HUD Secretary Julian Castro announced on March 25, 2015 that HUD’s proposed regulation implementing the Violence Against Women Act of 2013 (VAWA 2013) will shortly be published in the Federal Register. The rule will implement the VAWA 2013, which expands HUD’s authority to protect survivors of domestic and dating violence, stalking, and sexual assault who are residing in housing assisted by HUD. VAWA 2013 also expands VAWA protections to HUD programs beyond HUD’s public housing and Section 8 Programs, which were originally covered by VAWA. Affected programs also include the Rural Development Section 515 Program and the Low-Income Housing Tax Credit (LIHTC) Program. HUD is also publishing for comment two documents concerning tenant protections required by VAWA 2013 – a notice of occupancy rights and an emergency transfer plan.
VAWA 2013 expands the 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 a VAWA-covered program where an assisted household has to be divided as a result of domestic violence.
Summary of the Major Provisions of the Proposed Rule
Key regulatory provisions to be addressed by the rule include proposed regulations that would:
*Include “sexual assault” as an action covered by VAWA protections, an action that was not included in the original 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;
*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 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;
*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; and
*Establish what documentation requirements, if any, should be required of a tenant seeking an emergency transfer to another assisted unit.
The Proposed Rule
Following are the regulatory changes that HUD proposes to make to HUD’s regulations to fully implement VAWA 2013:
- HUD’s Cross-Cutting VAWA Regulations – 24 CFR Part 5, Subpart L
The regulations in 24 CFR part 5, subpart L, establish the core requirements of VAWA and how the VAWA requirements are to be implemented generally. However, given the statutory parameters of the individual covered housing programs, the proposed regulation may provide for some VAWA protections to be applied differently from that provided in the part 5 regulations.
The variations in implementation primarily pertain to the requirements governing lease bifurcation, emergency transfers, and who can request documentation pertaining to incidents of domestic violence, dating violence, sexual assault, or stalking. For some of the newly covered programs, greater responsibility to provide and oversee VAWA protections is placed on the entities that receive funding directly from HUD. For the other newly covered programs, more responsibility is placed on the housing owners or managers. HUD is particularly interested in receiving comments regarding VAWA 2013 implementation for these newly covered programs.
Changes in Definitions
Affiliated Individual: VAWA 2013 replaces the term “immediate family member” with “affiliated individual.” VAWA 2013 defines “affiliated individual” to mean, with respect to an individual: “(A) a spouse, parent, brother, sister, or child of that individual, or an individual to whom that individual stands in loco parentis [in place of a parent]; or (B) any individual, tenant, or lawful occupant living in the household of that individual.” This change in language is intended to cover individuals lawfully occupying a unit but who may not necessarily meet a definition of “family.”
Under VAWA, immediate family members or affiliated individuals do not receive VAWA protections if the individual is not on the lease. However, if an affiliated individual is a victim of domestic violence, dating violence, sexual assault, or stalking, and the tenant is not the perpetrator of such actions, the tenant cannot be evicted or have assistance terminated due to the domestic violence, dating violence, sexual assault, or stalking suffered by the affiliated individual. Also, if the affiliated individual applies for housing assistance, they cannot be denied assistance on the basis of their having been a victim of domestic violence, dating violence, sexual assault, or stalking.
VAWA protections do not apply to guests or unreported members of the household. Also, while a live-in aide or caregiver who resides in a unit may be a lawful occupant, such individual is not a tenant and the protections of VAWA do not apply.
Bifurcate: The rule amends the definition of “bifurcate” to remove reference to a “public housing or section 8 lease” since VAWA 2013 makes bifurcation of a lease an option in all covered housing programs, subject to permissibility to bifurcate a lease under the program requirements and/or state and local laws, as may be applicable.
VAWA Protections – New Protections
Notice of Occupancy Rights and Certification Form: VAWA 2013 requires that HUD develop a notice of rights available under VAWA. The housing provider must distribute this notice to applicants and residents. HUD has developed a proposed notice and the notice is part of the proposed regulation. HUD is taking the position that the notice must be provided with no substantive change to the content. However, housing providers may customize the notice to reflect the specific assistance provided under the particular covered housing program, and to their program operations that may pertain to the notice of occupancy rights.
You may recall that I prepared a recommended Notice of Occupancy Rights while awaiting the HUD developed notice. Once the final HUD notice is issued, housing providers should use the HUD provided Notice and tailor it to their needs.
HUD has also developed a Certification Form for use by applicants and residents to certify status as a victim of domestic violence.
Changes Relating to the Emergency Transfer Plan
VAWA 2013 requires HUD to develop a model emergency transfer plan, which it has done as part of this proposed regulation. The model plan retains most of the components of the statute as written. However, the statutory language refers to “reasonable confidentiality measures” to ensure that the housing provider does not disclose the location of the dwelling unit or a tenant to a person who commits the act of domestic violence, dating violence, sexual assault or stalking. HUD is replacing the word “reasonable” with “strict” confidentiality measures. This indicates the importance HUD gives to the protection off these victims.
Documenting the Violence
VAWA 2013 does not make significant changes to the documentation procedures required by the 2005 law, but there are some changes.
Any request from a housing provider to an applicant or tenant for documentation of entitlement to protection must be made in writing. Once requested, the applicant or tenant has 14 business days to submit the required documentation, but the housing provider may extend this deadline. Permitted documentation remains the same as in my prior memo on VAWA. Form HUD-50066 is used for programs covered by HUD’s Office of Public and Indian Housing. HUD-91066 is used for covered housing programs administered by HUD’s Office of Multifamily Housing. HUD is in the process of updating this into one form to be used for all HUD housing programs. This proposed certification form will be contained in Appendix C to the proposed rule.
Remedies Available to Victims
One of the primary statutory remedies for victims of domestic violence, if the person removed as a result of lease bifurcation is the eligible recipient of assistance, is that the remaining member(s) be given reasonable time to qualify for the housing program. If they do not qualify, they should be given reasonable time to find suitable replacement housing. The problem is that each covered program has its own rules regarding eligibility. HUD is clearly unsure how to handle this and is seeking comprehensive comments on the issue in the proposed regulation. It is unlikely that we will have clear guidance on this issue until publication of the final rule, and perhaps not even then. HUD is proposing 90-days as the reasonable period for remaining tenants to establish eligibility. [Owners of LIHTC and Rural Development Projects will need guidance from the IRS and Rural Development, but indications are that those agencies will defer to HUD timeframes). As proposed, the rule provides for 60 calendar days, commencing from the date of bifurcation of the lease, for the tenant to establish eligibility to remain in the unit in which the tenant is now residing. If eligibility cannot be established, the rule provides for 30 calendar days, commencing from the 61st day from the date of bifurcation of the lease for the tenant to find alternative housing. HUD is proposing division of the time period for the tenant to obtain housing so that the tenant has sufficient opportunity to explore both options, provided by statute, for the tenant to obtain housing.
The proposed rule would allow, but not require, housing providers to grant an extension for up to 30-days, subject to the program regulation of the covered housing program. However, for certain programs that are likely to have waiting lists (public housing and voucher), the proposed rule provides a maximum 90-days, with no extension.
All owners and managers involved in covered housing programs should review the proposed regulation.