On March 24, HUD Secretary Julián Castro announced the imminent publication of proposed regulations implementing the Violence Against Women Act Reauthorization of 2013 (VAWA 2013). The media release includes a link offering a preview of the proposed rule, which is expected to be published in the Federal Register shortly.
VAWA provided protections and services for victims of domestic violence, sexual assault, and stalking, and authorized funding to combat and prosecute perpetrators of sexual and domestic violence crimes. As the preamble to the impending proposed rule notes, although VAWA refers specifically to women in its title, the statute makes clear that the protections are for all victims, regardless of sex, gender identity, sexual orientation, or age.
VAWA, as originally enacted in 1994, did not apply to HUD programs. When VAWA was reauthorized in 2005 (VAWA 2005), the public housing and Section 8 programs (both tenant-based and project-based) became subject to the law. Consequently, being a victim of domestic violence, dating violence, or stalking could not be the basis for denial of assistance or admission to public or Section 8 housing. VAWA 2005 also contained requirements regarding notification to tenants of the rights and protections provided under VAWA, provisions on the rights and responsibilities of public housing agencies (PHAs) and owners and managers of assisted housing, provisions pertaining to acceptable documentation of incidents of domestic violence and related acts, and maintaining the confidentiality of the victim.
Key changes resulting from reauthorization of VAWA in 2013 include:
- VAWA protections apply to other HUD programs, in addition to public housing and Section 8.
- Sexual assault is explicitly covered by VAWA protections.
- Housing providers must have emergency transfer plans.
- Tenants must have reasonable time to establish eligibility for assistance under a VAWA-covered program when an assisted household has to be divided as a result of domestic violence.
On August 6, 2013, HUD published a notice in the Federal Register describing how the VAWA 2013 changes affected HUD programs (see Memo, 8/9/13). The programs newly covered by VAWA 2013 were:
- HOME Investment Partnerships program
- McKinney-Vento Homeless programs (Emergency Solutions Grants, Continuum of Care, and Rural Housing Assistance Stability)
- Housing Opportunities for Persons With AIDS (HOPWA)
- Section 811 Supportive Housing for Persons with Disabilities
- Section 202 Supportive Housing for the Elderly
- Section 236
- Section 221(d)(3) Below Market Interest Rate (BMIR).
While the regulations would continue to contain the core VAWA requirements, the proposed rule includes program-specific regulations tailored to the nature of a given program. VAWA 2005 applied to PHAs, but as a result of VAWA 2013 and the addition of other HUD programs, in some programs, greater responsibility is placed on housing owners and managers to provide for and oversee VAWA protections. For example, under the HOME Investment Partnerships program states and localities receive the funds directly from HUD, but rental assistance is administered by the owner or manager.
HUD identifies major provisions in the preamble to the proposed rule, including:
- VAWA protections apply to the National Housing Trust Fund (NHTF). However, the proposed rule does not have NHTF-specific provisions, because as indicated in the definition of “covered housing program,” the proposed VAWA rule was drafted before the interim NHTF rule was published.
- Defines “affiliated individual.” VAWA 2013 replaced the term “immediate family member” with “affiliated individual.” The preamble explains that the replacement was intended to cover individuals lawfully occupying a unit but who may not meet the definition of “family.” HUD proposes to define “affiliated individual” as a) a spouse, parent, brother, sister, or child of that individual, or a person to whom that individual stands in the place of a parent to a child, or b) any individual, tenant, or lawful occupant living in the household of that individual.
Under VAWA, an affiliated individual does not receive VAWA protections if that 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. In addition, if the affiliated individual applies for housing assistance, the affiliated individual cannot be denied assistance on the basis that the affiliated individual is or has been a victim. The preamble adds that VAWA protections do not extend to guests, live-in aid caregivers, or unreported members of the household.
- Establishes a reasonable period of time for a tenant to establish eligibility to remain when a household is divided due to domestic violence. VAWA 2005 allowed PHAs, owners, and managers to “bifurcate” a lease, that is, they could evict or end assistance to any lawful occupant who engaged in criminal acts of physical violence or stalking, but not evict or end the assistance of others in the household. VAWA 2013 continues that policy, but provides that if the person removed as a result of bifurcation was the sole eligible tenant, remaining tenants must have a reasonable amount of time to establish their eligibility for the program, or if not eligible, find new housing.
HUD proposes a two-tiered, 90-day definition of “reasonable amount of time.” First, the rule would offer the tenant 60 calendar days from the date the lease is bifurcated to establish eligibility to remain in the unit. Second, the tenant would have another 30 calendar days to find alternative housing. Except for public housing and the voucher programs, the proposed rule would also allow housing providers to grant an additional 30-day extension.
- Establishes requirements for emergency transfer plans. VAWA 2013 required HUD to develop and adopt a model emergency transfer plan for use by housing providers. The statute requires the emergency transfer plan to allow a victim to transfer to another available and safe VAWA-covered dwelling if the tenant feels threatened with imminent harm from further violence. In the case of a victim of sexual assault, the emergency transfer plan must allow a transfer if the sexual assault occurred on the premises during the 90-day period preceding the tenant’s request for transfer. The emergency transfer plan must also have reasonable confidentiality measures to ensure that the housing provider does not disclose the location of the dwelling of a tenant to a person who commits an act of domestic violence, dating violence, sexual assault, or stalking against the tenant.
Instead of “reasonable confidentiality measures,” the proposed rule would substitute “strict,” stressing the importance of guarding the identity of the victim. The proposed rule would not require documentation of domestic violence for requests for emergency transfers.
NLIHC will provide more details and analysis in the coming weeks, as well as provide a sample comment letter for advocates to submit to HUD.
The previewed proposed rule is at http://portal.hud.gov/hudportal/documents/huddoc?id=5720p02vawa2013proprule.pdf
Information about the housing needs of victims of domestic violence, sexual assault, dating violence, and stalking is on page 6-1 of NLIHC’s 2015 Advocates’ Guide, http://nlihc.org/sites/default/files/AG_2015_FINAL.pdf