VAWA Reauthorization Act of 2013 – Updated HUD Guidance – Notice H 2017-05

On June 30, 2017, HUD issued Notice H 2017-05, Violence Against Women Act (VAWA) Reauthorization Act of 2013 – Additional Guidance for Multifamily Owners and Management Agents. This notice provides guidance to owners and management agents (O/As) of HUD multifamily assisted housing on the requirements of VAWA 2013. The notice supersedes Housing Notices H 2010-23 and H 2009-15.

The notice is applicable to the operation of the following programs:

• Project-based Section 8 programs under the United States Housing Act of 1937;
  • New Construction
  • State agency financed
  • Substantial rehabilitation
  • Section 202/8
  • Rural Housing Services (RHS) Section 515/8
  • Loan Management Set-Aside (LMSA)
  • Property Disposition Set-Aside (PDSA)
• Section 202/162 Project Assistance Contract (PAC);
• Section 202 Project Rental Assistance Contract (PRAC);
• Section 202 Senior Preservation Rental Assistance Contracts (SPRAC);
• Section 811 PRAC;
• Section 811 Project Rental Assistance (PRA)
• Section 236 (including RAP); and
• Section 221(d)(3)/(d)(5) Below Market Interest Rate (BMIR)

Background

On November 16, 2016, HUD published its VAWA Final Rule implementing the requirements of VAWA 2013. This notice expands on and clarifies the HUD Final Rule. Major changes for HUD Multifamily Housing programs include:

1. Specifies “sexual assault” as a crime covered by VAWA in HUD-covered programs;
2. Establishes new definitions (e.g., affiliated individual and sexual assault, and others) and revises previously defined terminology (e.g., bifurcate and stalking);
3. Establishes new requirements for notification of occupancy rights under VAWA, and transmits a Notice of Occupancy Rights under VAWA, form HUD-5380;
4. Establishes the requirements for creating an emergency transfer plan and for related record keeping and reporting, and provides both a model “Emergency Transfer Plan for Victims of Domestic Violence, Dating Violence, Sexual Assault, or Stalking,” form HUD-5381, and an “Emergency Transfer Request for certain victims of Domestic Violence, Dating Violence, Sexual Assault, or Stalking, form HUD-5383;
5. 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;
6. Where the O/A exercises the right 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 a 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; and
7. Clarifies that O/As may establish a preference for victims of domestic violence, dating Violence, sexual assault, or stalking, but are not required to do so.

Determining Who May Receive VAWA Protections

VAWA protections cover applicants, tenants and assisted families (both women and men), as defined under program regulations for the covered housing.

Guests, unassisted members, and live-in aides of a household are ineligible for VAWA protections that are available only to tenants.

As a reasonable accommodation, a tenant can request VAWA protections based on the grounds that a live-in aide is a victim of domestic violence, dating violence, sexual Assault, or stalking. If qualified, the tenant may request an emergency transfer for the entire household, including the live-in aide.

In cases where a guest or unassisted member is a victim, a tenant cannot be evicted or have assistance terminated based on the domestic violence, dating violence, sexual assault, or stalking of the guest or unassisted member.

Determining Eligibility for VAWA Protections

O/As may have to determine whether an adverse factor is a “direct result” of domestic violence, dating violence, sexual assault, or stalking. The law prohibits O/As from denying admission to, denying assistance under, terminating participation in, or evicting a tenant based on a adverse factor, if the adverse factor is determined to be 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.

An adverse factor refers to any factor that can be used as a basis for denying admission or assistance, terminating assistance or participation in a program, or evicting a tenant. If a denial or termination is required by a federal statute, based on a particular adverse factor, the O/A must comply with that statute, even if the adverse factor is a direct result of domestic violence, dating violence, sexual assault, or stalking. For example, if an applicant is subject to a lifetime registration requirement as a sex offender, the O/A must deny the applicant admission, even if the sex offense(s) was (or were) a direct result of the fact that the applicant was a victim of domestic violence, dating violence, sexual assault, or stalking.

The presence of an adverse factor may be due to an underlying experience of domestic violence, dating violence, sexual assault, or stalking. An adverse factor may be present during much of an abusive relationship, or it may present itself only when a victim is attempting to leave, or has left, the abusive relationship.

Examples of when adverse factors might be a direct result of domestic violence, dating violence, sexual assault, or stalking include:

1. Poor credit history – for example:
   • Forcing a victim to obtain credit, including credit cards for the perpetrator’s use;
   • Using a victim’s credit or debit card without permission;
   • Selling the victim’s personally identifiable information;
   • Running up debt on joint accounts;
   • Obtaining loans/mortgages in a victim’s name;
   • Preventing a victim from obtaining and/or maintaining employment;
   • Sabotaging work or employment opportunities, or causing a victim to lose his or her job by physically battering the victim prior to important meetings or interviews;
   • Placing utilities or other bills in a victim’s name and then refusing to pay;
   • Forcing a victim to work without pay in a family business, or forcing him or her to turn earnings over to an abuser;
   • Job loss or employment discrimination due to status as a victim;
   • Job loss or lost wages due to missed work to attend court hearings, seek counseling or medical care; and
   • Hospitalization and medical bills the victim cannot pay or cannot pay along with other bills.
2. Poor rental history – for example:
   • Property damage;
   • Noise complaints;
   • Harassment;
   • Trespassing;
   • Threats;
   • Criminal activity;
   • Missed or late rental or utility payments;
   • Writing bad checks to the landlord; and
   • Early lease termination.
3. Criminal Record – for example:
   • Forcing a victim to write bad checks;
   • Property damage;
   • Theft;
   • Disorderly conduct;
   • Threats;
   • Trespassing;
   • Noise complaints;
   • Family disturbance/trouble;
   • 911 abuse;
   • Public drunkenness;
   • Drug activity (drug use of the selling of drugs);
   • Crimes related to sex work;
   • Failure to protect a child from a batterer’s violence;
   • Crimes committed by a victim in self-defense; and
   • Human trafficking.
4. Failure to pay rent – for example:
   • The victim’s injury or temporary incapacitation;
   • The arrest of the only wage earning member of the household;
   • Preventing the victim from obtaining and/or maintaining employment;
   • Sabotaging work or employment opportunities; and
   • Causing the victim to lose the victim’s job.

Determining When Adverse Factors Are a Direct Result of Domestic Violence, Dating Violence, Sexual Assault, or Stalking

To trigger the direct result analysis, it is the responsibility of the applicant or tenant to:

1. Inform the O/A that he or she is a victim of domestic violence, dating violence, sexual assault, or stalking, and
2. Provide enough information for the O/A to make a determination regarding the adverse factor and that the adverse factor was the result of domestic violence, dating violence, sexual assault, or stalking.

The O/A should consider the individual’s statement and any supporting documentation in determining if an adverse factor was a direct result of domestic violence, dating violence, sexual assault, or stalking.

If further information is necessary for this determination, the O/A may request additional supporting documentation. However, any request for additional documentation must:

1. Be in accordance with the O/As policies or practices;
2. Not require evidence of domestic violence (other than as permitted by the VAWA statute); and
3. Comply with the VAWA confidentiality requirements.

The O/A must make an objectively reasonable determination, based on all the circumstances, whether the adverse factor is 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.

Certification & Documentation of Victim Status

The “Certification of Domestic Violence, Dating Violence, Sexual Assault, or Stalking, and Alternative Documentation,” form HUD-5382 may be used to document instances of domestic violence, dating violence, sexual assault, or stalking. This form supersedes the Multifamily Housing VAWA Certification form, JUD-91066, which is now obsolete.

The HUD-5382 must be made available by the O/A in multiple languages, consistent with HUD’s LEP guidance.

The notice provides additional guidance on the type of documentation that may be required to demonstrate victim status.

• Acceptance of verbal statement – O/As are not required to ask for documentation when an individual presents a claim for VAWA protections. The O/A may choose to provide protection based solely on an individual’s verbal statement.
• Requesting documentation – if the O/A chooses to require that an applicant document status as a victim of domestic violence, dating violence, sexual assault, or stalking, the O/A must make such request in writing. Simply providing the victim the certification form HUD-5382 does not constitute a written request for documentation.

Time to Submit Documentation

The O/A may require submission of documentation within 14 business days after the date that the request for documentation is made.

Once a victim provides documentation, the O/A is “encouraged” to acknowledge receipt of the documentation in a timely manner. (Note – HUD will clarify this issue when next updating HUD Handbook 4350.3).

Requests for Third Party Documentation of Victim Status

The VAWA final rule prohibits an O/A from requiring the victim to provide third party documentation of victim status, unless:

1. More than one applicant or tenant provides documentation to show he or she is a victim 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
2. Submitted documentation contains information that conflicts with existing information already available to the O/A.

In the case of (a) or (b) above, applicants or tenants may submit any of the following to meet the third party documentation request:

1. A document:
   1. 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;
   2. Signed by the applicant or tenant; and
   3. That specifies, under penalty of perjury, that the professional believes in the occurrence of the incident of domestic violence, dating violence, sexual assault, or stalking that is the ground for protection and remedies under the VAWA final rule, and that the incident meets the applicable definition of domestic violence, dating violence, sexual assault, or stalking under federal law; or
2. A record of a Federal, State, tribal, territorial, or local law enforcement agency, court, or administrative agency that documents the incident.
3. At the discretion of the O/A, a statement or other evidence provided by the applicant or tenant.

Timeframe to Respond

Applicants or tenants must be given 30 calendar days from the date of the request to provide such documentation.

If an applicant does not submit any third party documentation within the required time or submits documentation that does not meet the criteria in 1a, 1b, or 1c, above, the O/A may, but is not required to, accept that applicant or tenant’s assertion (form HUD-5382 or verbal statement) of victim status for the VAWA protections.

Denying VAWA Protections

If the O/A requests, but does not receive, third party documentation, the O/A has the option to deny VAWA protections and must notify the applicant or tenant. If this results in one of the tenants being terminated from assistance, the O/A must hold a separate hearing for that tenant.

Alternatively, the O/A may develop or follow an existing family break-up policy that may provide assistance to both persons seeking VAWA protections.

VAWA Lease Addendum

The Office of Multifamily Housing will soon issue an updated form HUD-91067, “VAWA Lease Addendum,” which will include the additional provisions required in the final rule. The updated lease provisions will include updates regarding:

1. Definitions;
2. VAWA Protections;
3. Documenting the occurrence of domestic violence, dating violence, sexual assault, or stalking; and
4. Remedies available to victims.

O/As must provide a new VAWA lease addendum (when issued) to all current households. This may be done at each household’s next Annual Recertification (AR) or at another timely opportunity. All subsequent new move-ins must also receive the updated VAWA lease addendum.

Notice of Occupancy Rights, form HUD-5380

O/As must issue the VAWA Notice of Occupancy Rights without changes to the core protections and confidentiality rights in the Notice. O/As must customize the Notice to reflect the specific program and specify the program operations that may pertain to or affect the VAWA Notice of Occupancy Rights. This may include additional language, so long as the language does not make changes to the core protections and confidentiality rights. Any added language cannot include additional requirements to receive VAWA protection.

The VAWA Notice of Occupancy Rights, along with the certification form HUD-5382, must be provided to existing households, applicants, and new move-ins/initial certifications no later than each of the following times:

1. For applicants –
   1. At the time the household is provided assistance or admission, and
   2. At the time the applicant is denied assistance or admission.
2. For existing households –
   1. Through December 15, 2017, at each household’s annual recertification (AR), and
   2. With any notification of eviction or termination of assistance, (but not with subsequent eviction or termination notices sent for the same infraction).

If households have already had their AR for 2017 and they were not provided with the forms, the O/A must provide the forms to those households through other means no later than 12/15/17. A note or documentation must be made in the files of those tenants indicating when the forms were provided to the household. Note – while the VAWA Final Rule does not require an applicant/household to sign acknowledgement of receipt of the forms, it is strongly recommended that O/As document each tenant file in a way that demonstrates when the required documentation was provided. It is recommended that the files be documented each time the documents are provided.

HUD also encourages O/As to post the VAWA Notice of Occupancy Rights and certification form on their websites and in public areas such as waiting rooms, community bulletin boards, and lobbies, where all tenants may view them.

HUD assumes that by December 15, 2017, all current households will have received the required forms and O/As are not required to provide the notice and certification form at future ARs.

Victim Confidentiality

Any information submitted to an O/A, including the fact that an applicant or tenant is or has been a victim of domestic violence, dating violence, sexual assault, or stalking, must be maintained in confidence by the O/A.

Employees of the O/A (or those who administer assistance on their behalf, e.g., contractors) must not have access to the information unless explicitly authorized by the O/A for reasons that specifically call for these individuals to have access to such information under Federal, State, or local law, and the O/A must not enter this information into any shared database, or disclose this information to any other entity or individual, except to the extent that disclosure is:

1. Requested or consented to in writing by the victim in a time-limited release;
2. Required for use in an eviction proceeding or hearing regarding termination of assistance; or
3. Otherwise required by applicable law.

The prohibition against entering this information into any shared database does not preclude the O/A from entering this information into a databases system used by the O/A that meets all requirements for securing sensitive personally identifiable information (PII).

Communicating with the Victim

Unless given permission by the victim to do so, the O/A must not leave messages that contain confidential information or refer to VAWA (e.g., asking the victim to come to the management office to pick up form HUD-5382) on the victim’s voicemail system or with other individuals, including members of the victim’s household. Leaving a voicemail requesting that the victim contact the O/A without reference VAWA is permissible. O/As should not send mail regarding the incident of domestic violence, dating violence, sexual assault, or stalking to the victim’s address, if the perpetrator may have access to the victim’s mail.

O/As may determine the procedures for requesting documentation in writing on a case-by-case basis. For example, policies should state whether the applicant or tenant requesting VAWA protections is required to come to an office or other space that may be safe for the individual to receive the written request and that reasonable accommodations will be made as necessary.

If the victim gives the O/A permission to contact him or her about the incident of domestic violence via mail, voicemail system, electronic mail, or other method approved by the victim, it is strongly recommended that this permission be obtained in writing.

When discussing these matters directly with the victim, take reasonable precautions to ensure than no one can overhear the conversation.

O/As may suggest – but cannot require – that the victim designate an attorney, advocate, or other secure contact for communications regarding the request for VAWA protections.

Best Practices to Collect Information & Avoid Unintentional Disclosure

1. Conduct the intake session in a private room, where the individual and staff person can talk without the risk of other staff or clients overhearing;
2. Explain the O/As information sharing policies;
3. Communicate to the individual which property management staff person is responsible for handling questions or complaints about confidentiality;
4. Provide adequate time for the individual to review and sign forms;
5. Post confidentiality notices in the management office and around the property;
6. Ensure that relevant staff understand confidentiality policies;
7. Post notices about the importance of maintaining confidentiality throughout the office;
8. Direct staff to respond to third-party inquiries only after verifying that written client consent has been obtained;
9. Clarify information sharing policies with referring/referral agencies and other service and business partners;
10. Maintain distinct phone lines for certain purposes;
11. Avoid using language referencing domestic violence in agency names, program name, organization names, and staff titles;
12. Use a post office (PO) box to receive written correspondence;
13. Serve individuals off-site as needed or when appropriate;
14. Provide interpretation and/or documents translated into the appropriate language when necessary; and
15. Provide accessible documents or assistance filling out forms for individuals with disabilities.

It should be noted that these are best practice recommendations, and some may not be feasible for all O/As.

Emergency Transfers – Note: this Notice contains requirements that are not specifically contained in the Model Emergency Transfer Plan provided by HUD

Emergency Transfer Plan

The VAWA Final Rule requires O/As to adopt an Emergency Transfer Plan, based on HUD’s Model Emergency Transfer Plan (form HUD-5381).

O/As must have adopted an Emergency Transfer Plan no later than June 14, 2017. For Management & Occupancy Reviews (MORs) conducted after June 30, 2017, but before December 14, 2017, reviewers will issue a Recommendation, rather than a finding, for non-compliance relating to the Emergency Transfer Plan. For MORs conducted after December 14, 2017, a Finding will be issued for non-compliance relating to the Emergency Transfer Plan.

I recommend that all O/As carefully review the Emergency Transfer Plan requirements of this notice and revise Emergency Transfer Plans to ensure the Plans contain all elements required by the notice.

Internal Transfers (moving to a unit in the same project)

The Emergency Transfer Plan must allow tenants who are victims of domestic violence, dating violence, sexual assault, or stalking to make an internal emergency transfer with a safe unit is immediately available. A victim determines whether a unit is safe. A best practice is to define “immediately available” as a vacant unit, ready for move-in within a reasonable period of time. It is up to the O/A to define “reasonable period of time.”

The Plan must describe policies for assisting a tenant in making an internal emergency transfer when a safe unit is not immediately available, and describe reasonable efforts the O/A will take to assist a tenant who wishes to make an external emergency transfer when a unit that meets the victim’s safety standard is not available.

O/As are encouraged to review their transfer waiting list policies in their Tenant Selection Plans in order to facilitate emergency transfers.

The emergency transfer requirements do not supersede any eligibility or occupancy requirements that may apply under a covered housing program.

External Emergency Transfers (moving away from the project to another project)

O/As are required to make reasonable efforts to assist a tenant who requests to make an external emergency transfer when a safe unit at the current property is not immediately available. O/As are not required to research available units and/or arrange for the move, but they can if they choose. Efforts should include providing contact information for relevant local service providers, government agencies, and other affordable housing developments in the area.

Emergency Transfer Plans must include the following:

1. A description of the reasonable efforts the O/A will take to assist a victim who wished to move to alternative housing, if a safe unit is not immediately available;
2. A statement that a tenant must be allowed to seek an internal and external emergency transfer concurrently if an internal safe unit is not immediately available; and
3. Policies for both assisting a tenant/applicant who is seeking an external emergency transfer under VAWA out of the property and an applicant who is seeking an external emergency transfer under VAWA into the property from another property.

Record Keeping & Reporting Requirements

The VAWA Final Rule requires that requests and outcomes of VAWA requests be reported to HUD annually. HUD plans to add these data elements to a future release of the Tenant Rental Assistance Certification System (TRACS). The following items should now be tracked to assist in reporting when the TRACS system is updated:

1. Number of emergency transfer requests received;
2. Number of requests resolved;
3. Number still pending;
4. Outcomes of requests –
   1. Number of internal unit transfers (within same project);
   2. Number relocated to other HUD-funded housing sites (e.g., other multifamily assisted, public housing/housing vouchers/ or HOME);
   3. Number of other move-outs; and
   4. Number of tenants who chose to remain in unit.

The requirement to report this information in not in effect until TRACS has been updated. HUD will communicate additional details at a later date.

Tips When Bifurcating a Lease

VAWA permits owners (when otherwise allowed by State or local laws) to “bifurcate” a lease in order to remove a perpetrator from a unit while permitting the victim to remain in the unit. While it may be a necessary step to protect victims of domestic violence, dating violence, sexual assault, or stalking, bifurcation may also result in family break-up. The HUD notice provides extensive guidance relating to family break-ups, and based on that guidance, I offer the following tips. If a victim informs the O/A that a family member is committing domestic violence against him or her and he or she wishes to remain in the unit, the following steps are recommended:

1. The O/A should already have provided the household members with their VAWA rights, but if not, this should be done immediately. Even if the victim was previously informed of his or her rights under VAWA, the O/A is again encouraged to provide the victim with the VAWA Notice of Occupancy Rights and certification form;
2. Accept the victim’s statement or request permitted documentation;
3. Ensure the victim knows of the upcoming notification of eviction of the perpetrator, including the exact date the notification will take place. At the same time, provide the victim with contact information for local victim service providers (the victim may need to leave the unit temporarily and stay in a domestic violence shelter until the eviction takes place);
4. Begin the eviction process. If the victim wants to move out of the unit for his or her safety, follow the requirements of the Emergency Transfer Plan. If the victim wants to stay in the unit, the O/A should bifurcate the lease by evicting the perpetrator and allowing the victim to remain on the lease. An Interim Recertification (IR) should be conducted to determine the new rent (this is required due to the change in family composition);
5. If the perpetrator requests a hearing, the O/A is encouraged to conduct an expedited hearing within no more than ten days following the effective date of the notice. The perpetrator has a right to examine the O/As documentation relevant to the eviction. This means the perpetrator has a right to examine the relevant documentation the victim provided when claiming VAWA protections. This is an exception to the victim’s confidentiality rights). To protect the victim’s safety, any information that would reveal the location of the victim, or the location of any services that the victim is receiving must be maintained confidentially (i.e., redacted from the shared documentation), unless it meets the exceptions noted in the law. O/As are encouraged to consult with local domestic violence experts or victim service providers (that have not worked with either the victim or perpetrator) to serve on the grievance hearing panel;
6. If it is determined that the perpetrator did indeed commit the acts, the case will then be moved to eviction court; and
7. If the eviction is upheld, the O/A processes the IR to remove the household member and completes the bifurcation of the lease agreement.

Remember, VAWA protections, including bifurcation, do not apply to guests or unreported members of a household or anyone else living in a unit who is not a tenant.

Eviction, removal, termination of occupancy rights, or termination of assistance must be done in accordance with the procedures prescribed by federal, state, or local law. Some jurisdictions may prohibit partial or single tenant evictions.

Once a lease is bifurcated, it becomes null and void once the O/A regains possession of the unit. The O/A should then execute a new lease with the victim. Note – as a result of lease bifurcation, it may be necessary to transfer the existing household to an appropriate size unit in accordance with the lease.

Establishing Waiting List Preferences

O/As may establish an admission preference for victims of domestic violence, dating violence, sexual assault, or stalking. HUD approval is not required to adopt such a preference, but O/As must modify their Tenant Selection Plan to include the owner-adopted preference.

This synopsis provides a summary of some of the major elements of the new HUD notice. The notice itself is very comprehensive and all O/As of covered properties should obtain and review the notice in detail. In order to avoid potential non-compliance with VAWA requirements, all O/As should have VAWA procedures in place and fully understood no later than December 14, 2017.