How VAWA 2013 Applies to HUD Programs
On Aug. 6, HUD issued a notice intended to provide an overview of the recently enacted Violence Against Women Reauthorization Act of 2013 (VAWA 2013). The 2013 law expands the number of HUD programs subject to the law’s protections beyond HUD’s public housing and Section 8 tenant-based and project-based programs. The notice also highlights the key changes made by the law, lists the HUD programs now covered by it, provides an overview of key provisions applicable to HUD programs, and advises of HUD’s plans to issue rules or guidance on the new law. This notice isn’t program guidance for any individual HUD program covered by the new law; HUD will issue guidance and/or rules, as may be applicable, for covered programs at a later date.
HUD Programs Affected by VAWA 2013
VAWA 2013 makes the following HUD programs subject to the VAWA protections:
- Section 202 Supportive Housing for the Elderly;
- Section 811 Supportive Housing for Persons with Disabilities;
- Housing Opportunities for Persons With AIDS (HOPWA) program;
- HOME Investment Partnerships (HOME) program;
- Homeless programs under Title IV of the McKinney-Vento Homeless Assistance Act (McKinney-Vento);
- Federal Housing Administration (FHA) mortgage insurance for multifamily rental housing, under Section 221(d)(3) of the National Housing Act with a below-market interest rate pursuant to Section 221(d)(5) (such housing is eligible for FHA mortgage insurance for single-room occupancy pursuant to Section 223(g) of the National Housing Act);
- FHA mortgage insurance for multifamily rental housing under Section 236 of the National Housing Act; and
- HUD programs assisted under the United States Housing Act of 1937, specifically public housing under Section 6 of the 1937 Act and tenant-based and project-based rental assistance under Section 8 of the 1937 Act.
Pre-VAWA 2013 Requirements Compared to Current Requirements
HUD will still need to issue rules to make HUD’s existing VAWA regulations conform to the VAWA 2013 requirements and to establish VAWA regulations for the HUD programs newly covered by VAWA 2013. Here are specific issues for which HUD seeks comments during the development of regulations or guidance:
Coverage for victims of sexual assault. Although VAWA 2005 contained provisions for the protection of victims of sexual assault, reference to protection of victims of sexual assault wasn’t part of the VAWA 2005 requirements applicable to HUD programs. Now, VAWA 2013 extends these protections to victims of sexual assault participating in HUD-covered programs.
Admission, occupancy, and termination of assistance policies. The pre-VAWA 2013 requirements provided the following protections relating to admission, occupancy, and termination of assistance policies:
- Being a victim of domestic violence, dating violence, or stalking, as these terms are defined in the law, is not a basis for denial of assistance or admission to assisted housing if the applicant otherwise qualifies for assistance or admission (addressed in 24 CFR 5.2005(b));
- Incidents or threats of domestic violence, dating violence, or stalking won’t be construed as serious or repeated violations of the lease or as “good cause” for termination of the assistance, tenancy, or occupancy rights of the victim (addressed in 24 CFR 5.2005(c)(1)); and
- Criminal activity directly relating to domestic violence, dating violence, or stalking, engaged in by a member of a tenant’s household or any guest or other person under the tenant’s control, shall not be cause for termination of assistance, tenancy, or occupancy rights if the tenant or an immediate family member of the tenant is the victim (addressed in 24 CFR 5.2005(c)(2)).
In each of the protections described above, VAWA 2013 also adds sexual assault whenever the pre-VAWA 2013 language references “domestic violence, dating violence, or stalking.”
VAWA 2013 also expands protections relating to the prohibition of terminating assistance because of criminal activity directly relating to domestic violence, dating violence, sexual assault, or stalking by replacing the term “immediate family member” with “affiliated individual.” VAWA 2013 provides that criminal activity directly relating to domestic violence, dating violence, sexual assault, or stalking that is engaged in by a member of a tenant’s household or any guest or other person under the tenant’s control shall not be cause for termination of assistance, tenancy, or occupancy rights if the tenant or an affiliated individual of the tenant is the victim or threatened victim of the domestic violence, dating violence, sexual assault, or stalking. VAWA 2013 defines an “affiliated individual,” with respect to an individual, as a spouse, parent, brother, sister, or child of that individual, or an individual to whom that individual stands in place of a parent, or any individual, tenant, or lawful occupant living in the household of that individual.
Rights and responsibilities of PHAs, owners, and managers. VAWA 2013 continues to allow for lease bifurcation, but changes the language regarding the violent acts (“criminal acts of physical violence against family members or others” becomes “criminal activity directly relating to domestic violence, dating violence, sexual assault, or stalking against an affiliated individual or other individual”), and mandates that if such bifurcation occurs, and the removed tenant or lawful occupant was the sole tenant eligible to receive assistance under a covered housing program, the public housing authority (PHA), owner, or manager shall provide any remaining tenant the opportunity to establish eligibility for the covered housing program.
If the remaining tenant cannot establish eligibility, the PHA, owner, or manager is required to provide the tenant a reasonable time to find new housing or to establish eligibility under another covered housing program. VAWA 2013 provides that the appropriate agency, in this case HUD, with respect to HUD-covered programs, is to determine what constitutes a reasonable time.
Documentation of domestic violence, dating violence, sexual assault, or stalking, and confidentiality. Pre-VAWA 2013 requirements allowed a PHA, owner, or manager of assisted housing to request documentation that an applicant or tenant is a victim of domestic violence, dating violence, or stalking if the applicant or tenant seeks and requests the protections of VAWA. But VAWA didn’t require a request of this information. If a tenant or applicant doesn’t provide this documentation after it’s requested by the PHA, owner, or manager, then the PHA, owner, or manager may evict or terminate the assistance of the tenant or a family member, for violations of the lease or family obligations that otherwise would constitute good cause to evict or grounds for termination.
Pre-VAWA 2013 requirements mandated that any information submitted to a PHA, owner, or manager regarding domestic violence, dating violence, or stalking, including the fact that the individual is a victim of such abuse, be kept confidential and may not be entered into any shared database or disclosed to any other entity or individual, except to the extent that the disclosure is requested or consented to by the individual in writing, required for use in an eviction proceeding, or otherwise required by applicable law.
VAWA 2013 extends the documentation and confidentiality provisions found in the existing VAWA requirements to all HUD-covered programs. VAWA 2013, as did VAWA, requires a certification form approved by the appropriate agency (which is HUD for the HUD-covered programs).
Notification. Pre-VAWA 2013 requirements obligated each PHA, owner, and manager of assisted housing to provide notice to tenants of their VAWA rights, including the right to confidentiality and the limits thereof. Additionally, pre-VAWA 2013 requirements obligated each PHA to provide notice to owners and managers of assisted housing of their rights and obligations under VAWA.
Under VAWA 2013, HUD, as opposed to the individual housing provider, is to develop the notice outlining the applicant’s or tenant’s rights. VAWA 2013 also requires notice to be provided at the time the applicant is denied residency in a dwelling unit, at the time the individual is admitted to a dwelling unit, with any notification of eviction or notification of termination of assistance, and in multiple languages.
Emergency transfers. VAWA 2013 adds increased protection for victims of abuse by requiring HUD to adopt a model emergency transfer plan for use by PHAs, owners, managers, or other housing providers participating in HUD-covered programs. The model plan must allow tenants who are victims of domestic violence, dating violence, sexual assault, or stalking to transfer to another available and safe dwelling under a covered housing program and must incorporate reasonable confidentiality measures to ensure that the PHA, owner, or manager doesn’t disclose the location of the new dwelling unit of a tenant to a person that commits an act of domestic violence, dating violence, sexual assault, or stalking against the tenant.
The tenant can be granted a transfer only if he or she requests one, and either: (1) the tenant reasonably believes he or she is threatened with imminent harm from further violence if he or she remains in the unit; or (2) if the tenant is a sexual assault victim, the sexual assault occurred on the premises during the 90-day period preceding the transfer request. Any transfer is subject to the availability of other assisted housing and subject to all other HUD requirements being met.
In addition, VAWA 2013 requires HUD to establish policies and procedures under which victims of abuse requesting an emergency transfer may receive, subject to the availability of tenant protection vouchers, assistance through the tenant-based Section 8 program.