HUD Moves to Implement New VAWA Requirements

HUD recently requested public comment on plans to implement the key changes made by the VAWA Reauthorization Act of 2022 (VAWA 2022) to the Violence Against Women Act of 1994. VAWA 2022 was passed in March 2022, and it became effective on Oct. 1, 2022. The Violence Against Women Act provides housing protections for survivors of domestic violence, dating violence, sexual assault, and/or stalking. Despite the name of the law, VAWA’s protections apply regardless of sex, sexual orientation, or gender identity.

HUD’s recent notice covers each applicable VAWA 2022 section and its plans for implementation. We’ll discuss HUD’s plans and the two specific areas in which HUD is seeking comments from assisted housing providers.

Changes to VAWA Definitions

The 2022 revision amends the definition of “domestic violence” to include “any felony or misdemeanor crimes committed under the family or domestic violence laws of the jurisdiction receiving grant funding.”

This definition includes “in the case of victim services, the use or attempted use of physical abuse or sexual abuse, or a pattern of any other coercive behavior committed, enabled, or solicited to gain or maintain power and control over a victim, including verbal, psychological, economic, or technological abuse that may or may not constitute criminal behavior” by certain individuals including current or former spouses, current or former co-inhabitants, people sharing a child, or people who commit acts against people protected from acts by family or domestic violence laws of a jurisdiction.

The definitional change went into effect on Oct. 1, 2022. While the change is only for grants authorized under VAWA, HUD notes that its current definition of domestic violence covers all the additional conduct specified in the VAWA 2022 definition, and HUD interprets the existing regulatory definitions of “domestic violence” and “stalking” to encompass all of the revised conduct. Therefore, HUD is advising owners to apply HUD’s VAWA requirements in a manner that encompasses the VAWA 2022 “domestic violence” definition.

HUD says that it will consider implementing changes to update HUD’s definition for domestic violence to include the related definitions of “economic abuse” and “technological abuse” through upcoming rulemaking processes. As such, in addition to “generally” seeking comments from owners on VAWA 2022, HUD is specifically seeking comments on common forms of economic and technological abuse owners may have witnessed that affect survivors’ rental assistance and continued tenancy and how HUD policies or services could help prevent or mitigate such violence.

Additional Covered Housing Programs

VAWA 2022 broadly expanded the scope of covered housing programs to include the Section 202 Direct Loan Program, the Housing Trust Fund, and any other federal housing programs. The “any other federal housing program” is a catch-all provision.

For the Housing Trust Fund, HUD already considers it a covered program through its regulatory authority. HUD says it will issue new regulations and notices to cover all the additional programs.

Compliance Reviews

VAWA 2022 requires federal agencies to establish a process to review compliance with VAWA. HUD currently doesn’t have regulations addressing VAWA compliance reviews specifically, although all HUD programs have general performance and compliance reviews under program-specific regulations. Under VAWA 2022, federal agencies are required to incorporate these review processes into their existing compliance reviews where possible. Six items are to be examined:

• Compliance with requirements prohibiting the denial of assistance, tenancy, or occupancy rights on the basis of domestic violence, dating violence, sexual assault, or stalking;
• Compliance with confidentiality provisions;
• Compliance with notification requirements;
• Compliance with the provisions for accepting VAWA documentation;
• Compliance with emergency transfer requirements; and
• Compliance with the prohibition on retaliation.

Compliance review procedures must be established by regulation by March 15, 2024. Additionally, there will be requirements on reporting of emergency transfers, and HUD will have to establish standards for corrective action plans where compliance standards haven’t been met.

Prohibiting Retaliation Against Victims

VAWA 2022 addresses protections against retaliation for survivors and other persons involved. PHAs and owners or managers must not discriminate against any person who has opposed any act made unlawful by VAWA or because the person testified, assisted, or participated in any related matter. In addition, those entities may not “coerce, intimidate, threaten, interfere with, or retaliate against any person who exercises or assists or encourages a person to exercise any rights or protections” under VAWA.

These changes took effect on Oct. 1, 2022. HUD says rulemaking isn’t necessary for HUD’s Office of Fair Housing and Equal Opportunity and its existing Fair Housing Act complaint process to enforce this requirement. But HUD left the door open and says it may conduct rulemaking to implement this provision.

Right to Report Crime and Emergencies

VAWA 2022 protects the right to report crime and emergencies from a person’s home. The new revision allows for “landlords, homeowners, tenants, residents, occupants, and guests of, and applicants for, housing” to have the right to seek law enforcement or emergency assistance for themselves or another person in need. Actual or threatened penalties to protected persons for their assistance requests are prohibited.

This provision seeks to address nuisance ordinances. Nuisance ordinances are local laws that often impose fines or other penalties on owners for activities occurring at their properties considered to be “nuisance” activity. While such laws exist to enforce local rules such as property upkeep and controlling noise, these ordinances can also designate other conduct as “nuisance” activity, such as making a certain number of calls for police or emergency assistance within a particular time frame. Nuisance ordinances could discourage survivors from calling for police or emergency assistance out of fear of eviction or penalty.

As a result of VAWA 2022, municipal, county, or state governments that receive community development block grants from HUD must report on their laws or policies that impose penalties on protected persons for law enforcement or emergency assistance based on criminal activity at a property. The governmental entities must certify compliance with these provisions within 180 days of providing their report. These changes took effect on Oct. 1, 2022. HUD will issue implementing regulations and guidance, although in 2016 HUD already issued guidance on apply the Fair Housing Act to local nuisance law. The current fair housing complaint process will be used for enforcement of these provisions.

Gender-Based Violence Prevention Office and VAWA Director

VAWA 2022 directed HUD to establish a specific office and position with HUD for VAWA-related matters. The director will support implementation of VAWA’s housing provisions; coordinate with other federal agencies and with state and local governments; ensure the provision of technical assistance and support for agencies and housing providers; implement internal systems to track, monitor, and address compliance failures; and address the housing needs and barriers faced by persons who have been victims of sexual assault, sexual coercion, or sexual harassment by a public housing agency, owner, or manager of assisted housing.

HUD says there is no regulatory action needed for this requirement to be implemented. It has begun the process since Congress authorized the funding for this office and position for fiscal years 2023 to 2027.

VAWA Training and Technical Assistance

VAWA 2022 added a provision authorizing appropriations in ‘‘such sums as may be necessary for fiscal years 2023 through 2027’’ for training and technical assistance to support VAWA implementation, including technical assistance agreements with entities whose primary purpose and expertise is assisting survivors of sexual assault and domestic violence or providing culturally specific services to victims of domestic violence, dating violence, sexual assault, and stalking. HUD says it will be providing technical assistance on the implementation of these new VAWA revisions.

For now, HUD is seeking information on entities’ needs for training and technical assistance to support the implementation of VAWA. Along with seeking comments generally on its implementation of VAWA, remember that HUD is also seeking comments on the common forms of economic and technological abuse owners may have witnessed. Comments are due by March 6, 2023. You can submit comments electronically through the Federal eRulemaking Portal at www.regulations.gov.

Federal VAWA Housing Protections

The Violence Against Women Act (VAWA) protects federally subsidized tenants from being denied housing or from being evicted because they are the victim of domestic violence, dating violence, sexual assault, or stalking. VAWA aims to encourage survivors who are receiving housing subsidies to report and seek help for the abuse committed against them, without fear of being evicted. VAWA’s protections include, for example:

Nondiscrimination. It’s illegal to deny admission to or assistance under, or to evict a resident from or terminate participation in, a covered housing program if a resident or a member of the household is or has been a survivor of VAWA violence or abuse. In addition, it’s illegal to deny tenancy or occupancy rights in a covered housing program solely on the basis of criminal activity directly relating to the VAWA violence/abuse.

Notification of Occupancy Rights. For an applicant or resident, a covered housing provider must provide two HUD-approved documents: (1) Notice of Occupancy Rights under VAWA; and (2) VAWA certification form at specified times.

Emergency Transfers. Residents can request an emergency transfer if: (1) the resident expressly requests the transfer; and (2)(a) the resident reasonably believes there is a threat of imminent harm from further violence if the resident remains in the same unit; or (2)(b) in the case of sexual assault, the sexual assault occurred at your housing during the 90 calendar-day period preceding the date of the transfer request. 

Confidentiality Requirements. Owners have specific obligations to maintain the confidentiality of the fact that a person is a survivor of domestic violence, dating violence, sexual assault, or stalking. Any information a resident provides under VAWA’s housing protections, including the fact that a resident is a VAWA survivor, must be kept confidential. These obligations include keeping any such information out of a shared database and not disclosing such information to others unless the resident consents in writing to such disclosure, it is required for use in an eviction proceeding, or the law otherwise requires it. 

Documentation. If a resident informs a public housing agency or owner or manager that the resident is a survivor of VAWA violence/abuse entitled to VAWA protections, the covered housing provider may request, in writing, that the resident submit documentation of the occurrence of the domestic violence, dating violence, sexual assault, or stalking. The resident has the discretion to choose which documentation to provide from the list identified in HUD’s VAWA rule, unless there’s conflicting information of VAWA violence/abuse.

Lease Bifurcation. VAWA protects the resident and other household members when a covered housing provider removes a household member from a lease in order to evict, remove, terminate occupancy rights, or terminate assistance to that person because he or she engages in criminal activity directly relating to VAWA violence/abuse. This is known as “bifurcating” a lease.

The housing provider may choose whether to bifurcate the lease, and if it’s done, it must be done consistent with applicable federal, state, or local laws and the requirements of your covered housing program. In the event of a lease bifurcation, if the household member who was removed was the resident who made your household eligible for assistance under your covered housing program, the housing provider must give those who remain a reasonable time to establish eligibility under the same program, under a different program, or to find other housing. While this is generally 90 days, it may be a different amount of time, depending on which covered housing program the resident is participating in.

Prohibition on Retaliation. It’s illegal for a PHA or owner to retaliate against a victim because the resident opposed any action it took or practice it has that’s prohibited by VAWA. The housing provider also may not subject a resident to retaliation, coercion, intimidation, or threats because he or she testified, assisted, or participated in an action to enforce VAWA rights, including encouraging another or exercising his or her own rights under VAWA.

Right to Report Crime and Emergencies from One’s Home. Residents, occupants, guests of, or applicants for any housing have the right to seek law enforcement or emergency assistance on their own behalf or on behalf of another person in need of assistance. They may not be penalized based on their requests for assistance, based on criminal activity for which they are a victim, or based on activity for which they are otherwise not at fault under a law, ordinance, regulation, or policy adopted by or enforced by a governmental entity that receives certain HUD funding.