Housing Provisions of VAWA and SB 919 North Penn Legal Services Fair Housing Summit 2019 McKenzie Clark Esq., Legal Services Manager Danni Petyo, Esq., CLR Attorney

Objectives At the end of this training, you will be able to: Understand VAWA, and it’s housing provisions. Understand SB 919 and its similarities to VAWA. Advocate and Collaborate with PHAs on behalf of survivors. Advocating with PHAs and LLs - learn how to use the provisions of VAWA and SB 919 in hearing for your clients. VAWA creates a lot of opportunity to engage in systems advocacy on behalf of survivors with housing and PHAs.

VAWA and Housing Provisions

The Violence Against Women Act of 1994 Funding for Domestic Violence Protection from Abuse Immigration Housing VAWA was originally passed in 1994 and it represented a historic national commitment to addressing domestic and sexual violence, through prevention, intervention, and response protections and programs. It was then reauthorized in 2000, 2005, 2013, and most recently in 2018! The 2005 Reauthorization (VAWA 2005) including important housing protections VAWA 2005 recognized the link between domestic violence and homelessness and the unique needs of families experiencing domestic violence (42 USC § 14043(e)) Women and families across the country are being discriminated against, denied access to, and even evicted from public and subsidized housing because of their status as victims of domestic violence. (42 USC § 14043(e)(3)). Victims often return to abusive partners because they cannot find long-term housing. (42 USC §14043e(7)). Protecting the safety of victims, creating long-term housing solutions, building collaborations among victim service providers and housing providers and enabling housing providers to respond appropriately to domestic violence, dating violence, sexual assault, and stalking while maintaining a safe environment for all housing residents. 42 USC §14043e-1(1)-(4). VAWA is intended to encourage survivors who are receiving housing subsidies to report and seek help for the abuse committed against them, without being afraid of being evicted. Applies to all survivors regardless of age, sex, gender identity, or sexual orientation.

Why are we talking about this now?! 2013 Reauthorization Final Rule November 2016 HUD Guidance May 19, 2017 Senate Bill 919 passed in 2018 The 2013 VAWA Reauthorization further expanded housing protections. Key changes include covering more federal housing programs, covering survivors of sexual assault and LGBTQ+ survivors, providing emergency transfer policies; providing survivors time to establish program eligibility after an abuser has been removed from a lease; and notification of VAWA housing rights to applicants and tenants upon admission, upon denial of admission/assistance, and upon termination/eviction. Final rule was issued and published in the federal register in November 2016, and in May 2017 HUD issued guidance on the final rule changes. Senate Bill 919 is a PA law with similar housing protections for victims of sexual assault and domestic violence, and this was passed at the end of 2018.

What types of housing does VAWA 2013 cover? HUD Programs Rural Development Low-Income Housing Tax Credit Program (LIHTC) The full list of housing programs covered by VAWA: U.S. Department of Housing and Urban Development -public housing -Section 8 Housing Choice Voucher Program -project-based Section 8 housing Section 202 supportive housing for the elderly Section 811 supportive housing for persons with disabilities Section 236 multifamily rental housing Section 221(d)(3) Below Market Interest Rate housing (BMIR) HOME Housing Opportunities for Persons with AIDS (HOPWA) McKinney-Vento Act Programs US Department of Agriculture – Rural development (RD)multifamily housing programs US Department of the Treasury LIHTC How do you know if you or your client is in subsidized housing? Do they pay income based rent? This comes with a requirement to report change in income, and rent can fluctuate. You can also look to the lease agreement, HUD or PHFA. A PHA is involved. HUD and LIHTC contract administrators are almost always in the PHFA in HBG. For rural development it’s the USDA, which is also in HBG and has 9 field offices.

Coverage – VAWA 2013: 24 CFR 5.2003 Domestic Violence Dating Violence Stalking Sexual Assault Domestic Violence (VAWA 2013) includes felony or misdemeanor crimes of violence committed by: A current or former spouse or intimate partner (includes a person who is or has been in a social relationship of a romantic or intimate nature with the victim, as determined by a.) the length of relationship, b.) the type of relationship, and c.) the frequency of interaction between the persons involved in the relationship) of the victim. By a person with whom the victim shares a child in common., By a person cohabitating with or has cohabitated with the victim as a spouse or intimate partner, By a person similarly situated to a spouse of the victim under the domestic or family violence laws of the jurisdiction receiving grant monies, or By any other person against an adult or youth victim who is protected from that person’s acts under the domestic or family violence laws of the jurisdiction. Dating violence: violence committed by a person: Who is or has been in a social relationship of a romantic or intimate nature with the victim, and Where the existence of such a relationship shall be determined based on a consideration of the following factors: The length of the relationship The type of the relationship The frequency of interaction between the persons involved in the relationship. Stalking: engaging in a course of conduct directed at a specific person that would cause a reasonable person to: 1.) fear for the person’s individual safety or the safety or others; or 2.) Suffer substantial emotional distress. Sexual Assault: Means any nonconsensual sexual act proscribed by Federal, Tribal, or State Law including when the victim lacks capacity to consent.

Victim and “affiliated individual” (immediate family or household member) Documentation of victim status HUD-5382, 24 CFR 5.2007, and SB 919 Affiliated individual, with respect to an individual, means: A spouse, parent, brother, sister, or child of that individual, or a person to whom that individual stand in the place of a parent or guardian (for example, the affiliated individual is a person in the care, custody, or control of that individual); or Any individual, tenant, or lawful occupant living in the household of that individual. SB 919 defines affiliated individual as defined by 34 U.S.C. §12491(a)(1) (relating to housing protection for victims of domestic violence, dating violence, sexual assault, and stalking.) Documentation under VAWA 2013: A verbal statement by the victim to the PHA can be enough. However they can choose to request an individual document their claim, this request MUST be in writing. Providing the certification form (HUD-5382) to the victim does not constitute the written request for documentation. Victim can self-certify A record of a federal, state, tribal, territorial or local law enforcement agency, court, or administrative agency. Third party certification by an employee, agent, volunteer of a victim service provider, an attorney or medical professional or a mental health professional from whom the victim has sought assistance relating to DV, dating violence, SA, stalking or the effects of abuse. SB 919 documentation: no ability for PHA to accept a verbal statement proof of domestic and sexual violence can be established by: Current PFA or SVPO/I on behalf of tenant or affiliated individual. Police reports, medical records, or court documents relating to tenant or AI’s victimization as a result of DV or SA. A certification of abuse from the tenant that includes the information required by the statute. Any other evidence of the conviction or other adjudication of guilt for DV/SA committed against the tenant or AI. Conflicting evidence procedure (VAWA 2013): The PHA has to accept the documentation the tenant or AI provides pursuant to their request. They can only ask for more documentation if they received or already possess conflicting information. SB 919 – 3rd party, PHA can request a written verification signed by an attesting third party if a PHA received conflicting information regarding DV or SA. Requirements for the written verification are in SB 919. Timelines (VAWA 2013): within 14 business days after the date that the individual received their written request for documentation. This can be extended. 3party info conflicts: have 30 calendar days from the date of the request to provide such documentation. However, if an applicant does not submit any 3p documentation within the required time period or submits documentation that does not meet the criteria, the PHA MAY accept the applicants assertion of victim status for the purpose of VAWA protections. Timeline SB 919:Request review and determination must take place within 5 business days of a receipt of a completed request.

Exclusion PRIVATE HOUSING Sorry but no VAWA coverage for private housing.

Central Provision 1: Discrimination Prohibited Applicant may not be denied admission, and tenant an affiliated individuals may not be evicted or have subsidy terminated on the basis of as a direct result of survivor status. 24 CFR 5.2005(b)(1) Exception: Actual and Imminent Threat The VAWA final rule prohibits denial of admission or assistance, termination from participation, or eviction on the basis or as a direct result of the fact that the applicant or tenant is or has been a victim of domestic violence, dating violence, sexual assault, or stalking. The only exception is if the PHA can demonstrate an actual and imminent threat to other tenants or those employed at or providing services to the property would be present if that tenant or lawful occupant is not evicted or terminated from assistance. Actual or imminent threat refers to a physical danger that is real, would occur within an immediate time frame, and could result in death or serious bodily harm. Factors: Duration of the risk The nature and severity of the potential harm; The likelihood that the potential harm will occur; and The length of time before the potential harm would occur. HUD guidance provides some suggestions of actions to take to reduce the actual or imminent threat without evicting the resident or terminating services.

Adverse Factors On the surface adverse factors may appear unrelated to domestic violence, dating violence, sexual assault, or stalking however, the HUD final rule provides specific examples of examples of how adverse factors are related to domestic violence Poor credit history: Forcing a victim to obtain credit, including credit cards for the perpetrator’s use. Running up debt on joint accounts. Preventing a victim from obtaining or maintaining employment. Sabotaging work or employment opportunities by stalking or harassing a victim at the workplace, or causing. Victim to lose their job by physically battering the victim prior to important meetings or interviews. 2. Poor rental history: Property damage Noise complaints Harassment Early lease termination and/or short term leases. 3. Criminal history Forcing a victim to write bad checks, misuse credit, or file fraudulent tax returns; Theft Disorderly conduct; Crimes related to sex work; ”Failure to protect” a child from a batterer’s violence and/or abuse/ Crimes committed by a victim to defend themselves or in defense of third parties from domestic violence, dating violence, sexual assault or stalking. 4. Failure to pay rent: The victim’s injury or temporary incapacitation The arrest of the only wage earning member of the household Placing utilities or other bils in the victim’s name and refusing to pay.

Central Provision 2: Emergency Transfers Right to internal transfer to another unit that is safe and available. PHA must make policy for assistance when one is not available (Emergency Transfer Plan). This plan must also address assistance for tenant desiring external transfer, which is not assured. Victim Status Request Reasonable Belief of Imminent Harm Sexual Assault within 90 Days of Request HUD provides templates of Emergency Transfer Plans to assist PHAs in drafting and implementing their own. Documentation: PHA can request additional documentation in writing, but there is not documentation required for this beyond what is required to make the tenant certification request. Safe unit is determined subjectively by the survivor 24 CFR 5.2005(e)(1)(iii) Request for emergency transfer can be a verbal one, but PHAs can adopt a policy for requests to be submitted in writing. Sample written request: HUD-5383 FYI on Public Housing: PHAs have discretion to establish policies for treating transfer requests, and what transfers will be determined as mandatory. VAWA requires that new policies be established for transfers under VAWA. Common PHA terminology for transfers includes: Mandatory transfers Tenant requested transfers Emergency transfers. An example process for emergency transfers is outlined in Section 12.6 pp 27-28

Other Key Provisions Family break-up of Section 8 HCV tenancy & portability. Lease Bifurcation. 24 CFR 5.2009(a). Notice of rights under VAWA, HUD-5380 provides template. Confidentiality 24 CFR 5.2007(c), Notice PIH-2017-08 Sec. 11, and SB 919. PHA policies on restricting timing and number of moves do not apply when the family or a member of the family is or has been the victim of domestic violence, stalking, dating violence, or sexual assault and the move is needed to protect the health or safety of the family or family member. In addition assistance is not terminated to a family who moves out in violation of a lease if the move was occasioned by safety needs protected under VAWA 982.354. 2. PHA owners may choose to bifurcate a lease, or remove a household member or lawful occupant from a lease to evict, remove, terminate occupancy rights or terminate assistance to such member who engage in criminal activity directly relating to DV, dating violence, stalking or SA. Does this conflict with PA law? There is not in SB 919 mentioning or condoning lease bifurcation. In a mixed eligibility household where the evicted member was the eligible member, remaining family members have reasonable time to establish eligibility or find other housing. 3. VAWA 2013 describes the notice requirements: HUD must develop the notice of rights and each public housing agency, manager, and owner is required to provide the notice: At the time an applicant is denied residency At the time that the individual is admitted to the program With any notification of eviction or termination of assistance Notice must be developed in other languages. 4. Final Rule clarifies that any information submitted to a covered housing provider under 24 CFR 5.2007, including the fact that an individual is a victim of domestic violence, dating violence, sexual assault or stalking, must be maintained in confidence by the covered housing provider. Unlike other information, DV info is restricted internally in PHAs, shared on a need to know basis. Only get access for reasons that specifically call for these individuals to have access to such information under applicable Federal, State, or local law. DV info does not get entered into shared databases. The guidance has awesome information on how to handle victim confidentiality, how to speak with victims, and best practices. Exceptions: abuser would get notice of victim statements that form the basis for his or her eviction. Information that would reveal the location of the victim or services her or she receives. Shelter address would need to be redacted from these documents. SB 919: information submitted by a tenant to a PHA requesting relocation is confidential, but can be disclosed in court. Only tenant can consent (with release) to disclosure of new address. Same requirement under VAWA in terms of who has access to confidential information Additional SB 919 provisions to mention: no fees or penalties for tenant exercising rights under this statute. Can use State and federal law to enforce the provisions of SB 919.

SB 919 and Similarities to VAWA

Senate Bill 919 Passed in December 2018. Covers public housing. Provides many of the same protections of VAWA 2013, including the ability of a tenant to relocate.

Coverage – Senate Bill 919 Domestic or sexual violence Main difference is all types of conduct are grouped within the definition of domestic and sexual violence i.e. DV, SA, Dating violence, and stalking definitions all fall under this one form of coverage. Domestic or sexual violence: Conduct against a family or household member that constitutes an offense under any of the following: i. Involuntary manslaughter ii. Simple assault iii. Aggravated assault iv. REAP v. Terroristic threats vi. Stalking* it is included in domestic and sexual violence it is not a separate definition or form or coverage. vii. Sexual assault* same as stalking 2. Conduct that constitutes abuse as defined by the PFAA 3. Conduct that constitutes sexual violence as defined by the SVPO. 4. Dating violence as defined by the Public School Code of 1949.

Relocation – SB 919 A tenant who is a victim of domestic or sexual violence may request a relocation if the tenant expressly requests an emergency transfer and: The tenant or an affiliated individual experienced domestic or sexual violence on or near the premises within (90) ninety calendar days of the request; or The tenant reasonably believes that the tenant or an affiliated individual is threatened with imminent harm of domestic or sexual violence if they remain on the premises. PHA needs to make a “good faith effort” in consultation with a tenant seeking relocation, to reasonably relocate the tenant to a safe and suitable dwelling internal or external. When seeking a relocation the tenant can request any of the following: Relocation from the tenant’s existing dwelling unit to another dwelling unit under the control of the authority. Receipt of a housing choice voucher. Assistance with identifying other housing providers which may have safe and available dwelling units. Assistance with contacting local organizations offering assistance to victims of domestic or sexual violence.

Advocate and Collaborate with PHAs

Systems Advocacy Annual and 5 year planning process PHAs are required to describe services for domestic violence, sexual assault, stalking, and dating violence. 24 CFR 903.6(a)(3), 903.7(m)(5). One on ones with PHA staff. Provide training and materials for PHA staff. Attend Board of Commissioner meetings. HUD encourages PHAs to develop strategies and relationships with community organizations, domestic violence victim advocates, and local law enforcement to provide services and resources to victims of domestic violence, stalking, dating violence, and sexual assault. Provide a training similar to this one (and please reach out to PCADV if you need assistance) for PHAs on the VAWA HUD guidance to explain to them the provisions and answer any questions. Guidance says VAWA regs require updates to PHA plans and administrative documents, you can ask about their status and offer help. There are ways for legal and victim service providers to help PHAs form these relationships and provider better services to survivors. PCADV is always there to assist you with any system advocacy efforts, developing a training, or creating resources and materials.

Systems Advocacy Topic Ideas: HUD encourages a DV preference. 24 CFR 960.206(b)(4), 982.(b)(4), Notice PIH-2017-08 Secs. 12.3, 15, 19 HUD encourages providers to bear moving costs. HUD encourages MOUs between providers for emergency transfers. Notice PIH-2017-08 sec. 15. Providers encouraged to waive written request requirements with exigent circumstances. Priority of emergency domestic violence transfers PHA obligations under Senate Bill 919. The connection of VAWA 2013 and Senate Bill 919 in PA. 1. Final rule extends this preference to victims of stalking, dating violence, and sexual assault.

Questions?

PCADV Legal Department McKenzie Clark, Esq., Legal Services Manager x134 mclark@pcadv.org Danni Petyo, Esq., CLR Attorney x162 dpetyo@pcadv.org Denise Lynch, Esq., VOCA Attorney x136 dlynch@pcadv.org 3606 Vartan Way Suite 101 Harrisburg, PA 17110 1-717-545-6400 1-833-PA-SAFE-LAW www.pcadv.org