Attachment H_Certification of VAWA Protections Procedures and Policy~1.pdf

Long Beach CoC VAWA Policy v.1

This policy requires all permanent housing projects, transitional housing projects, and homelessness prevention programs that provide short- and or medium-term rental assistance, funded by the Long Beach Continuum of Care to establish procedures and protections for persons experiencing domestic violence, dating violence, sexual assault, or stalking in accordance with the requirements set forth in 24 CFR part 5, subpart L, implementing the requirements of the Violence Against Women Reauthorization Act (VAWA)1 of 2013.

DEFINITIONS (24 CFR 5.2003; 24 CFR 5.2005)

1. Actual and Imminent Threat: A physical danger that is real, would occur within an immediate time frame, and could result in death or serious bodily harm. In determining whether an individual would pose an actual and imminent threat, the factors to be considered include: the 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 could occur.

2. Abuser or perpetrator: An individual who has engaged in criminal activity directly relating to domestic violence, dating violence, sexual assault, or stalking2

3. Affiliated Individual, with respect to an individual: A spouse, parent, brother, sister, or child of that individual, or a person to whom that individual stands 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.

4. Bifurcate: To divide a lease as a matter of law, subject to the permissibility of such process under the requirements of the grantor 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 or lawful occupants.

5. Covered Housing Provider: The individual or entity under a housing program that has responsibility for the administration and/or oversight of VAWA protections and includes Public Housing Agencies (PHAs), sponsors, owners, mortgagors, managers, State and local governments or agencies thereof, nonprofit or for-profit organizations or entities. The program-specific regulations for the housing programs identify the individual or entity that carries out the duties and responsibilities of the housing provider; that is, depending upon the VAWA duty or responsibility to be performed by a housing provider, the housing provider may not always be the same individual or entity.

6. Dating Violence: Violence that is committed by a person:

a. Who is or has been in a social relationship of a romantic or intimate nature with the victim;

and

b. Where the existence of such a relationship shall be determined based on a consideration of the following factors:

i. The length of the relationship;

ii. The type of relationship; and

1 Notwithstanding the title of the statute, protections are not limited to women but cover victims of domestic violence, dating violence, sexual assault, and stalking, regardless of sex, gender identity, or sexual orientation.

2 Per HUD Form 5380 Notice of Occupancy Rights

Long Beach Continuum of Care (CoC) Violence Against Women Act (VAWA) Protections, Procedures, & Policy

iii. The frequency of interaction between the persons involved in the relationship.

7. Domestic Violence: Includes, but is not limited to, felony or misdemeanor crimes of violence committed by:

a. A current or former spouse or intimate partner of the victim3,

b. A person with whom the victim shares a child in common,

c. A person who is cohabitating with or has cohabitated with the victim as a spouse or intimate partner,

d. A person similarly situated to a spouse of the victim under local domestic or family violence laws, or

e. Any other person against an adult or youth victim who is protected from that person's acts under domestic or family violence laws.

8. Sexual Assault: Any nonconsensual sexual act proscribed by Federal, tribal, or State law, including when the victim lacks capacity to consent.

9. Stalking: Engaging in a course of conduct directed at a specific person that would cause a reasonable person to:

a. Fear for the person's individual safety or the safety of others; or

b. Suffer substantial emotional distress.

10. Internal emergency transfer: An emergency relocation of a participant to another unit where the participant would not be categorized as a new applicant; that is, the participant may reside in the new unit without having to undergo an application process.

11. External emergency transfer: An emergency relocation of a participant to another unit where the participant would be categorized as a new applicant; that is the participant must undergo an application process in order to reside in the new unit.

12. Safe unit: A unit that the person experiencing domestic violence, dating violence, sexual assault, and/or stalking believes is safe.

REQUIREMENTS

1. NOTIFICATION REQUIREMENTS

Housing providers shall provide a Notice of Occupancy Rights Under the Violence Against Women Act form (HUD Form 5380) and a Certification of Domestic Violence, Dating Violence, Sexual Assault form (HUD Form 5382) to applicants and participants at the following times:

I. When the applicant is denied assistance or admission to permanent housing or transitional housing;

II. When the applicant is provided assistance or admission to permanent housing or transitional housing;

III. When a participant is given notification of eviction or notification of termination of assistance;

a. Tenant-based rental assistance (TBRA) providers shall ensure that the property owner or manager of the housing provides a Notice of Occupancy Rights Under the Violence Against Women Act form and a Certification of Domestic Violence, Dating Violence, Sexual Assault form to participants with any notification of eviction.

IV. When a participant undergoes an annual recertification or lease renewal process. When there will be no recertification or lease renewal for a participant, through written notice.

3 The term “spouse or intimate partner of the victim” includes a person who is or has been in a social relationship of a romantic or intimate nature with the victim, as determined by the length of the relationship, the type of the relationship, and the frequency of interaction between the persons involved in the relationship.

Housing providers shall make available the Notice of Occupancy Rights Under the Violence Against Women Act form and a Certification of Domestic Violence, Dating Violence, Sexual Assault form in multiple languages per guidance issued by HUD in accordance with Executive Order 13166. Both forms are available in multiple languages on the HUD Clips website at the following URL:

https://www.hud.gov/program_offices/administration/hudclips/forms/hud5a

2. CONTRACT, LEASE, AND OCCUPANCY AGREEMENT PROVISIONS

Contracts, leases, and occupancy agreements between the housing provider and an owner or landlord of the housing must include the following:

I. Requirement to comply with protections for participants experiencing domestic violence, dating violence, sexual assault, and/or stalking;

II. Prohibited basis for denial of assistance.

Housing providers may not deny admission or assistance to an applicant on the basis or as a direct result of the fact that the applicant has experienced or is experiencing domestic violence, dating violence, sexual assault, and/or stalking, if the applicant otherwise qualifies for admission, assistance, participation or occupancy.

III. Prohibited basis for termination of assistance or eviction.

Housing providers may not terminate housing or assistance to a participant on the basis or as a direct result of the fact that the applicant or tenant has experienced or is experiencing domestic violence, dating violence, sexual assault, and/or stalking, if the applicant otherwise qualifies for admission, assistance, participation or occupancy.

IV. Termination on the basis of criminal activity.

Housing providers may not deny a participant tenancy or occupancy rights solely on the basis of criminal activity related to domestic violence, dating violence, sexual assault, and/or stalking by a member of the household, any guest of the participant, or other person under the control of the tenant if the participant, or an affiliated individual (as defined in this policy) of the participant is the victim or threatened victim of the domestic violence, dating violence, sexual assault, and/or stalking.

V. Housing providers shall not construe an incident of domestic violence, dating violence, sexual assault, and/or stalking as a serious or repeated violation of a lease

VI. Housing providers shall not construe an incident of domestic violence, dating violence, sexual assault, and/or stalking as good cause for terminating the assistance, tenancy, or occupancy rights

VII. Except for tenant-based rental assistance, housing providers must require that any lease, sublease, or occupancy agreement with a participant permits the participant to terminate the agreement without penalty if housing provider determines the participant qualifies for an emergency transfer under the housing provider’s emergency transfer plan.

VIII. For tenant-based rental assistance, housing providers must enter into a contract with the owner or landlord of the housing that requires the owner or landlord to:

a. comply with the provisions set forth in 24 CFR part 5, subpart L; and

b. include a lease provision that include all requirements that apply to tenants, the owner or https://www.hud.gov/program_offices/administration/hudclips/forms/hud5a the lease under 24 CFR part 5, subpart L, as supplemented by 24 CFR part 578(j)(5), including the prohibited bases for eviction and restrictions on construing lease terms. The lease may specify that the protections only apply while the participant received tenant-based rental assistance under the Continuum of Care Program.

IX. The housing provider must ensure that the requirements set forth in this policy, 24 CFR part 5, subpart L, and 24 CFR part 578(j) are applied to any contracts, leases, subleases, or occupancy agreements entered into, or renewed, following the expiration of an existing term, on or after the effective the initial release date of this policy. For leases for tenant-based rental assistance existing prior to this date, housing providers must enter into a contract before the next lease renewal.

3. EMERGENCY TRANSFER PLAN

Housing providers must have an emergency transfer plan for participants experiencing domestic violence, dating violence, sexual assault, and/or stalking, based on HUD’s model emergency transfer plan (HUD Form 5381). Housing providers must make their emergency transfer plans available upon request and, when feasible, make their plans publicly available. No provisions in the emergency transfer plan supersede any eligibility or occupancy requirements that apply under a housing program.

The emergency transfer plan must indicate that a participant is eligible for an emergency transfer if:

- Participant requests the transfer in writing4, and

- Participant reasonably believes there is a threat of imminent harm from further violence if the participant remains within the same dwelling unit that the participant is currently occupying

- In the case of sexual assault specifically, if the sexual assault occurred on the premises during the

90-calendar-day period preceding the date of the request for transfer.

The emergency transfer plan must indicate that to establish eligibility for an emergency transfer under VAWA, housing providers shall only require:

- Participant’s written request to the housing provider for an emergency transfer where the participant certifies that they meet the criteria for protections under VAWA4

- At the discretion of the housing provider, documentation of the occurrence(s) of domestic violence, dating violence, sexual assault, stalking, and/or human trafficking (in accordance with the Documentation Section of this policy) for which the participant is seeking the emergency transfer, only if documentation of that occurrence has not already been provided.

The emergency transfer plan must:

- Detail priority measures given to participants who qualify for an emergency transfer under VAWA in relation to other categories of participants seeking transfers and individuals seeking placement on waiting lists5,

- Incorporate strict confidentiality measures to ensure that housing provider does not disclose location of the participant’s dwelling unit to a person who committed or threated to commit an act of domestic violence, dating violence, sexual assault, or stalking against a participant,

- Detail policies for internal emergency transfers for participants when requested and a safe unit:

o Is immediately available; and o Is not immediately available.

4 Participants may use an Emergency Transfer Request for Certain Victims of Domestic Violence, Dating Violence, Sexual Assault or Stalking (HUD Form 5383) provided by the housing provider.

5 See Long Beach Continuum of Care Coordinated Entry System Policy & Procedure: Safety Planning

Policies for when a safe unit is not immediately available must ensure that requests for such transfers receive, at a minimum, any applicable additional priority that is already provided to other types of emergency transfer requests.

- Detail reasonable efforts for external emergency transfers for participants when requested and a safe unit is not immediately available.

Must include policies detailing assistance for participants seeking to transfer out of the housing provider’s program or project, and for participants seeking a transfer into the housing provider’s program or project. These policies may include:

• Arrangements, including memoranda of understanding, with other housing providers to facilitate moves; and

• Outreach activities to organizations that assist or provide resources to victims of domestic violence, dating violence, sexual assault, or stalking.

- Include policies indicating that participants can concurrently request an internal emergency transfer and external emergency transfer when a safe unit is not immediately available.

- Describe policies for participants who have tenant-based rental assistance and who are eligible for protections under VAWA to move quickly while retaining their assistance.

- Include procedures for encouraging participants to take reasonable precautions to be safe while pending processing of the transfer and the actual transfer.

Record Keeping of Emergency Transfers

Housing providers must keep a record of all emergency transfers requested under its emergency transfer plan and the outcomes of these requests. Records must be maintained for a minimum of three years. Records of requests and outcomes must be reported annually to the City of Long Beach Homeless Services Division. The Homeless Services Division will annually report requests and outcomes to HUD.

4. Protections Available to Persons Experiencing Domestic Violence, Dating Violence, Sexual Assault or Stalking

I. Lease Bifurcation

Housing providers may bifurcate a lease, or remove a household member from a lease in order to evict, remove, terminate occupancy rights, or terminate assistance to such member who engages in criminal activity directly relating to domestic violence, dating violence, sexual assault or stalking against an affiliated an affiliated individual or other individual:

a. Regardless of whether the household member is a signatory to the lease; and

b. Without evicting, removing, terminating assistance to, or otherwise penalizing a victim of such criminal activity who is also a tenant or lawful occupant

If housing provider exercises option to bifurcate a lease, and the individual who was evicted or for whom assistance was terminated was the eligible tenant under the housing program, the housing provider shall provide to any remaining tenant(s) that were not already eligible 90-calendar days from the date of bifurcation of the lease to:

a. Establish eligibility for the respective housing program; or

b. Establish eligibility under another housing program; or

c. Find alternative housing

The 90-calendar day period can be extended up to an additional 60 calendar days, unless prohibited from doing so by statutory requirements of the program, or unless the time period would extend beyond expiration of the lease.

Lease bifurcation shall be carried out in accordance with any requirements or procedures as may be prescribed by Federal, State, or local laws for termination of assistance or leases, and in accordance with any requirements under the relevant housing program.

II. Efforts to Promote Housing Stability for Victims of Domestic Violence, Dating Violence, Sexual Assault or Stalking

Housing providers are encouraged 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 housing providers, and for the housing provider to bear the costs of any transfer, where permissible.

5. CONFIDENTIALITY

All information provided to housing providers concerning incidents of domestic violence, dating violence, sexual assault, and/or stalking shall be kept confidential and shall not be entered into any shared database. Housing providers shall not allow any employees to have access to or disclose any confidential information to any entity or individual, except when the disclosure is:

1. Requested or consented to in writing by the participant in a time-limited release,

2. Required for use in an eviction proceeding or hearing regarding termination of assistance, or

3. Otherwise required by applicable Federal, State, or local law

DOCUMENTATION

If a participant indicates the participant is experiencing domestic violence, dating violence, sexual assault, and/or stalking, the participant is entitled to receive housing protections or remedies eligible of VAWA. In such instances, the housing provider may request in writing that the participant submit written documentation to certify the occurrence of domestic violence, dating violence, sexual assault, and/or stalking within 14 business days. Housing providers may, but are not required to, extend the time to submit the documentation with reasonable discretion. Housing providers shall offer to assist participants with completing the certification form.

The method by which the participant elects to submit as documentation of domestic violence, dating violence, sexual assault, or stalking, is at the discretion of the participant. The following types of documentation are permissible:

1. HUD Form 5382, Certification of Domestic Violence, Sexual Assault, or Stalking* made available from the housing provider to participants who are seeking VAWA protections from the housing provider;

2. Document signed by a professional**, defined as a(n):

a. Employee, agent, or volunteer of a victim service provider;

b. Attorney;

c. Medical professional; or

d. Mental health professional from whom the participant sought assistance relating to domestic violence, dating violence, sexual assault, or stalking, or the effects of abuse. The document must specify, under penalty of perjury, that the professional believes in the occurrence of the incident of domestic violence, dating violence, sexual assault, or stalking that is the grounds for protection and remedies, and that the incidence meets the applicable definition of domestic violence, dating violence, sexual assault, or stalking per this policy;

3. Record of a Federal, State, tribal, territorial, or local law enforcement agency, court, or administrative agency**; or

4. A statement or other evidence as provided by the participant*, at the discretion of the housing provider.

* Self-certification, **Third-party documentation

A participant need only self-certify in writing to be eligible to receive the respective housing protections, with the exception of when conflicting information/certifications exist (e.g., 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). When conflicting information/certifications exist, the housing provider may require third-party documentation submitted by the participant within 30 calendar days of request of the documentation.

Record Keeping of Emergency Transfers

Housing providers must keep a record of all emergency transfers requested under its emergency transfer plan and the outcomes of these requests. Records must be maintained for a minimum of three years. Records of requests and outcomes must be reported annually to the City of Long Beach Homeless Services Division. The Homeless Services Division will annually report requests and outcomes to HUD.

LIMITATIONS OF VAWA

1. VAWA does not limit housing providers, when notified of a court order, from complying with court orders with respect to:

I. The rights of access or control of property, including civil protection orders issued to protect of victim of domestic violence, dating violence, sexual assault, or stalking; or

II. The distribution or possession of property among members of a household.

2. VAWA does not limit any available authority of housing providers to evict or terminate assistance to a tenant for any violation not premised on an act of domestic violence, dating violence, sexual assault, or stalking that is in question against the tenant or an affiliated individual of the tenant. However, the housing provider must not subject said tenant or affiliated individual of said tenant to a more demanding standard than other tenants in determining whether to evict or terminate assistance.

3. VAWA does not limit any available authority of housing providers to evict or terminate assistance to a tenant if the housing provider can demonstrate an actual and imminent threat to other tenants or those employed at or providing service to property of the housing provider would be present if that tenant or lawful occupant is not evicted or terminated from assistance. In this context, words, gestures, actions, or other indicators will be considered an “actual and imminent threat” if they meet the standards provided in the above definition of “actual and imminent threat”. Such an eviction or termination of assistance should be utilized 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 to develop other plans to keep the property safe, or seeking other legal remedies to prevent the perpetrator from acting on a threat. Restrictions predicated on public safety must not be based on stereotypes, but must be tailored to particularized concerns about individual residents.

Project Name

I hereby certify that that the above-named Project will comply with the Long Beach Continuum of Care Violence Against Women Act Protections, Procedures, and Policy, and cited federal regulations referenced in said Policy. I acknowledge that the Long Beach Continuum of Care reserves the right to request and inspect policies and procedures in place for these requirements.

Signature of Authorized Agency Official Date

Name and Title of Signatory (please print)

Long Beach Continuum of Care (CoC) Certification of VAWA Protections, Procedures, & Policy