Additional HUD VAWA Guidance – November 2017

The Department of Housing & Urban Development (HUD) recently issued clarifying guidance regarding the Violence Against Women Act (VAWA). The guidance addresses the following areas of VAWA:

• Applicability;
• Notice of Occupancy Rights & Certification Form;
• Emergency Transfers;
• Lease Addendum;
• Lease Bifurcation; and
• General Issues

 

This memo will outline the guidance provided by HUD, for each of the categories. Of critical importance is the HUD guidance regarding the Model Emergency Transfer Plan (see #4 under Notice of Occupancy Rights & Certification Form below).

 

Applicability

 

1. In addition to regular Section 8 projects, what other projects are required to comply with the VAWA 2013 Final Rule?
   1. VAWA 2013 applies to privately owned HUD-assisted properties under several types of contracts. It applies to PRAC projects (202 and 811) as well as Section 811 Project Rental Assistance (PRA), 202 Senior Preservation Rental Assistance Contract (SPRAC), and 202 Project Assistance Contract (PAC) projects. Other covered housing includes Section 236, 221(d)(3) and 221(d)(5) properties financed with a below-market or subsidized interest rate loan.
   2. If a property does not receive HUD rental subsidy or does not have a subsidized loan, the property is exempt.
2. Are properties with HUD-insured loans subject to the VAWA rules?
   1. No, unless the property operates with some type of HUD rental or interest rate subsidy program.
3. Any resident who is eligible at move-in may continue to receive VAWA protections as long as they reside at a covered property, regardless of income increases at a later date. For example, if a Section 8 resident goes to market rate, they are still protected by VAWA.

 

Notice of Occupancy Rights & Certification Form

 

1. Form HUD-91066 “Certification of Domestic Violence, Dating Violence, or Stalking” is now obsolete and should no longer be used. It has been replaced with the Certification form titled, “Certification of Domestic Violence, Dating Violence, Sexual Assault, or Stalking, and Alternate Documentation” (form HUD-5382) for all covered multifamily housing programs.
2. Owners/Agents (O/As) are required to provide translated documents when needed. All VAWA forms have been translated into Armenian, Cambodian, Creole, Japanese, Korean, Lao, Mandarin, Russian, Spanish, Thai, and Vietnamese and can be downloaded from Hudclips.
3. O/As may customize the Notice of Occupancy Rights (form HUD-5380) to reflect the type of assistance provided under the specific housing program and to specify the program operations that may pertain to or affect VAWA. However, the form’s core protections and confidentiality provisions may not be changed.
4. HUD has provided a critical clarification regarding the Model Emergency Transfer Plan (form HUD-5381). This form is intended as a model only and provides guidance for completing a comprehensive plan. Using the model as published by HUD will not satisfy VAWA’s Emergency Transfer Plan requirements. The O/A must customize the plan to meet all VAWA emergency transfer requirements. Additional information is provided below.
5. Only one set of forms – Notice of Occupancy Rights (form HUD-5380) and the Certification Form (form HUD-5382) – must be given to each household. There is no requirement to give the forms to each household member.
6. Although the VAWA Final Rule does not require applicants/tenants to sign a form acknowledging receipt of the forms, it is strongly recommended that O/As maintain a note or other documentation in each tenant file that indicates that each household was provided the required forms (forms HUD-5380 and 5382). This documentation should be provided at each of the following times:
   1. Household annual recertification between December 16, 2016 and December 15, 2017;
   2. At the time an applicant is denied assistance or admission;
      1. It should be noted that if an applicant goes to market rent due to an increase in income, assistance is being denied. Therefore, the owner must provide copies of the forms at that time. If assistance is later reinstated, the forms must be provided again.
   3. At the time a household is provided assistance or admission (i.e., at move-in); and
   4. With any notification of eviction or termination of assistance. Note – O/As do not need to provide the forms with subsequent notices sent for the same infraction.
7. O/As are not required to provide the forms to all persons on the waiting list, and it is not necessary to include the forms in application packets.
8. Since the VAWA Final Rule only applies to applicants and tenants of HUD covered housing programs, properties that have both project-based Section 8 and LIHTC units should seek guidance from the appropriate HFA for guidance in implementing VAWA for the LIHTC units that are not HUD-assisted.
   1. Note- O/As may choose to offer VAWA protections and remedies to all tenants and applicants. It is my recommendation that on layered projects of this type, all households be afforded VAWA protection.

 

Emergency Transfers

 

1. As noted above, the Model Emergency Transfer Plan (form HUD-5381) contains only general provisions of the comprehensive plan that O/As are required to prepare and implement. Adoption of the model plan without further information will not be sufficient to meet HUD requirements relative to the contents of an Emergency Transfer Plan. O/As must review the complete VAWA regulation and program specific HUD guidance when developing a specific plan.
2. O/As are not required to provide copies of an Emergency Transfer Plan to each household. However, O/As must make the Plan available upon request and, when feasible, make copies readily available to the public.
3. Since applicants are not residents, they are not eligible for emergency transfers. However, O/As may adopt an admission preference for applicants who are victims of domestic violence, dating violence, sexual assault, or stalking. If no such preference is adopted, applicants who are victims of domestic violence, dating violence, sexual assault, or stalking will be placed at the end of the admission waiting list. For this reason, I strongly recommend that such a preference be adopted.
4. With regard to internal and external transfers, The VAWA Final Rule does not define transfer priorities. The O/A has discretion to set priorities for transfers, and any such priority must be outlined in the project’s Emergency Transfer Plan. Any priorities must also be identified in the Tenant Selection Plan. However, all VAWA transfer requests should be considered emergencies, and should generally be given priority over any non-emergency transfer request.
5. O/As that own or manage multiple properties are not required to make emergency transfers between properties in their portfolio. The transferring resident must reapply at each project. However, a management agent (with consent from owners) may implement a VAWA preference at all of their properties to give priority to residents of the agent’s other managed properties, but are not required to do so.
6. While issues relating to O/A liability should be addressed with the O/As legal counsel, HUD does not require or expect the O/A to determine whether a unit is safe from an abuser or ensure that a victim moves to a unit that is safe from an abuser. For purposes of emergency transfers under VAWA, a “safe unit” refers to a unit that the victim of domestic violence, dating violence, sexual assault, or stalking believes is safe. This assumes that VAWA confidentiality requirements are met.
7. With regard to the moving costs of victims when transferring from one unit to another under the VAWA Emergency Transfer Plan, there is no HUD requirement that an O/A pay moving costs for the households. O/As should continue to follow the existing policies relative to transfer costs for affected projects.

 

Lease Addendum

 

1. Each adult household member must sign the VAWA Lease Addendum form. HUD will add additional signature lines in the updated VAWA Lease Addendum (form HUD-91067).
2. 202/811 PRAC properties should not implement the VAWA Lease Addendum until HUD updates the form HUD-91067 to include those properties. This also applies to projects funded with 811 PRA, 202 SPRAC, and 202 PAC projects.
3. The revised VAWA Lease Addendum will also include a bifurcation clause.

 

Other Issues

 

1. O/As may not require tenants to obtain restraining orders in order to document victim status. Except in the case of conflicting information, O/As are prohibited from requiring victims to provide third party documentation of victims of domestic violence, dating violence, sexual assault, or stalking. Even in such cases, the O/A must accept any of the types of documentation listed in the VAWA Certification form, HUD-5382.
2. While an O/A cannot penalize a VAWA victim based on the fact that the victim still has a relationship with the abuser, VAWA does not limit the authority of an O/A to evict a tenant if the O/A can demonstrate that an actual and imminent threat to other tenants or those employed at or providing services to the property would be present if the tenant or lawful resident is not evicted or terminated from assistance.
3. Confidentiality – the VAWA Final Rule does not require VAWA documentation to be maintained in a specific location. However, HUD’s VAWA regulation restricts disclosure of VAWA information to individuals other than the victim unless specific conditions are met. O/As must not enter confidential information into any shared database. Because domestic violence often occurs within the household, and the members of the household can review the tenant file, the regulation requires confidential record keeping in a location other than the tenant file. This requirement is also contained in HUD Handbook 4350.3. All information relating to an individual’s experience with domestic violence, dating violence, sexual assault, or stalking must be kept in a file that is in a separate and secure location from other tenant files.

 

The VAWA regulations are complex and far-reaching. O/As need to develop comprehensive policies relating to the VAWA requirements and need to ensure that all staff who may be required to participate in the implementation of the VAWA regulations be adequately trained in the HUD requirements. The clarifications outlined in this memo should be shared with that staff.