Brian Brown's Official Website

Sponsored by

Brian Recommands

Sponsored by

One of Brian’s Favorite Quotes

Oh, what a tangled web we weave when first we practice to believe.”
— Laurence J. Peter (1919–1988)
 Misquoting Sir Walter Scott, The Peter Principle (1969)

Violence Against Women Reauthorization Act of 2013: Implementation in HUD Housing Programs

This section of the preamble describes the regulatory changes that HUD proposes to make to HUD’s regulations to fully implement the rights and protections of VAWA 2013.
A. HUD’s Cross-Cutting VAWA Regulations—24 CFR Part 5, Subpart L
Subpart L of 24 CFR part 5 contains the core requirements of VAWA 2013 that are applicable to the HUD housing programs covered by VAWA (defined in this proposed rule as “covered housing programs”). The regulations in this subpart are supplemented by the regulations for the covered housing programs. The program-specific regulations address how certain VAWA requirements are to be implemented for the applicable covered housing program, given the statutory and regulatory framework for the program. While 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, the program specific regulations, given the statutory parameters of the individual covered housing program, 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: Bifurcation of a lease to remove the perpetrator of domestic violence, dating violence, sexual assault, or stalking; emergency transfers; and who can request documentation pertaining to incidents of domestic violence, dating violence, sexual assault, or staking. The variations are largely found in the programs administered by HUD’s Office of Community Planning and Development (CPD).
VAWA 2013 continues to contain language that reflects the structure of the HUD housing programs first covered by VAWA 2005; that is, housing that is administered by a public housing agency (PHA). The VAWA 2013 provisions do not quite match the structure of the newly covered HUD programs, in which housing is not administered by a PHA. In proposing how the VAWA protections are to be implemented in the newly covered programs, HUD took into account both the statutory and regulatory framework of each program and HUD’s experiences in both administering the program and in working with the different entities that administer the program. In each case, HUD strived to fulfill the underlying intent of the VAWA protections and provide meaningful protection to victims of domestic violence, dating violence, sexual assault, or stalking. As the proposed regulatory text reflects, 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. For example, the HOME Investment Partnerships Program (HOME program) provides formula grants to States and localities for a wide range of activities including building, buying, and/or rehabilitating affordable housing for rent or homeownership or providing direct rental assistance to low-income people, but the States and local jurisdictions are not responsible for administering assistance for rental housing in the same way that public housing agencies administer the public housing program. Under the HOME program, the assistance is administered by the property owner or manager, with the directly funded agencies (the states and localities) overseeing the administration of this eligible activity.
[2]

Additionally, some of the newly covered programs provide more discretion to the entities that HUD funds, while others are more prescriptive. For example, under HUD’s Housing Opportunities for Persons With AIDS (HOPWA) program, the authorizing statute allows for family members of a HOPWA-eligible tenant who dies, to continue for a reasonable grace period, not to exceed 1 year, to remain in the unit, and provides assistance with moving expenses to the remaining family members. These program variations are reflected in the proposed regulations set out in this rule.

Specific solicitation of comment 1: HUD specifically seeks comment from the participants in each of the HUD-covered programs, who are familiar with how a specific HUD-covered program operates, on whether the proposed regulations for the specific HUD-covered program carry out the intent of VAWA within the statutory parameters of the program.
Applicability (24 CFR 5.2001)
Existing § 5.2001 lists the HUD programs covered by VAWA. This rule would amend § 5.2001 to include the new HUD housing programs added by VAWA 2013, and to advise that the regulations in 24 CFR part 5, subpart L, address the statutory requirements of VAWA but that application of the requirements to a specific program, as discussed in the preceding section, may vary given the statutory and regulatory framework of that individual covered housing program.

As provided in § 5.2001, applicable “assistance” provided under the covered housing programs generally consists of two types (one or both): Tenant-based rental assistance, which is rental assistance that is provided to the tenant; and project-based assistance, which is assistance that attaches to the unit in which the tenant resides. For project-based assistance, the assistance may consist of such assistance as operating assistance, development assistance, and mortgage interest rate subsidy. Unless specificity is necessary to identify a particular type of assistance covered by VAWA, this preamble and the proposed regulations use the term “assistance” to refer broadly to the assistance provided under the covered housing programs.
Definitions (§ 5.2003)

Introductory text (Revised): The introductory text of § 5.2003 provides that certain terms are defined in subpart A of 24 CFR part 5. This rule would remove the terms “1937 Act” and “Responsible Entity” from the introductory text, as these terms are no longer used in this subpart given the extension of VAWA protections beyond 1937 Act programs.

Actual and imminent threat (Moved from § 5.2005(e) to § 5.2003): The definition of “actual and imminent threat” is currently found in § 5.2005(e). HUD does not propose to revise the definition, but rather to move the definition from § 5.2005(e) to the definition section, § 5.2003. HUD believes that the definition of “actual and imminent threat” is more appropriately placed in the definition section of the VAWA regulations.

Affiliated Individual (New): 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; or (B) any individual, tenant, or lawful occupant living in the household of that individual.” The replacement of “immediate family member” with “affiliated individual” is intended to cover individuals lawfully occupying a unit but who may not necessarily meet a definition of “family.”
[3]

Under VAWA, an individual who is an immediate family member as defined under VAWA 2005 or an affiliated individual under the broader terminology adopted in VAWA 2013 does 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 because of the domestic violence, dating violence, sexual assault, or stalking suffered by the affiliated individual. In addition, if the affiliated individual were to apply for housing assistance, the affiliated individual could not be denied assistance on the basis that the affiliated individual is or has been a victim of domestic violence, dating violence, sexual assault, or stalking.
HUD adds this definition of “affiliated individual” to § 5.2003, but proposes to modify the statutory definition slightly for purposes of clarity and replaces the Latin term “in loco parentis” with plain language terminology. HUD proposes to define “affiliated individual” as follows: Affiliated individual, with respect to an individual, means: (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 (for example, the affiliated individual is a child in the care, custody, or control of that individual); or (B) any individual, tenant, or lawful occupant living in the household of that individual.
In response to HUD’s August 6, 2013, notice, a few commenters asked for more information about who could be considered an “affiliated individual,” and whether a live-in aide or caregiver would qualify. A commenter stated that because program participants must inform housing authorities and gain approval for the admittance of all household members, “affiliated individuals” should not include those who are unreported members of a household, or else it would result in the situation in which VAWA protections would extend to individuals violating program regulations.
HUD agrees with the commenter and does not read the statute to apply VAWA protections to guests, and unreported members of the household. The protections of VAWA are directed to the tenants. Generally, tenants in the HUD programs covered by VAWA (in some HUD programs, tenants are referred to as “program participants” or “participants”) are individuals, who, at the time of admission, were screened for compliance with the eligibility requirements specified by the HUD covered program in which the tenant participates. Once admitted, these tenants have contractual rights under a lease and may have certain administrative protections, such as a right to an informal hearing before termination of assistance or eviction occurs. These rights and privileges do not apply to unauthorized or unreported members of the household, such as guests, nor do they apply to affiliated individuals.
[4]

If a guest, an unreported member of the household, or an affiliated individual is sexually assaulted, the tenant may not be evicted because of the sexual assault, as long as the tenant was not the perpetrator. While a live-in aide or caregiver who resides in a unit may be a lawful occupant, nonetheless such individual is not a tenant and the protections of VAWA would not apply, except that the live-in aide or caregiver cannot be denied assistance if he or she independently applies for assistance. Similarly, if an affiliated individual is a victim of domestic violence, dating violence, sexual assault, or stalking, the tenant with whom the affiliated individual resides cannot be evicted or have assistance terminated on the basis of the violence suffered by the affiliated individual, and, consequently, the affiliated individual may receive indirectly the benefit of continued assistance to the tenant.

A commenter asked that the VAWA regulations contain a definition of “family” that is consistent with HUD’s definition of “family” at 24 CFR 5.403. With the removal of reference to “family” in the VAWA statute and regulations, HUD believes there is no need to add a definition of “family” in the VAWA regulations. Additionally, the majority of HUD programs covered by VAWA 2013 already incorporate the definition of “family” in 24 CFR 5.403.
[5]

Bifurcate (Revised): Bifurcation of a lease was provided in VAWA 2005 as an option available to a covered housing provider (which term is defined below), and bifurcation of a lease remains an option, not a mandate under VAWA 2013.
This rule would amend 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.

This rule also proposes to revise the definition of “bifurcate” to reflect that VAWA 2013 authorizes a covered housing provider to evict, remove, or terminate assistance to any individual who is a tenant or a lawful occupant of a unit and who engages in criminal activity directly relating to domestic violence, dating violence, sexual assault, or stalking against an affiliated individual or other individual, without evicting, removing, terminating assistance to, or otherwise penalizing a victim of such criminal activity who is also a tenant or lawful occupant of the housing.
The rule proposes to define “bifurcate” to mean dividing a lease as a matter of law, subject to the permissibility of such process under the requirements of the applicable covered housing program and State or local law, such that certain tenants or lawful occupants can be evicted or removed and the remaining tenants or lawful occupants can continue to reside in the unit under the same lease requirements or as may be revised depending upon the eligibility for continued occupancy of the remaining tenants and lawful occupants.
VAWA 2013 also revises the bifurcation process in VAWA 2005, and these changes are addressed in § 5.2009.

Covered housing program (New): VAWA 2013 includes a definition for “covered housing program.” The statutory definition includes the VAWA 2005 covered housing programs (public housing and Section 8 programs) and the new HUD housing programs added by VAWA 2013. HUD proposes to adopt the statutory definition, with the proposed inclusion of the Housing Trust Fund program, as discussed below.
[6]

For some of the HUD covered housing programs, the program may include assistance to which VAWA protections may not apply. For example, HUD’s HOME program offers homeownership assistance (see 24 CFR part 92), and the HOME program’s homeownership assistance is not covered by VAWA. The type of assistance to which VAWA protections apply, based on the statutory provisions themselves, is assistance for rental housing, as discussed under the proposed definition of “assistance.” This type of assistance generally involves a tenant, a landlord (the individual or entity that owns and/or leases rental units) and a lease specifying the occupancy rights and obligations of the tenant.
[7]

It is this relationship in which VAWA intervenes to ensure that, in covered housing programs, a tenant or other lawful occupant who is a victim of domestic violence, dating violence, sexual assault, or stalking is not further victimized by being evicted, having assistance terminated, or having assistance denied solely because the individual is a victim of domestic violence, dating violence, sexual assault, or stalking.

Accordingly, this rule defines “covered housing program” to encompass the HUD programs specified by the statute. The following highlights the types of assistance in which the VAWA protections apply to a covered housing program, given the statutory structure of the program. HUD does not highlight in the regulatory text of 24 CFR part 5, subpart L, the types of assistance within each covered housing program to which VAWA protections apply or may not apply. Programs change, as a result of statutory changes, including changes made by appropriations acts, and providing such specificity of assistance in the part 5 regulatory text could quickly be outdated. However, the program-specific regulations will reflect any changes in the coverage of VAWA protections.
(1) Section 202 Supportive Housing for the Elderly (12 U.S.C. 1701q), with implementing regulations at 24 CFR part 891. Coverage of the Section 202 Supportive Housing for the Elderly program includes Senior Preservation Rental Assistance Contracts (SPRAC), and Project Assistance Contracts (PAC). Coverage excludes Section 202 Direct Loan Projects that are without project-based Section 8 assistance (assistance necessary for VAWA coverage).
[8]

(2) Section 811 Supportive Housing for Persons with Disabilities (42 U.S.C. 8013), with implementing regulations at 24 CFR part 891. Coverage of the Section 811 Supportive Housing for Persons with Disabilities program includes housing assisted under the Capital Advance Program and the Section 811 Rental Assistance Program, as authorized under the Frank Melville Supportive Housing Investment Act (Pub. L. 111-274, approved January 4, 2011).

(3) Housing Opportunities for Persons With AIDS (HOPWA) program (42 U.S.C. 12901 et seq.), with implementing regulations at 24 CFR part 574. Coverage of the HOPWA program includes housing receiving assistance as provided in 24 CFR 574.320 and 574.340. In addition, and as provided in the HOPWA regulations, the protections of VAWA apply to project-based assistance or tenant-based rental assistance as provided in § § 574.300 and 574.320, and to community residences as provided in § 547.300.

(4) HOME Investment Partnerships (HOME) program (42 U.S.C. 12741 et seq.), with implementing regulations at 24 CFR part 92. Coverage of the HOME program includes HOME tenant-based rental assistance and rental housing assisted with HOME funds, except as may be otherwise provided in 24 CFR 92.359.

(5) Homeless programs under title IV of the McKinney-Vento Homeless Assistance Act (42 U.S.C. 11360 et seq.), including the Emergency Solutions Grants program (with implementing regulations at 24 CFR part 576, coverage includes short- and medium-term rental assistance as provided in 24 CFR 576.407(g)), the Continuum of Care program (with implementing regulations at 24 CFR part 578), and the Rural Housing Stability Assistance program (with regulations forthcoming, see March 27, 2013, proposed rule at 78 FR 18726, and 78 FR 18746).
[9]

For the Continuum of Care program, the VAWA protections apply to all permanent housing and transitional housing, except safe havens,
[10]

for which Continuum of Care grant funds are used for acquisition, rehabilitation, new construction, leasing, rental assistance, or operating costs. The VAWA protections also apply where funds are used for homelessness prevention, but only where the funds are used to provide short- and/or medium-term rental assistance.
[11]

(6) Multifamily rental housing under section 221(d)(3) of the National Housing Act (12 U.S.C. 17151(d)) with a below-market interest rate (BMIR) pursuant to section 221(d)(5), with implementing regulations at 24 CFR part 221. The Section 221(d)(3) BMIR program insured and subsidized mortgage loans to facilitate new construction or substantial rehabilitation of multifamily rental cooperative housing for low- and moderate-income families. The program is no longer active, but Section 221(d)(3) BMIR properties that remain in existence are covered by VAWA. Coverage of Section 221(d)(3)/(d)(5) BMIR housing does not include section 221(d)(3)/(d)(5) BMIR projects that

refinance under section 223(a)(7) or 223(f) of the National Housing Act where the interest rate is no longer determined under section 221(d)(5).
(7) Multifamily rental housing under section 236 of the National Housing Act (12 U.S.C. 1715z-1), with implementing regulations at 24 CFR part 236. Coverage of the Section 236 program includes not only those projects with mortgages under section 236(j) of the National Housing Act, but also non-FHA-insured projects that receive interest reduction payments (“IRP”) under section 236(b) of the National Housing Act and formerly insured Section 236 projects that continue to receive interest reduction payments through a “decoupled” IRP contract under section 236(e)(2) of the National Housing Act. Coverage also includes projects that receive rental assistance payments authorized under section 236(f)(2) of the National Housing Act.

(8) HUD programs assisted under the United States Housing Act of 1937 (42 U.S.C. 1437 et seq.), specifically, public housing under section 6 of the 1937 Act (42 U.S.C. 1437d)
[12]

(with regulations at 24 CFR chapter IX), tenant-based and project-based voucher assistance under section 8 of the 1937 Act (42 U.S.C. 1437f) (with regulations at 24 CFR chapter VIII and IX), and the Section 8 Moderate Rehabilitation Single-Room Occupancy (SRO) (with implementing regulations at 24 CFR part 882, subpart H).

(9) The Housing Trust Fund (12 U.S.C. 4568) (with regulations forthcoming). In addition to the statutorily covered housing programs, HUD proposes to include in the definition of “covered housing programs” the Housing Trust Fund (HTF). In its proposed rule to establish program regulations for HTF, published on October 29, 2010, at 75 FR 66978, HUD proposed to codify the HTF program regulations in the same CFR part, 24 CFR part 92, in which the HOME program regulations are codified. HUD stated that the reason for the proposed codification of the HTF regulations in the same CFR part as the HOME program regulations was that the two programs were similar to each other in most respects.
[13]

Given the similarities between the HTF program and the HOME program, and the statutory coverage of the HOME program by VAWA 2013, HUD submits that the HTF is an appropriate program to add to the list of covered programs.

Specific solicitation of comment 2: HUD specifically solicits comment on applying VAWA protections to rental housing assisted under the HTF program in the same manner that HUD is proposing to apply the VAWA protections to rental housing assisted under the HOME program.

Covered housing provider (New): This rule proposes to add a definition of “covered housing provider.” This term would be used in the part 5, subpart L, regulations to refer collectively to the individuals or entities under the VAWA covered housing programs, such as a public housing agency (PHA), state or local government, sponsor, owner, mortgagor, grantee, recipient, or the subrecipient that has responsibility for the administration and/or oversight of VAWA protections. The existing regulations in 24 CFR part 5, subpart L, reference only PHAs and owners and managers of assisted housing, reflecting the limited coverage by VAWA 2005. This rule proposes the term “covered housing providers,” to reflect that, under VAWA 2013, implementation of VAWA protections and responsibilities are not limited to PHAs, owners, and managers of assisted housing.
The program-specific regulations for the HUD programs covered by VAWA identify the individual or entity that carries out the duties and responsibilities of the covered housing provider, as set forth in part 5, subpart L. For any of the covered housing programs, there may be more than one covered housing provider; that is, depending upon the VAWA duty or responsibility to be performed, the covered housing provider may not always be the same individual or entity. This is the case generally for the newly covered HUD programs, for the reasons discussed earlier in this preamble, and that is that they are not administered by a PHA as was the case under the HUD program covered by VAWA 2005. For example, in the Section 8 Housing Assistance Payment programs, for which regulations are found in 24 CFR parts 880, 883, 884, and 886, and for which administration involves both a PHA and an owner of the housing, it is the PHA, not the owner, that is responsible for distributing to applicants and tenants the “notice of occupancy rights under VAWA, and certification form” described at 24 CFR 5.2005(a). It is the owner (not the PHA) that may choose to bifurcate a lease as described at 24 CFR 5.2009(a), and as discussed below, but it is the PHA, not the owner, that is responsible for providing the “reasonable time to establish eligibility for assistance following bifurcation of a lease” described at 24 CFR 5.2009(b), which is also discussed below.

Domestic violence (Revised): HUD proposes to revise the definition of “domestic violence” to reflect the statutory inclusion of “intimate partner” and “crimes of violence” in the definition for this term. (See 42 U.S.C. 13925(a)(8).) Neither term is defined in title VI of VAWA of 2013. The term “intimate partner” is defined in section 40002(a) of VAWA 1994 (see 18 U.S.C. 2266), and addressed (but not revised) in section 3 of VAWA 2013. Section 3 of VAWA provides “universal definitions” for VAWA. (See 42 U.S.C. 13925(a).) Title 18 of the U.S. Code addresses Crimes and Criminal Procedure, and part I, chapter 110A of this title addresses domestic violence and stalking. Section 2266 of title 18 defines “intimate partner” to include a spouse, former spouse, a person who shares a child in common, and a person who cohabits or has cohabited as a spouse; or a person who is or has been in a romantic or intimate relationship, as determined by factors such as the length and type of relationship; or any other person similarly situated to a spouse who is protected by the domestic or family violence laws of the State or tribal jurisdiction. The term “crime of violence” is defined in 18 U.S.C. 16 to mean: “an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (b) any offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” HUD does not include the definitions for these terms but provides a cross-reference to their definitions in title 18 of the U.S. Code.

Immediate family member (Removed): As noted earlier, VAWA 2013 replaces the definition of “immediate family member” and substitutes “affiliated individual.” HUD therefore proposes to remove the definition of “immediate family member” from the definition section.

Sexual assault (New): While VAWA 2005 contained provisions to protect victims of sexual assault (see 42 U.S.C. 14043e-1), reference to victims of sexual assault was not included in the amendments to sections 6 and 8 of the 1937 Act, which established the VAWA protections for HUD’s public housing and Section 8 programs. (See 42 U.S.C. 1437d(3) and 1437f(9) prior to amendment by VAWA 2013.) VAWA 2013 extends VAWA protections to victims of sexual assault for all HUD-covered housing programs. The term “sexual assault” is statutorily defined as “any nonconsensual sexual act proscribed by Federal, tribal, or State law, including when the victim lacks capacity to consent.” (See 42 U.S.C. 13925(a).)

This rule would add the definition of “sexual assault” to the definitions in 24 CFR part 5, subpart L, and would also add reference to victims of sexual assault where other victims protected under VAWA are addressed (i.e., victims of domestic violence, dating violence, sexual assault, or stalking) to the regulations for the covered housing programs.

Stalking (Revised): VAWA 2013 removed the definition of “stalking” in title VI, but a definition of “stalking” remains in title I of VAWA. Title I defines “stalking” as “engaging in a course of conduct directed at a specific person that would cause a reasonable person to—(A) fear for his or her safety or the safety of others; or (B) suffer substantial emotional distress.” (See 42 U.S.C. 13925(a)(30)). HUD proposes to substitute this definition for the definition of “stalking” in § 5.2003.

VAWA (Revised): This rule would revise the definition of VAWA to solely cite to the applicable U.S. Code citations.
VAWA Protections (§ 5.2005)—Revised To Include New Protections
VAWA 2013 expands on the protections provided by VAWA 2005, and which are currently codified in HUD’s regulations at 24 CFR 5.2005. VAWA 2005 obligated each PHA, owner, and manager of assisted housing to provide notice to tenants of their rights under VAWA, including the right to confidentiality. In addition, VAWA 2005 obligated each PHA to provide notice to owners and managers of assisted housing of their rights and obligations under VAWA. These requirements are addressed in HUD’s existing regulations at 24 CFR 5.2005(a).

Notice of occupancy rights under VAWA and certification form (§ 5.2005(a)(1)(i)) and (ii): VAWA 2013 requires HUD, as opposed to the individual covered housing provider, to develop the notice of rights available under VAWA, which HUD refers to as the “Notice of Occupancy Rights under VAWA.” VAWA 2013 provides that each covered housing provider is to distribute the notice of occupancy rights developed by HUD, together with the certification form specified by VAWA 2013 (discussed below). The notice and certification form are to be distributed at such times as directed by VAWA.
VAWA 2013 states that the notice, to be developed by HUD, must also include the rights to confidentiality and the limits to such confidentiality. The confidentiality rights provided by VAWA and the limits on such rights, which are to be addressed in this notice, are also proposed to be codified in § 5.2007(c) of HUD’s regulations, as further discussed below. VAWA 2013 provides that any information submitted to a covered housing provider by an applicant or tenant (the individual), including the fact that the individual is a victim of domestic violence, dating violence, sexual assault, or stalking, shall be maintained in confidence by the covered housing provider and may not be entered into any shared database or disclosed to any other entity or any other individual, except to the extent that the disclosure is: (1) Requested or consented to by the individual in writing, (2) required for use in an eviction proceeding involving VAWA protections, or (3) otherwise required by applicable law. The “otherwise required by applicable law” includes any additional procedures that may be provided under the regulations of the applicable covered HUD programs, or as required by other Federal, State, or local law.
Unlike the emergency transfer plan, discussed below, which VAWA 2013 refers to as a “model plan,” the statute does not refer to the notice of occupancy rights as a “model” notice. HUD believes that the difference in referring to the emergency transfer plan as a model plan but not referring to the notice of occupancy rights as a model notice may pertain, with respect to the plan, to the ability and feasibility of a covered housing provider to transfer a victim of domestic violence, dating violence, sexual assault, or stalking to an available and safe unit, which may vary significantly given program differences. However, the basic protections of VAWA apply to all covered housing programs, notwithstanding program differences.

HUD, therefore, reads the statutory provision as requiring covered housing providers to issue the notice as developed by HUD, without substantive changes to the core protections and confidentiality rights in the notice, but that covered housing providers should customize the notice to reflect the specific assistance provided under the particular covered housing program, and to their program operations that may pertain to or affect the notice of occupancy rights. For example, covered housing providers should add to the notice information that identifies the covered program at issue (e.g., Housing Choice Voucher program), the name of the covered housing provider (e.g., the Housing Authority of Any Town), how much time a tenant would be given to relocate to new housing in the event the covered housing provider undertakes lease bifurcation and the tenant must move from the unit, and any additional information and terminology that is used in the program and makes the notice of occupancy rights more meaningful to the applicants and tenants that receive the notice (e.g., use of “apartment” or “housing” in lieu of “unit”).

Approved certification form (§ 5.2005(a)(1)(ii)): VAWA 2013 provides that an approvable certification form is one that: (1) States that an applicant or tenant is a victim of domestic violence, dating violence, sexual assault, or stalking; (2) states that the incident of domestic violence, dating violence, sexual assault, or stalking that is the ground for VAWA protection meets the requirements under VAWA; and (3) includes the name of the individual who committed the domestic violence, dating violence, sexual assault, or stalking, if the name is known and safe to provide. (See 42 U.S.C. 14043e-11(c)(3).)

Timing of distribution of notice of occupancy rights (§ 5.2005(a)(2)): VAWA 2013 directs the covered housing provider to provide the notice of occupancy rights and certification form to an applicant or tenant at the following times: (1) At the time the applicant is denied residency in a dwelling unit assisted under the covered housing program; (2) at the time the individual is admitted to a dwelling unit assisted under the covered housing program; and (3) at the time that any notification of eviction or notification of termination of rental assistance is issued. The proposed regulatory text includes these time periods but rewords the first two periods of time to read as follows: (1) At the time the applicant is denied assistance or admission under the covered housing program, and (2) at the time the individual is provided assistance or admission under the covered housing program.

Specific solicitation of comment 3: Given the many HUD programs that are being added to VAWA coverage by VAWA 2013, HUD is considering requiring that, at a minimum, the newly covered HUD programs distribute the notice of occupancy rights and certification form to all current tenants and not only to new tenants (i.e., at the time an individual is provided assistance or admission under the covered housing program). HUD specifically solicits comment on this proposal and whether there is a less burdensome way to reach out to all existing tenants in the newly covered HUD programs about their rights under VAWA.

Notice and certification form to be available in other languages (§ 5.2005(a)(3)): VAWA 2013 also requires the notice and certification form to be available in multiple languages, consistent with guidance issued by HUD, implementing title VI of the Civil Rights Act, which prohibits discrimination on the basis of race, color, and national origin. (42 U.S.C. 14043e-11(d)(2).) The HUD Guidance was required by Executive Order 13116 and implements HUD title VI and related regulations in 24 CFR 1.4. HUD’s Guidance requires recipients of Federal financial assistance to take reasonable steps to ensure meaningful access to programs and services by individuals with Limited English Proficiency (LEP) and to reduce barriers that can preclude meaningful access by LEP individuals. See HUD Final Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons (January 22, 2007), available at http://www.gpo.gov/fdsys/pkg/FR-2007-01-22/pdf/07-217.pdf. The guidance contains a four-part individualized assessment for recipients to use to determine the extent of their obligations, and an appendix with examples of how the four-part assessment might apply.

Prohibited basis for denial or termination of assistance or eviction (§ 5.2005(b)): As discussed above, VAWA 2013 provides, to the extent applicable, the same protections for applicants and tenants. This proposed rule would therefore combine the protections for applicants (currently found at § 5.2005(b)) and the protections for tenants (currently found at § 5.2005(c)) into one paragraph at § 5.2005(b). (See 42 U.S.C. 14043e-11(b)(1).) In proposed § 5.2005(b), paragraph (b)(1) would state the general prohibition pertaining to denial or termination of assistance or eviction.

The prohibition, generally (§ 5.2005(b)(1)). Paragraph (b)(1) of § 5.2005(b)(1) provides that, under a covered housing program, neither an applicant nor tenant assisted may be denied assistance or admission, have assistance terminated, or be evicted on the basis that the applicant or tenant is or has been a victim of domestic violence, dating violence, sexual assault, or stalking, if the applicant or tenant otherwise qualifies for admission, assistance, participation, or occupancy under a covered housing program.

Termination on the basis of criminal activity (§ 5.2005(b)(2)): In proposed § 5.2005(b), paragraph (b)(2) would address the VAWA prohibition on denying or terminating assistance or evicting a tenant solely on the basis of criminal activity directly related to domestic violence, dating violence, sexual assault, or stalking if the tenant or affiliated individual is the victim or threatened victim of such activity. VAWA 2005 prohibited denying or terminating assistance or evicting a tenant solely on the basis of criminal activity directly related to domestic violence, dating violence, or stalking if the tenant or immediate family member is the victim of such activity. VAWA 2013 expands the 2005 statutory prohibition to include reference to sexual assault and reference to affiliated individuals, and this rule would revise this protection to reflect the change in terminology.
A commenter on the August 6, 2013, notice asked for clarification of the meaning of the term “directly relating” in the context of criminal activity stating that it assumed that the use of the word “directly” was intended to limit the reach of the protection. The commenter is correct. The prohibition in VAWA on denying or terminating assistance on the basis of criminal activity, is not intended to cover all criminal activity, such as criminal activity related to the selling and distribution of narcotics, but rather solely to the criminal activity that specifically relates to domestic violence, dating violence, sexual assault, or stalking. HUD believes that, read in context of the full VAWA provision, the term is clear and no further elaboration is needed.

Construction of lease terms and terms of assistance (§ 5.2005(c)): Proposed new paragraph (c) of § 5.2005 would incorporate the direction of VAWA 2013 on how to construe certain lease terms and terms of rental assistance. VAWA 2013 provides that an incident of actual or threatened domestic violence, dating violence, sexual assault, or stalking shall not be construed as: (1) A serious or repeated violation of a lease executed under a covered housing program by the victim or threatened victim of such incident; or (2) good cause for terminating the assistance, tenancy, or occupancy rights under a covered housing program of a victim or threatened victim of such incident. (See 42 U.S.C. 14043e-11(b)(2).)
Although “actual or threatened” was removed by VAWA 2013 from almost all places that this term appeared in VAWA 2005, VAWA 2013 retains its use here with respect to direction on how to construe leases. The limited use of “actual or threatened” in VAWA 2013 may be because the VAWA protections that are applicable to individuals under the “threat” of domestic violence, dating violence, sexual assault, or stalking are limited to tenants; thus, necessitating the need to reference to “threatened” acts in determining lease violations. A tenant’s fear of “threatened” harm also arises in the context of a tenant’s request to be transferred to another unit. (See discussion of the emergency transfer plan later in this preamble.)

It is HUD’s position that consideration of “threatened” acts of domestic violence is an important component of reducing domestic violence, and the intent of VAWA is to reduce domestic violence. In support of this position, HUD notes that the term “crime of violence” is used in VAWA’s definition of “domestic violence.” “Crime of violence” is defined in 18 U.S.C. 16 to mean (a) an offense that has an element the use, attempted use, or threatened use of physical force against the person or property of another or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

Limitation of VAWA protections (§ 5.2005(d)): Paragraph (d) of § 5.2005 would continue to address the limitations of VAWA protections, but would be revised to reflect changes made by VAWA 2013. Those changes include the expansion of coverage of HUD programs beyond HUD’s public housing and Section 8 programs, and new terminology such as “affiliated individual.”
HUD proposes to incorporate in § 5.2005(d) the language currently found in paragraph (b) of § 5.2009 (Remedies available to victims of domestic violence, dating violence, sexual assault or stalking). Section 5.2009(b) addresses court orders and provides that nothing in VAWA may be construed to limit the authority of a covered housing provider to honor court orders and civil protection orders. HUD views this provision as a limitation on VAWA protections, since such orders may result in the disclosure of confidential information, and therefore has moved this language to § 5.2005(d)(1).
Although not required by VAWA, HUD retains paragraph (d)(3) of existing § 5.2005 (§ 5.2005(d)(4) in the proposed rule) that encourages a covered housing provider to evict or terminate assistance as provided in § 5.2005(d) only when there are no other actions that could be taken to reduce or eliminate the threat of domestic violence. This paragraph provides that any eviction or termination of assistance, as provided in the regulations, should be utilized by a covered housing provider only when there are no other actions that could be taken to reduce or eliminate the threat, including, but not limited to, transferring the victim to a different unit, barring the perpetrator from the property, contacting law enforcement to increase police presence or develop other plans to keep the property safe, or seeking other legal remedies to prevent the perpetrator from acting on a threat. This paragraph was added to HUD’s regulations in response to public comment in the prior rulemaking. Covered housing providers are strongly encouraged, although not mandated, to use eviction or termination as a last resort.

Removal of definition of “actual and imminent threat” in § 5.2005: As noted earlier in this preamble, HUD proposes to move the definition of “actual and imminent threat” to the definition section, § 5.2003.

Emergency transfer plan (§ 5.2005(e)): VAWA 2013 increases protection for victims of domestic violence, dating violence, sexual assault, and stalking by requiring HUD to develop and adopt a model emergency transfer plan for use by covered housing providers. HUD addresses the requirements for the emergency transfer plan in § 5.2005(e).
VAWA 2013 provides that the emergency transfer plan: (1) Must allow tenants who are victims of domestic violence, dating violence, sexual assault, or stalking to transfer to another available and safe dwelling unit assisted under a covered housing program if the tenant expressly requests the transfer; the tenant reasonably believes that the tenant is threatened with imminent harm from further violence if the tenant remains within the same dwelling unit assisted under a covered housing program; or in the case of a tenant who is a victim of sexual assault, the sexual assault occurred on the premises during the 90-day period preceding the tenant’s request for transfer; and (2) must incorporate reasonable confidentiality measures to ensure that the covered housing provider does not disclose the location of the dwelling unit of a tenant to a person that commits an act of domestic violence, dating violence, sexual assault, or stalking against the tenant. (See 42 U.S.C. 14043e-11(e).)
HUD emphasizes certain points about the statutory language.
First, the statutory language refers to “reasonable confidentiality measures” and HUD replaces “reasonable” with “strict” confidentiality measures. HUD cannot overstate the importance of guarding the identity of victims of domestic violence, dating violence, sexual assault, and stalking and believes “strict” better reflects the intent of VAWA, which is optimum protections for victims of domestic violence.
Second, the statutory documentation requirements of VAWA, which are specified below in the discussion of § 5.2007, are not statutorily required with respect to a tenant requesting an emergency transfer. Under a strict interpretation of section 41411(c)(1), (3)(A)(ii), and (3)(B)(ii) of VAWA, the statutory requirements regarding documentation only apply when a victim of domestic violence, dating violence, sexual assault, or stalking requests “protection under subsection (b)” of section 41411, which pertains only to lease bifurcation and the prohibited bases for denial or termination of assistance or eviction. Emergency transfers, in contrast, are covered in subsections (e) and (f) of section 41411 and the statute is silent regarding documentation requirements for requests for protection under those subsections. In addition, the statutory language refers to “tenants who are victims of domestic violence, dating violence, sexual assault, and stalking.” This phrasing possibly indicates that the tenant may have already been determined to be victim of domestic violence, dating violence, sexual assault, and stalking, and, therefore, no need for further documentation.
HUD has reasonable discretion over what documentation requirements, if any, to apply or allow when victims of domestic violence, dating violence, sexual assault, or stalking request an emergency transfer from their existing unit to another safe and available unit. However, as noted earlier, because the statutory language refers to “victims of domestic violence” there is also the implication that the individual may have already been determined, through documentation, to be a victim of domestic violence and, therefore, further documentation would not be required.
In § 5.2007, HUD provides that the documentation requirements specified in paragraph (a) of § 5.2007 do not apply to a request for an emergency transfer requested under § 5.2005(e), unless otherwise specified by HUD by notice, or by the covered housing provider in its emergency transfer plan. Inclusion in the emergency transfer plan of any documentation requirements related to emergency transfer provides earlier notification to tenants of documentation requirements that may be imposed by the covered housing provider.

Specific solicitation of comment 4: HUD believes that documentation requirements pertaining to the need for an emergency transfer are important for both the tenant and the covered housing provider. HUD invites comments on requiring documentation in the situation in which a tenant who is a victim of domestic violence, dating violence, sexual assault, or stalking requests an emergency transfer from the tenant’s existing unit to another safe and available unit, and what that documentation might include. HUD welcomes commenters’ views on whether documentation requirements should be imposed for tenants requesting emergency transfer, and, if so, whether less stringent documentation requirements should apply due to the emergency nature of the requests or more stringent documentation requirements should apply due to the increased costs and risks that transfers might present to housing owners, grantees, and PHAs. HUD also seeks comment on the possibility of requiring documentation after the emergency transfer has been achieved, which would then provide a record for the covered housing provider as to why such a move was necessary.
The statutory language refers to transfer to an “available and safe dwelling unit assisted under a covered housing program.” The tenant must expressly request the transfer and the tenant reasonably believe that the tenant is threatened with imminent harm from further violence if the tenant remains within the same dwelling unit, or in the case of a tenant who is a victim of sexual assault, the sexual assault occurred on the premises during the 90-day period preceding the request for transfer. The use of the terms “available and safe unit” reflect the limits of the covered housing provider’s responsibility to transfer a victim of domestic violence, dating violence, sexual assault, or stalking to another unit.
Under an emergency transfer, the covered housing provider relocates a tenant who is a victim of such actions from the unit in which the tenant is residing to another unit if the covered housing provider has a unit that is: (1) Not occupied and available to the tenant given possible considerations that may be applicable, such as eligibility requirements, waiting list, tenant preferences or prioritization, unit restrictions, or term limitations; and (2) safe (for example, an unoccupied unit immediately next door to the unit in which the victim is residing would, on its face, be safer than the unit in which the victim is currently residing, but the degree and extent of safety may be questionable if the perpetrator remains in the unit in which the victim was residing).
HUD reads “under a covered housing program” to mean the covered housing provider must, at a minimum, transfer the tenant to a unit under the provider’s control and assisted under the same covered program as the unit in which the tenant was residing, again, if a unit is available and is safe. An example of the meaning of control can be found in the Section 202 Supportive Housing for the Elderly program. Under this program, a covered housing provider would not be able to transfer a tenant to another Section 202 project that has a sponsor that is different from the sponsor of the project in which the tenant who is seeking to move is residing.
A covered housing provider, however, may transfer the tenant to a unit assisted under another covered program administered by the covered housing provider if a unit is available and safe, and if feasible given any possible differences in tenant eligibility. HUD provides in § 5.2005(e) that, with respect to emergency transfer of tenants, nothing in § 5.2005(e) is to be construed to supersede any eligibility, or other occupancy requirements, that may apply under a covered housing program.

Specific solicitation of comment 5: HUD also specifically solicits comment on available and safe dwelling units that a covered housing provider is required to consider in transferring a tenant, who expressly requests a transfer, as a result of an incident of domestic violence, dating violence, sexual assault, or stalking.

Specific solicitation of comment 6: HUD further solicits comment on whether it would be helpful to covered housing providers if HUD issues a model transfer request that includes the criteria for requesting the transfer; i.e., reasonable belief that the tenant is being threatened.
HUD notes that HUD’s Section 8 tenant-based rental program allows a family to move with continued assistance within a PHA’s jurisdiction or to another PHA’s jurisdiction (portability). The Section 8 tenant-based regulations at 24 CFR 982.314 provide that a family or member of a family may move with continued assistance if the move is needed to protect the health and safety of the family or family member as a result of domestic violence, dating, violence, sexual assault, or stalking, or any family member has been the victim of a sexual assault that occurred on the premises during the 90-day period preceding the family’s request to move. This regulation provides that a PHA may not terminate assistance if a family moves with or without prior notification to the PHA because the family or member of the family reasonably believed they were in imminent threat from further violence (however, any family member that has been the victim of a sexual assault that occurred on the premises during the 90-day period preceding the family’s move or request to move, is not required to believe that he or she was threatened with imminent harm from further violence if he or she remained in the dwelling unit).
HUD’s Continuum of Care (CoC) program regulations currently provide for transfer of tenant-based rental assistance for a family fleeing domestic violence, dating violence, sexual assault, or stalking. HUD’s regulation at 24 CFR 578.51(c)(3) covers program participants who have complied with all program requirements during their residence and who have been victims of domestic violence, dating violence, sexual assault, or stalking. Section 578.51(c)(3) provide that program participants must reasonably believe they are imminently threatened by harm from further domestic violence, dating violence, sexual assault, or stalking (which would include threats from a third party, such as a friend or family member of the perpetrator of the violence). If program participants remain in the assisted unit, § 578.51(c)(3) provides that they must be able to document the violence and the basis for their belief. If program participants receiving tenant-based rental assistance satisfy the requirements of 24 CFR 578.51(c)(3), then they may retain rental assistance and move to a different CoC geographic area if they choose to move out of the assisted unit to protect their health and safety.
HUD is aware that the transfers of tenants from one unit to another are not without costs, and HUD proposes that covered housing providers follow, to the extent possible, existing policies and procedures in place with respect to transfers, and make every effort to facilitate transfers as quickly as possible, and to minimize such costs or bear such costs, where possible, consistent with existing policies and practices. HUD’s CoC regulations, in addition to containing regulations that provide for a victim of domestic violence, dating violence, sexual assault, or stalking to retain his or her tenant-based rental assistance and move to a different CoC geographic area, include reasonable one-time moving costs as eligible supportive services cost. (See 24 CFR 578.53(e)(2).)

Specific solicitation of comment 7. For covered housing providers that have been involved in a transfer of tenants from one unit, regardless of the reason for the transfer, HUD specifically solicits comment on the costs of such transfer (including information on who bears the costs of the transfer) and the paperwork involved to achieve such transfer. For covered housing providers that have not been involved in transfers, HUD solicits comment on the anticipated costs of such transfer and anticipated paperwork involved.

VAWA documents: In addition to the proposed amendments discussed above, the appendices to the proposed rule present for public comment the documents that HUD is required to develop by VAWA: Appendix A to this proposed rule presents the notice of occupancy rights; Appendix B presents the model emergency transfer plan; and Appendix C presents the proposed certification form.

Documenting the Occurrence of Domestic Violence, Dating Violence, Sexual Assault, or Stalking (§ 5.2007)
This proposed rule would amend § 5.2007, which addresses documenting domestic violence, dating violence, or stalking and, now, following VAWA 2013, documenting sexual assault. The proposed rule would also revise the heading of this section to include reference to “sexual assault.” VAWA 2013 does not make significant changes to the documentation content and procedures required by VAWA 2005. The types of documents that an applicant or tenant are eligible to submit are largely the same as in HUD’s existing VAWA regulations, but there are some changes.

Request for documentation (§ 5.2007(a)): As is the case in the current regulations, if an applicant for assistance, or a tenant assisted under a covered housing program represents to the covered housing provider that the individual is entitled to the protections under § 5.2005, or to remedies under § 5.2009, the covered housing provider may request that the applicant or tenant submit to the covered housing provider the documentation required in § 5.2007. If the covered housing provider makes this request, the request must be in writing. As noted earlier in this preamble, the documentation requirements in § 5.2007(a) are not specified in this proposed rule as applicable to a request made by the tenant for an emergency transfer under § 5.2005(e), but HUD is considering requiring documentation for tenants requesting emergency transfer and has, earlier in this preamble, specifically solicited comment on this issue.

Timeline for submission of requested documentation (§ 5.2007(a)(2)(ii)): The time period for an applicant or tenant to submit documentation remains 14 business days following the date that the covered housing provider requests, in writing, such documentation. This is the same as in the existing regulations and, as in the existing regulation, the covered housing provider can extend the time period for the applicant or tenant to submit the necessary documentation.

Permissible documentation and submission requirements (§ 5.2007(b)): HUD proposes to reorganize existing § 5.2007 to consolidate the documentation requirements, including submission requirements, into paragraph (b). Under this proposed reorganization an applicant or tenant’s statement or other evidence is now included in paragraph (b), along with the other forms of documentation, instead of in a separate paragraph in § 5.2007, as is currently found in HUD’s existing regulations at § 5.2007(d). Paragraph (b), as proposed to be revised by this rule, would also address failure to provide the documentation (currently § 5.2007(c)) and conflicting evidence presented by the applicant or tenant (currently § 5.2007(e)). Paragraph (b) would also incorporate the statutory language, new to VAWA 2013, that provides that nothing in VAWA 2013 shall be construed to require a covered housing provider to request that an individual submit documentation of the status of the individual as a victim of domestic violence, dating violence, sexual assault, or stalking.

Certification form (§ 5.2007(b)(1)(i)): VAWA 2013 retains, as acceptable documentation, a certification form, approved by HUD. The certification form, as acceptable documentation, is addressed in HUD’s existing regulations at § 5.2007(b), and, under this proposed rule would be addressed in § 5.2005(a)(1)(ii).

As a result of VAWA 2005, HUD issued two approved certification forms. Form HUD-50066 is used for covered housing programs administered by HUD’s Office of Public and Indian Housing. Form HUD-91066 is used for covered housing programs administered by HUD’s Office of Multifamily Housing, Office of Housing. These forms are available at: http://portal.hud.gov/hudportal/HUD?src=/program_offices/administration/hudclips/forms/.

Through the Paperwork Reduction Act process, the HUD covered housing programs will combine these forms into one (to be used for all programs) and modify the language to reflect updated terminology. The proposed combined certification form is modified to abbreviate the space given to a victim to describe the incident of domestic violence. HUD was concerned that the length of space made available on the form signaled that a very detailed description was required, which is not the case. As noted earlier in this preamble, HUD’s proposed certification form is provided in Appendix C to this rule.

Specific solicitation of comment 8: HUD specifically solicits comment on the content of the proposed certification form. Specifically, HUD solicits comment from housing providers, as well as victims, survivors, and their advocates, who have experience with forms HUD-50066 and HUD-91066, about whether these forms have been useful and whether HUD should make any changes to the new proposed certification form provided in Appendix C.

Document signed by a professional (§ 5.2007(b)(1)(ii)): VAWA 2013 retains as an acceptable document, a document signed by an employee, agent, or volunteer of a victim service provider; an attorney; medical professional; or mental health professional (collectively “professionals” and “professional” individually) from whom the victim has sought assistance. In addition to the professionals listed in VAWA 2005, VAWA 2013 provides that the document may include the signature from a mental health professional. VAWA 2013 eliminates the requirement that the professional attest that the incident of abuse is “bona fide.” VAWA 2013 provides that the professional must attest, under penalty of perjury, the professional’s belief in the occurrence of the incident of domestic violence, dating violence, sexual assault, stalking, that is grounds for protection under VAWA, and that the incident meets the definition of the applicable abusive action as provided in § 5.2003.

Official government or court records (§ 5.2007(b)(1)(iii)): VAWA 2013 continues to provide, as acceptable documentation of domestic violence, dating violence, sexual assault, and stalking, a Federal, State, tribal, territorial, or local police or court record and adds to this a record provided by an administrative agency, such as a state child protective services agency. An administrative agency, under a dictionary for legal terminology, is a governmental body with the authority to implement and administer particular legislation. (See Black’s Law Dictionary, 8th Edition, 1999.)

Other documentation acceptable to the covered housing provider (§ 5.2007(b)(1)(iv)): In addition to the documentation specified by the statute, VAWA 2013 gives the housing provider the discretion to accept documentation other than that prescribed by statute. This provision is comparable to the provision in VAWA 2005 which allowed the covered housing provider to accept an individual’s verbal statements or other corroborating evidence.

Conflicting documentation (§ 5.2007(b)(2)): Paragraph (b)(2) specifies the actions that a covered housing provider may take if the covered housing provider is confronted with conflicting documentation about the incident of domestic violence, dating violence, sexual assault, or stalking. This paragraph provides, as does the existing regulation on conflicting documentation, that if the covered housing provider receives documentation under § 5.2007(b)(1) that contains conflicting information (including certification forms from two or more members of a household each claiming to be a victim and naming one or more of the other petitioning household members as the perpetrator), the covered housing provider may require an applicant or tenant to submit third-party documentation as provided in § 5.2007(b)(1)(ii) or (b)(iii). The statute specifies no time period in which the third-party documentation is to be submitted.

Specific solicitation of comment 9: HUD specifically solicits comment on whether the 14-business-day time period for submitting documentation requested by the covered housing provider under § 5.2007(a)(2)(ii) should also apply to a third-party document requested under (§ 5.2007(b)(2). VAWA establishes the 14-business-day minimum time period for the victim to submit the requested documentation to the covered housing provider, and this time frame seems reasonable as a starting base for submission of third-party documentation, but this specific solicitation of comment recognizes that more time may be needed by the victim to obtain third-party documentation.

Confidentiality requirements (§ 5.2007(c)): The confidentiality requirements are revised primarily to reflect terminology changes in the statute. However, with respect to entering any information pertaining to an individual being a victim of domestic violence, dating violence, sexual assault, or stalking (confidential information) into a shared database, VAWA 2013 changed the “shall not be entered” to a “may not be entered,” but retains the exceptions to such prohibition. HUD is retaining the “shall not” phrasing that is in HUD’s existing regulations. Given that VAWA 2013 continues to carve out exceptions to the prohibition on disclosure, and given that VAWA 2013 retains the “shall be maintained in confidence” clause, it is HUD’s view that the prohibition is firm, not discretionary, unless one of the exceptions is present.
The statute and HUD’s existing regulations provide that the VAWA-related information provided by a tenant shall be kept confidential unless required to be disclosed, among other permissible actions, for use in an eviction proceeding. HUD adds that disclosure is also permissible for use in a hearing regarding termination of assistance from the covered program. VAWA 2013 provides that the information provided by a tenant that is a victim of domestic violence, dating violence, sexual assault, or stalking must be kept confidential unless requested or consented by the individual in writing, required for use in an eviction proceeding, or otherwise required by law. A hearing to determine termination of assistance is required in some covered housing programs.
The remaining changes made to 24 CFR 5.2007 are those required to extend VAWA provisions to victims of sexual assault, and to expand the HUD programs subject to the regulations under VAWA 2013.
Remedies Available to Victims of Domestic Violence, Dating Violence, Sexual Assault, or Stalking (§ 5.2009)
As with the other sections in 24 CFR part 5, subpart L, this proposed rule would amend § 5.2009, which addresses remedies available for victims, to include victims of sexual assault and would revise the heading of this section to include the same.

Lease bifurcation: Existing § 5.2009(a) addresses the option (not a mandate) of a covered housing provider to bifurcate a lease to evict, remove, or terminate assistance to a perpetrator of a VAWA crime without evicting, removing, or terminating rental assistance to the remaining tenants. This option was provided in VAWA 2005. HUD’s existing regulations in § 5.2009 provide that notwithstanding any Federal, State, or local law to the contrary, a PHA, owner, or management agent (the housing providers covered under VAWA 2005) may bifurcate a lease. The existing regulations also emphasize that, consistent with VAWA 2005, any eviction, removal, or termination of occupancy rights or assistance must be carried out in accordance with the procedures prescribed by Federal, State or local law for termination of assistance.
VAWA 2013 does not reflect that bifurcation of a lease may occur “notwithstanding any Federal, State, or local law to the contrary” but does reiterate the language in VAWA 2005 that the option to bifurcate a lease is subject to other Federal, State, or local law that may address bifurcation of a lease. Accordingly, HUD would revise § 5.2009(a) to remove the “notwithstanding” clause.
By providing that bifurcation of lease is an option, not a mandate, VAWA 2005 and VAWA 2013 both recognize that this remedy may not be an option in all covered housing programs, given statutory requirements of the program.

Reasonable time to establish eligibility for assistance or find alternative housing following bifurcation of a lease (§ 5.2009(b)): VAWA 2013 adds another remedy for victims of domestic violence, dating violence sexual assault, and stalking, which will be added at § 5.2009(b)(1). The new remedy provides that if a covered housing provider exercises the option to bifurcate a lease and evicts, removes, or terminates assistance to the individual who was the perpetrator of domestic violence, dating violence, sexual assault, or stalking, and that individual was the tenant eligible for assistance under the covered housing program, the covered housing provider shall provide any remaining tenant the opportunity to establish eligibility for assistance under the covered housing program. If the remaining tenant cannot establish eligibility, the covered housing provider shall provide the tenant with a reasonable period of time, as determined by HUD, to find new housing or to establish eligibility for assistance under another covered housing program.
[14]

(See 42 U.S.C. 14043e-11(b)(3)(B).) VAWA provides that the purpose of this provision is to not penalize the tenant victim or other tenants, who are not the perpetrators and are not eligible for assistance, by leaving them without housing.

The complication that this provision presents is whether the authorizing statutes for the covered housing programs allow continued assistance to any individual if eligibility has not been established. Several commenters raised this concern in response to the August 6, 2013, notice, and asked if assistance would continue once the only eligible tenant was removed. The response varies given the statutory framework of each program.

For example, HUD’s HOPWA program already has in place in its regulations at 24 CFR part 574, a provision that allows, in limited instances, a surviving member or members of a household residing in a unit receiving assistance under the HOPWA program to remain in the unit. Section 574.310(e) of HUD’s HOPWA regulations provides that with respect to the surviving member or members of a family who were living in a unit assisted under the HOPWA program with the person with AIDS at the time of his or her death, housing assistance and supportive services under the HOPWA program shall continue for a grace period following the death of the person with AIDS. The grantee or project sponsor shall establish a reasonable grace period for continued participation by a surviving family member, but that period may not exceed 1 year from the death of the family member with AIDS. The grantee or project sponsor shall notify the family of the duration of their grace period and may assist the family with information on other available housing programs and with moving expenses. HUD proposes to amend this section to allow for the grace period to include victims of domestic violence, and to further establish that the minimum grace period can be no less than 90 days (the minimum time period HUD is proposing as discussed below) and the maximum period can be no more than 1 year as provided in the existing regulations.
HUD’s CoC program has a similar provision in its regulations at 24 CFR part 578 for permanent supportive housing projects. Section 578.75(i) of the CoC regulations provides that for permanent supportive housing projects, surviving members of any household who were living in a unit assisted under this part at the time of the qualifying member’s death, long-term incarceration, or long-term institutionalization, have the right to rental assistance under this section until the expiration of the lease in effect at the time of the qualifying member’s death, long-term incarceration, or long-term institutionalization. HUD would propose to amend this section to allow for the CoC grace period to extend to tenants (permanent supportive housing tenants) needing to establish eligibility after lease bifurcation.
As noted earlier, under VAWA 2013, reasonable time to establish eligibility for assistance is required if the covered housing provider opts to bifurcate the lease. Therefore, covered housing providers that exercise the bifurcation of lease option must be certain that, under the requirements of the covered housing program, they can provide the remaining tenant or tenants reasonable time to establish eligibility and allow the tenants to remain in the housing unit without assistance or to have the assistance continued for a reasonable period of time until eligibility is established. If the tenant cannot establish eligibility within a reasonable time, after the bifurcation of the lease the covered housing provider shall also provide the tenant reasonable time to find new housing or to establish eligibility for housing under another covered housing program.
HUD recognizes that, under some covered programs, the covered housing provider that bifurcates the lease (the owner of the assisted housing) may not be the covered housing provider (for example, the PHA) that determines family eligibility for assistance. This situation emphasizes the importance of the regulations for the specific covered housing program in determining how certain VAWA provisions are to be implemented.

Specific solicitation of comment 10: HUD specifically solicits comments on actions that covered housing providers may be able to take to help remaining tenants stay in housing or to continue to receive assistance consistent with requirements of the existing covered housing program. HUD also solicits comment on how a covered housing provider may establish an interim rent obligation on the remaining tenant during the time afforded to establish eligibility. It could be the case that HUD would not cover the assistance and an individual would have to pay a full rental amount. In such case, how would such a rental amount be determined and would rent be based on, for example, the subsidy HUD provides to the PHA for the unit.

Specific solicitation of comment 11: In addition to seeking comment, generally, on actions a covered housing provider may take to keep tenants in housing, HUD seeks comment on its Emergency Solutions Grants and CoC programs. HUD specifically requests comment on what lease requirements should apply when tenant-based rental assistance is used for homelessness prevention under the Emergency Solutions Grants and CoC programs, and the family wishes to stay in its existing housing.

Reasonable period of time to establish eligibility: VAWA 2013 leaves it to the applicable Federal agency, in this case HUD, to establish a reasonable time for any remaining tenants, following bifurcation of a lease, to establish eligibility. If the tenant cannot establish eligibility after the bifurcation of the lease, the covered housing provider shall provide the tenant reasonable time to find new housing or to establish eligibility for housing under another covered housing program. HUD would establish this reasonable period in § 5.2009(b)(2).
Commenters on the August 6, 2013, notice offered several time periods as being a reasonable time period to establish eligibility. The majority of the commenters submitted a time period of no less than 60 days and a maximum of 90 days. A few commenters submitted that the time period should be 120 days, and a few others suggested a 180-day period. Some commenters suggested that HUD allow the housing provider to determine the reasonable period of time to establish eligibility, but the majority of commenters did not favor that approach.
HUD agrees with those commenters recommending that 90 days would be a reasonable period for the remaining tenant or tenants to establish eligibility. For HUD covered housing programs, such as HUD’s HOPWA program and CoC program, which already provide an “eligibility grace period,” HUD does not propose to alter those periods, but rather would amend those regulations to extend those grace periods to victims of domestic violence. HUD proposes to establish the 90-day period for the HUD covered housing programs that do not currently have an eligibility grace period.
In determining what may constitute a reasonable period to establish eligibility, HUD looked at its regulations in 24 CFR part 5, subpart B (Disclosure and Verification of Social Security Numbers and Employer Identification Numbers; Procedures for Obtaining Income Information) as a possible model to determine a reasonable period to provide to a tenant to establish eligibility under a covered housing program. A period of 90 calendar days is used in HUD’s regulation at 24 CFR 5.216 (Disclosure and verification of Social Security and Employer Identification Numbers) to allow for a household to obtain a Social Security number for a new household member that is under the age of six. (See 24 CFR 5.216(e)(ii).) A period of 90 calendar days is also used as the period to allow an applicant to produce a Social Security number to maintain eligibility to for participation in the Section 8 Moderate Rehabilitation Single Room Occupancy (SRO) program for Homeless Individuals under 24 CFR part 882, subpart H. (See 24 CFR 5.216(h)(2).) HUD viewed these “disclosure” regulations as providing support that a minimum 90-day period presents a reasonable period to establish eligibility under a HUD covered housing program.

HUD notes that VAWA 2013 directs that the covered housing provider “shall provide” the remaining tenant (or tenants) with reasonable time to find new housing or to establish eligibility for the housing in which the tenant currently resides. HUD therefore proposes a minimum 90-day period that would be divided into two time periods: One time period would be to establish eligibility to remain in the unit in which the tenant is now residing, and a second time period would be to allow the tenant to locate alternative housing if the tenant is unable to establish eligibility for the unit in which the tenant is now residing.
For the first period, 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. For the second reasonable period, the rule provides for 30 calendar days, commencing from the 61st date from the date of bifurcation of the lease for the tenant to find alternative housing.
Of course, during first (60 days) period and the second (30 days) period, the tenant may undertake efforts to both establish eligibility to remain in the unit in which the tenant is residing and 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. A covered housing provider is strongly encouraged to assist a tenant in efforts to establish eligibility for the covered housing in which the tenant is participating, and then assist in finding alternative housing if it no longer seems possible that the tenant will be able to establish eligibility for the covered housing program.
For each of these time periods, the proposed rule would allow, but not mandate, covered providers to grant an extension for up to 30 days, subject, however, to the program regulations under the applicable covered housing program authorizing the covered housing provider to grant an extension, as part of the covered housing providers standard policies and practices or, alternatively, granting such an extension on a case-by-case basis. For some covered housing programs—for example, HUD’s public housing and Section 8 voucher programs where demand for available housing and assistance is high—a period of more than 90 days may adversely affect applicants waiting for admission to public housing or receipt of a voucher, and, therefore, for these programs, the proposed is for a maximum period of 90 days, without an extension.
It is important to note that the reasonable time period may only be provided to tenants by covered housing providers that remain subject to the requirements of the other covered housing program once the eligible tenant departs the unit. Therefore the reasonable time period does not apply, generally, if the only assistance provided is tenant-based rental assistance. For such assistance, the assistance is tied to the tenant not the unit. However, where the assistance is tied to the unit, such as project-based assistance, operating assistance, or construction or rehabilitation assistance, the covered housing provider may provide the reasonable period of time to establish eligibility.
In addition, it is the tenant’s responsibility to establish eligibility for assistance under the covered housing program or find alternative housing. While the covered housing provider may assist the tenant in the individual’s efforts to establish eligibility for assistance under a covered housing program, or find alternative housing, and is encouraged to do so, the responsibility remains with the tenant to establish eligibility for assistance or find alternative housing.

Specific solicitation of comment 12: HUD specifically solicits comment on the “reasonable” time periods proposed in this rule. HUD recognizes that all of its covered rental programs have waiting lists for individuals and families already determined to be eligible who are waiting on an available unit to occupy. On the other hand, HUD wants to ensure that, consistent with the statute, covered housing providers allow sufficient time for individuals and families already occupying the unit to remain in the unit if possible, and not further contribute to populations lacking housing stability.
In this regard, HUD has added a new paragraph (c) to § 5.2009, which encourages covered housing providers to undertake whatever actions permissible and feasible under their respective programs to assist individuals residing in their units who are victims of domestic violence, dating violence, sexual assault, or stalking to remain in their units or other units under the covered housing program or other covered housing providers, and for the covered housing provider to bear the costs of any transfer, where permissible.

Court orders: Section 5.2009(b) of HUD’s existing VAWA regulations, which pertain to court orders, is proposed to be moved, as discussed earlier in this preamble, to § 5.2005(d)(1).
Effect on Other Laws (§ 5.2011)
With the exception of including “sexual assault,” this section would remain unchanged.
B. Proposed Conforming Amendments to 24 CFR parts 92, 93, 200, 574, 576, 578, 880, 882, 883, 884, 886, 891, 960, 966, 982, and 983
For the programs already covered by VAWA, additional proposed amendments are primarily directed to include reference to sexual assault, which was added by VAWA 2013.
For the new HUD programs covered by VAWA 2013, the proposed rule would amend the regulations of the HUD-covered housing programs to cross-reference the applicability of the VAWA regulations in 24 CFR part 5, subpart L. However for certain of the newly covered programs, such as the HOME program, the HOPWA program, the Emergency Solutions Grants program, and the CoC program, regulations beyond reference to the core VAWA requirements provided in part 5, subpart L, are necessary to guide how the VAWA requirements are to be implemented in accordance with the unique program requirements of these four programs, the first three of which are formula funded programs.
[15]

As noted earlier in this preamble, HUD also proposes to amend the HOPWA regulations at 24 CFR 578.75(i) to include a reasonable time for the remaining members of the household to continue occupancy in the housing after the qualifying member was evicted for having engaged in domestic violence, dating violence, sexual assault, or stalking.
For the multifamily housing programs administered by HUD’s Office of Housing, the proposed conforming amendment is made to 24 CFR part 200, subpart A, under the undesignated heading of Miscellaneous Cross-Cutting Regulations. To this group of important cross-cutting regulations, HUD would add the requirement to comply with the VAWA protections.

While this rule proposes to make the necessary regulatory amendments to fully implement VAWA 2013 in all HUD-covered housing programs, the HUD offices administering assistance under the covered programs will develop guidance for their covered housing providers to further assist covered housing providers in their implementation of VAWA and elaborate on such nonregulatory requirements, such as encouraging the providers to aid remaining tenants in their efforts to establish eligibility for assistance and how such aid may be provided. The guidance will be in such forms that HUD program offices generally issue guidance to supplement and support statutory or regulatory program requirements, such as Office of Housing or PIH notices, Federal Housing Administration (FHA) mortgagee letters, etc. HUD recognizes that for HUD and the covered housing providers to more effectively assist victims of domestic violence, dating violence, sexual assault, or stalking, assistance may be needed from service providers, charitable organizations, and others in the community in which the housing is located, and HUD and covered housing providers will reach out to such organizations.


Link to this story: 

Please share with your friends:

Leave a Reply

Sponsored by

Brian Recommends

Sponsored by