HUD Provides VAWA Guidance for PHAs and Owners Who Accept Vouchers

June 16, 2017

HUD’s Office of Public and Indian Housing recently issued Notice PIH-2017-08, which provides guidance on complying with the Violence Against Women Reauthorization Act of 2013 (VAWA 2013). The notice is directed to PHAs and owners of private housing who accept Housing Choice Vouchers.

HUD’s Office of Public and Indian Housing recently issued Notice PIH-2017-08, which provides guidance on complying with the Violence Against Women Reauthorization Act of 2013 (VAWA 2013). The notice is directed to PHAs and owners of private housing who accept Housing Choice Vouchers.

On Nov. 16, 2016, HUD issued a final rule (VAWA Final Rule) implementing VAWA 2013 for HUD’s housing programs. Because Notice PIH-2017-08 doesn’t touch on every aspect of the VAWA Final Rule, the notice should be used in conjunction with the VAWA Final Rule (which can be found here). The VAWA Final Rule includes core protections across HUD programs, ensuring individuals are not denied assistance, evicted, or have their assistance terminated because of their status as survivors of domestic violence, dating violence, sexual assault, or stalking, or for being affiliated with a victim. In addition, HUD programs must be operated in a manner consistent with the Equal Access Rule, which requires HUD-assisted housing be made available regardless of actual or perceived sexual orientation, gender identity, or marital status.

The notice summarizes the major changes to the Public Housing, Housing Choice Voucher (HCV), and Project Based Voucher (PBV) programs. Among the topics covered by the notice are who may receive VAWA protections, emergency transfers, family breakup, and lease bifurcation, and establishing waiting list preferences. Here, we’ll highlight the major changes to the Public Housing and voucher programs as a result of the VAWA Final Rule, as well as the certification and documentation of domestic violence, sexual assault, dating violence, or stalking.

Summary of Major Changes to Public Housing and Voucher Programs

As the notice explains, the VAWA Final Rule:

  • Specifies “sexual assault” as a crime covered by VAWA in HUD-covered programs;
  • Clarifies that, consistent with HUD’s nondiscrimination and equal opportunity requirements, victims of domestic violence, dating violence, sexual assault, and stalking cannot be discriminated against on the basis of any protected class, and HUD programs must also be operated in a manner consistent with HUD’s Equal Access Rule, which requires that HUD-assisted and HUD-insured housing must be available to all otherwise eligible individuals and families without regard to actual or perceived sexual orientation, gender identity or marital status;
  • Establishes new definitions (e.g., “affiliated individual” and “sexual assault”) and revises previously defined terminology (e.g., “bifurcate” and “stalking”);
  • Establishes new requirements for notification of occupancy rights under VAWA, and transmits a model Notice of Occupancy Rights Under the Violence Against Women Act (form HUD-5380);
  • Provides that applicants and tenants may not be denied assistance or have assistance terminated under a covered housing program on the basis of or as a direct result of the fact that the applicant or tenant is or has been a victim of domestic violence, dating violence, sexual assault, or stalking;
  • Establishes the requirement to create an emergency transfer plan, establishes record keeping and reporting requirements, and provides a model Emergency Transfer Plan for Victims of Domestic Violence, Dating Violence, Sexual Assault, or Stalking (form HUD-5381), and Emergency Transfer Request for Certain Victims of Domestic Violence, Dating Violence, Sexual Assault, or Stalking form (form HUD-5383);
  • Revises requirements for documenting the occurrence of domestic violence, dating violence, sexual assault, or stalking, and provides a new Certification of Domestic Violence, Dating Violence, Sexual Assault, or Stalking, and Alternate Documentation (form HUD-5382).
  • Where the covered housing provider exercises the option to bifurcate a lease and the evicted or terminated tenant was the recipient of assistance at the time of bifurcation, establishes a new requirement for reasonable time periods during which the tenant who is a victim of domestic violence, dating violence, sexual assault, or stalking may remain in the unit while establishing eligibility under the current housing program or under another covered housing program, or seeking alternate housing;
  • Revises various HCV, PBV, and Public Housing regulations from the 2005 reauthorization of VAWA (VAWA 2005) to broadly state that VAWA protections apply, so that all tenants and applicants, and not only those determined to be victims of domestic violence, dating violence, sexual assault, or stalking, receive statutorily required notification of their VAWA rights;
  • Clarifies that PHAs may establish a preference for victims of dating violence, sexual assault, and stalking, in addition to domestic violence; and
  • Establishes new requirements under PBV for a family’s right to move as a result of the family, or a member of the family, being or having been the victim of domestic violence, dating violence, dating violence, sexual assault, or stalking.

Certification of Domestic Violence, Sexual Assault, Dating Violence, or Stalking

VAWA 2013 required HUD to create a certification form to serve as a means of documenting the incident or incidents of domestic violence, dating violence, sexual assault, or stalking. The VAWA Final Rule provided this certification form: Certification of Domestic Violence, Dating Violence, Sexual Assault, or Stalking, and Alternative Documentation, form HUD-5382. PHAs must include form HUD-5382 with the VAWA Notice of Occupancy Rights (form HUD-5380). These forms are available at hud.gov/hudclips.

Form HUD-50066, Certification of Domestic Violence, Dating Violence, Sexual Assault, or Stalking, previously used for the Public Housing and HCV programs to serve as a means of documenting the incident or incidents of domestic violence, dating violence, sexual assault, or stalking is obsolete.

Form HUD-5382 is for use by all HUD-covered programs, including Public Housing and HCV programs, and it must be publicly available and provided upon request. The form HUD-5382:

  • Provides that VAWA 2013 protects applicants, tenants, and program participants from being evicted, denied assistance, or terminated from housing assistance based on act of domestic violence, dating violence, sexual assault, or stalking;
  • Is an optional way for victims to comply with a written request for documentation about the incident or incidents of domestic violence, dating violence, sexual assault, or stalking for persons seeking VAWA protections;
  • Provides that the victim or someone on the victim’s behalf may complete the form;
  • Provides a list of alternative third-party documentation to satisfy a request by a PHA or owner for documentation;
  • Explains the time period for responding to a written request for documentation;
  • Describes the confidentiality protections under VAWA;
  • Requires that the victim or someone filling out the form on the victim’s behalf must answer 10 numbered questions and provide a brief description of the incident(s);
  • Clarifies that the name of the accused perpetrator does not have to be provided if it is unknown to the victim or it cannot be provided safely;
  • Clarifies that the date and time of incident should be completed only if known by the victim;
  • Requires the victim or someone filling out the form on the victim’s behalf to certify to the truth and accuracy of the information being provided, and explains that false information could be the basis for denial of admission, termination of assistance, or eviction; and
  • Includes required public reporting burden information.

When practicable, HUD encourages PHAs and owners to advise applicants, tenants, and program participants that when the PHA or owner receives a form submitted on their behalf, such submission will take the place of the applicants, tenants, or program participants submitting their own statement. Thus, applicants, tenants, or program participants should ensure, to the extent possible, that the information is accurate and comprehensive.

The form HUD-5382 must be made available by the PHA in multiple languages, consistent with HUD’s Limited English Proficiency Guidance. In addition, consistent with civil rights requirements, when obtaining information through the form, PHAs must take appropriate steps to ensure effective communication with applicants, tenants, and participants with disabilities through the use of appropriate auxiliary aids and services, such as large print and braille documents, readers, interpreters, and accessible electronic documents. PHAs must also provide reasonable accommodations when necessary to allow applicants, tenants, and participants with disabilities to equally benefit from VAWA protections, such as providing individualized assistance in completing forms.

Acceptance of Verbal Statement

The VAWA Final Rule clarifies that PHAs and owners are not required to ask for documentation when an individual presents a claim for VAWA protections. The PHA or owner may instead choose to provide benefits to an individual based solely on the individual’s verbal statement or other corroborating evidence. HUD recommends that PHAs and owners develop written policies for how and under what circumstances a verbal statement will be accepted, such as the PHA was aware of the abuse and encouraged the victim to request VAWA protections. It is recommended that in cases where a PHA or owner decides to rely on such information, the PHA or owner document, in a confidential manner, the individual’s verbal statement or other corroborating evidence.

Requesting Documentation

If the PHA or owner chooses to request an individual to document her claim of domestic violence, dating violence, sexual assault, or stalking, the PHA or owner must make such request in writing. Simply giving the victim the form HUD-5382 does not constitute a written request for documentation, unless the form HUD-5382 is accompanied by a dated letter requesting documentation. The individual may satisfy this request by providing any one of the following documents:

a.     Form HUD-5382;

b.     A document signed by an employee, agent, or volunteer of a victim service provider, an attorney, or medical or mental health professional from whom the victim has sought assistance relating to domestic violence, dating violence, sexual assault, or stalking, or the effects of abuse; and that is signed by the applicant or tenant; and that specifies, under penalty of perjury, that the professional believes in the occurrence of the incident and that the incident meets the applicable definition of domestic violence, dating violence, sexual assault, or stalking under 24 CFR 5.2003; or

c.     A record of a federal, state, tribal, territorial, or local law enforcement agency (including a police report); court; or administrative agency; or

d.     At the discretion of a covered housing provider, a statement or other evidence provided by the applicant or tenant.

The PHA or owner must accept any of the above items. For example, form HUD-5382 must be accepted in lieu of any of the third-party documents outlined above (b or c), if the individual chooses to self-certify to satisfy the PHA or owner’s request for documentation, and the submitted documentation doesn’t contain conflicting information.

The PHA or owner has discretion to accept a statement or other evidence (d). PHAs are encouraged to develop written policies as to whether they will exercise discretion as provided for under (d). PHAs are encouraged to note whether a statement or other evidence will be accepted. If other evidence will be accepted, HUD recommends that the PHA or owner define “acceptable evidence.”

Time to Submit Documentation

The PHA or owner may require submission of documentation within 14 business days after the date that the individual received the written request for documentation. But the PHA or owner may extend this time period at its discretion. During the 14-business day period and any granted extensions of that time, no adverse actions, such as eviction or termination, can be taken against the individual requesting VAWA protection. For example, PHAs must not schedule an eviction, grievance hearing, informal review, or informal hearing to take place during this time frame.

In determining whether to extend the 14-business day period, PHAs and owners are encouraged to consider factors that may contribute to the victim’s inability to provide the documentation in a timely manner. These factors may include, but are not limited to: cognitive limitations, disabilities, limited English proficiency, absence from the unit due to hospitalization or time in an emergency shelter, administrative delays in obtaining police or court records, the danger of further violence, and the victim’s need to address health or safety issues. PHAs and owners must also grant reasonable accommodations for persons with disabilities. Also note that because of these factors, the PHA or owner might not be contacted by the victim with a request to extend the 14-business day period until after the 14-day period has passed.

Requests for Third-Party Documentation of Victim Status

When an applicant or tenant requests protection under VAWA, the VAWA Final Rule allows (but doesn’t require) the housing provider to require the applicant or tenant to submit documentation of victim status, such as documentation showing the applicant or tenant is or has been a victim of domestic violence, dating violence, sexual assault or stalking. However, the VAWA Final Rule prohibits a covered housing provider from requiring the victim to provide third-party documentation of victim status, unless:

  • More than one applicant or tenant provides documentation to show they are victims of domestic violence, dating violence, sexual assault or stalking, and the information in one person’s documentation conflicts with the information in another person’s documentation; or
  • Submitted documentation contains information that conflicts with existing information already available to the PHA or owner.

In these circumstances, the regulations allow a PHA or owner to require the applicant(s) or tenant(s) to submit third-party documentation that meets the appropriate criteria. According to the criteria, the applicant or tenant may submit any of the following to meet the third-party documentation request:

  • A document signed by an employee, agent, or volunteer of a victim service provider, an attorney, or a medical or mental health professional from whom the victim has sought assistance relating to domestic violence, dating violence, sexual assault, or stalking, or the effects of abuse; that is signed by the applicant or tenant; and that specifies, under penalty of perjury, that the professional believes in the occurrence of the incident and that the incident meets the applicable definition of domestic violence, dating violence, sexual assault, or stalking under 24 CFR 5.2003; or
  • A record of a federal, state, tribal, territorial, or local law enforcement agency, court, or administrative agency (for example, a police report) that documents the incident of domestic violence, dating violence, sexual assault, or stalking; or
  • At the discretion of the covered housing provider, a statement or other evidence provided by the applicant or tenant.

The applicant(s) or tenant(s) must be given 30 calendar days from the date of the request to provide such documentation. If an applicant or tenant responds with third-party documentation that meets the criteria above and supports the applicant or tenant’s VAWA request, the PHA or owner is prohibited from requiring further documentation of the applicant or tenant’s status as a victim of domestic violence, dating violence, sexual assault, or stalking. However, if an applicant or tenant doesn’t submit any third-party documentation within the required time period or submits documentation that doesn’t meet the criteria above, the PHA or owner may, but is not required to, accept that applicant or tenant’s assertion of victim status for the purpose of the VAWA protections.

For purposes of providing VAWA protections, satisfying the documentation criteria resolves the question of whether the applicant or tenant is a victim of domestic violence, dating violence, sexual assault, or stalking.

It’s important to note that in the case of conflicting documentation between two tenants, if one tenant submits a court order addressing rights of access or control of the property (such as a protection order granting the victim exclusive possession of the unit), the PHA or owner must honor this court order.

If the PHA or owner requests, but doesn’t receive third-party documentation, the PHA or owner has the option to deny VAWA protections and must notify the applicant or tenant. If this results in a tenant(s) being terminated from assistance, the PHA must hold a separate informal hearing (HCV) or grievance hearing (Public Housing) for the tenant. When denying VAWA protections, the PHA or owner must ensure that it complies with PIH Notice 2015-19. Alternatively, the PHA may have a family break-up policy allowing for assistance to be provided to both persons seeking VAWA protections.

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