportunity to establish eligibility for assistance. If the tenant is unable to do so, a reasonable amount of time to find new housing or establish eligibility under a different housing program must be provided. Guidance or regulations defining a reasonable amount of time will be forthcoming. 7
VAWA 2013: HUD Requirements HUD is required to adopt a model emergency transfer plan for use by in covered HUD programs. The plan must allow tenants who are victims to transfer to another available and safe dwelling and include reasonable confidentiality measures. A tenant can request a transfer if he/she reasonably believes he/she is threatened with imminent harm by remaining in the unit or is a victim of assault that occurred on the premises 90-days before the transfer. Transfers are subject to the availability of other assisted housing and to all other HUD requirements being met. 8
Documentation/Guidance VAWA 2013 extends the documentation and confidentiality requirements of VAWA to all HUD covered programs. HUD will be developing new forms for the HUD programs added by VAWA 2013. VAWA 2013 requires that HUD, rather than individual housing providers, develop a notice outlining an applicant s or tenant s rights under VAWA 2013. The VAWA 2013 provisions related to HUD programs became effective upon the law s enactment. HUD will be issuing administrative guidance, in addition to promulgating regulations, to help programs comply with VAWA 2013. HUD s August 6, 2013 notice should not be considered as program guidance. 9
April 1, 2015 VAWA Notice This is a proposed rule. A proposed rule announces possible changes to the CFR. In addition it: Sets out proposed regulatory text Solicits public comment on proposal Initiates the notice and comment rulemaking process Agencies must consider public comments, justify decisions to finalize change or withdraw proposed rules Agencies may invoke a good cause exception if proposed rule is impracticable, unnecessary, or contrary to the public interest. Comments were due June 1, 2015 A Final Rule is forthcoming. 10
What Did the Proposed Rule Change? This rule commences the rulemaking process to implement those provisions of VAWA 2013 that are not self implementing. These include: Making sexual assault, which was not covered in VAWA 2005, a covered protection. Expanding protections for victims of domestic violence, dating violence, sexual assault, and stalking by requiring housing providers to have emergency transfer plans, and by providing reasonable time for tenants to establish eligibility for assistance under another covered program. 11
Key Regulations Include sexual assault as an action covered by VAWA protections, an action that was not included for HUD-covered programs by VAWA 2005. Establish a definition for affiliated individual based on the statutory definition and that is usable and workable for programs covered by VAWA. Apply VAWA protections to the Housing Trust, which was not statutorily listed as a covered program. 12
More Key Regulations Establish a reasonable period of time during which a tenant (in situations where the tenant is not the perpetrator) may establish eligibility to remain in housing, where the tenant s household is divided due to domestic violence, dating, violence, sexual assault, or stalking, and where the tenant was not the member of the household that previously established eligibility for assistance. 13
Key Regulations Establish what constitutes a safe and available unit to which a victim of domestic violence, dating violence, sexual assault, or stalking can be transferred on an emergency basis. Establish what documentation requirements, if any, should be required of a tenant seeking an emergency transfer to another assisted unit. 14
What Does Affiliated Individual Mean? VAWA 2013 defines affiliated individual to mean: (A) a spouse, parent, brother, sister, or child of that individual, or an individual to whom that individual stands in loco parentis*; or (B) any individual, tenant, or lawful occupant living in the household of that individual. This is intended to cover individuals lawfully occupying a unit but who may not necessarily meet a definition of family. 15
What About Live-In Aides? While a live-in aide or caregiver who resides in a unit may be a lawful occupant, nonetheless such individual is not a tenant and the protections of VAWA would not apply, except that the live-in aide or caregiver cannot be denied assistance if he or she independently applies for assistance. 16
How is Sexual Assault Defined? It is statutorily defined as: Any non-consensual sexual act proscribed by Federal, tribal or state law, including when the victim lacks capacity to consent. The proposed rule ADDS this definition to the rule and indicates that that VAWA protections extend to this circumstance. 17
Proposed Rule Required Documents Included in the April 1, 2015 proposed rule were Appendices A, B, and C which are: Notice of Occupancy Rights Under the Violence Against Women Act Model Emergency Transfer Plan for Victims of Domestic Violence Certification of Domestic Violence.And Alternative Documentation We will look at the content of each of these proposed documents. 18
Appendix A: Notice of Occupancy Rights Explains the purpose of VAWA Lists and explains Protections for Prospective Tenants Victims as Tenants Removing Abusers from Households Moving to Another Unit Documenting domestic violence, dating violence, stalking and sexual assault Confidentiality Reasons you may be evicted When the rule is final, O/A will be required to provide this document to applicants and/or tenants much like the Lead-based paint document. 19
Appendix B: Emergency Transfers Explains eligibility for an emergency transfer: Tenant reasonably believes there is a threat of imminent harm from further violence if remaining in the unit Tenant is a victim of sexual assault which occurred on the property within the 90-days preceding a request for a transfer Tenant must submit a written request for the transfer that should include: Why tenant believes he/she is in imminent danger of further violence A statement of sexual assault occurring within defined timeframes The housing provider may request additional information 20
Appendix B: Emergency Transfer Provisions Explanation of confidentiality Housing provider will keep confidential any information related to the Emergency Transfer unless given written permission by the tenant to release it. Transfer Timing and Availability Housing provider will act as quickly as possible to move a tenant requesting an emergency transfer. Safety and Security of Tenants Tenant is encouraged to take reasonable actions to remain safe after the transfer occurs. Tenants are encouraged to contact the National Domestic Violence Hotline or a local domestic violence shelter. 21
Appendix C: Certification/Documentation Contains the purpose of the form Applies to applicants to the program and program participants alike Allows for alternate documentation to meet this requirement Indicates that the form is Optional, but if the responsible entity submits a written request for completion of this form, the tenant has 14 business days to submit the document 22
What is Required of O/As? O/A must update their TSP and/or House Rules to incorporate VAWA provisions. This is clearly spelled out in Figure 4-2 of 4350.3, REV. 4. The plan, as well as House Rules where applicable, must include policies and procedures covering the VAWA protections. O/A MUST provide tenants the option to complete the Certification form issued with this notice. This certification should be presented to families at the time of admission or, in the event of a termination or start of an eviction for cause proceeding, enclosed with the first eviction notice. 23
O/A Option..not required. O/A responding to an incident of actual or threatened DV1, DV2 or stalking that could have a potential impact on a tenant s participation in the housing program MAY request in writing that the individual complete the form within 14 business days of the request OR 24
O/A Options.not required In lieu of the certification form or additionally, O/A may accept one of the following: a federal, state, tribal, territorial or local police record or court record. Document signed and attested to by a professional employee, agent or volunteer of a victim service provider, attorney or medical personnel from whom the victim sought assistance for the incident. The signatory attests under penalty of perjury to his belief that the incident constitutes bona fide abuse. 25
Documentation.. Note: O/A are not required to demand these types of documentation O/A, at their discretion, MAY provide assistance based on the victim s statement or corroborating evidence. O/A must, however, apply the policy consistently. 26
Caveats to O/A Be mindful when delivering certification form.the abuser may monitor mail work with victim to establish delivery arrangements. Identity of the victim and all info provided to O/A must be retained in confidence and cannot be shared electronically or in hard copy except by consent of the individual in writing or as required for use in eviction/termination or other applicable law. Keep all documentation secure in a separate file and location away from other tenant files. This is to keep the potential abuser from knowing about the report of violence. 27
Lease Addendum O/A are required to attach the HUD-approved Lease Addendum Form HUD 91067 to each existing or new lease. New Admissions: this must be attached to all new leases going forward. 28
Lease Bifurcation. If abuse is determined to be clear and present, Owners and Agents have the authority to remove, evict or terminate assistance to the abuser while allowing the victim to maintain tenancy. Eviction must be in compliance with local/state/federal law. If one member of the household is removed under this provision, an Interim recertification should be processed reflecting the change in household. This must be enforced as a lease requirement. 29
Tenant Rights and Responsibilities If requested by O/A, tenants are required to submit form HUD 91066 or other supporting documents previously discussed within 14 days of the O/A request. If not provided, O/A may begin eviction proceedings. Being a victim does not shield a tenant from being evicted for other causes, including, if the victim poses an actual and imminent threat to others at the site (tenants, workers, service providers) or for other criminal activity. O/A cannot hold the victim to a more demanding standard than other tenants. 30
To Review: What an O/A MUST DO New admissions. O/As must provide the tenant with the applicable HUD model lease along with the Lease Addendum. Existing tenants. O/As should have already notified in place tenants Keep all documentation related to VAWA confidential and in a separate file. 31
What Comments/Concerns Have Been Voiced? One concern: The O/A cannot transfer the victim between properties. Just transferring a victim from one unit to another may not provide the protections VAWA seeks. Rural housing is considering this option. Other concerns: Recommendation to clearly define lease bifurcation Recommend 60-90 day time period as reasonable for tenants to establish eligibility or find new housing under VAWA HUD agrees with this timeline. 32