VAWA 2013 – AVA’s Summary of Legislation
Hello STOP Administrators!!
AVA is providing the following summary of some of the changes included in VAWA 2013. Please remember that the effective date of VAWA 2013 is October of this year so these changes would apply to your 2014 STOP awards. This summary primarily includes changes affecting the STOP Formula Grant Program and is not an exhaustive list of all changes. The discussion provided should not be relied upon as a legal interpretation of VAWA 2013; it is simply a summary of some of the changes identified. Should you need a legal interpretation on a specific issue, we would recommend that you contact your program manager at OVW.
DEFINITIONS: VAWA 2013 added or clarified several definitions. I’ve discussed some below and simply listed others.
Culturally specific – VAWA 2013 refers to culturally specific as being those racial and ethnic minority groups defined in the Public Health Service Act at 42 U.S.C. 300u-6(g). That act defines racial and ethnic minority groups as American Indians (including Alaska Natives, Eskimos, and Aleuts); Asian Americans; Native Hawaiians and other Pacific Islanders; Blacks; and Hispanics. The term “Hispanic” means individuals whose origin is Mexican, Puerto Rican, Cuban, Central or South American, or any other Spanish-speaking country.
It appears that the definition of culturally specific is primarily focused on women of color. This narrow definition of culturally specific no longer includes such groups as the disabled community or other ethnic minorities not specifically listed. However, those groups could possibly be included under the new definition of “Population Specific Services”. The Implementation Plan must address how each state/territory will meet the needs of culturally specific groups.
Personally Identifying Information – this definition is expanded to include additional information (driver’s license numbers, passport number, or student identification number) that is likely to disclose a victim’s identity and adds “regardless of whether the information is encoded, encrypted, hashed, or otherwise protected”.
Rape Crisis Center – the definition of rape crisis center now includes governmental entities provided, however, that the entity is not part of the criminal justice system (such as a law enforcement agency), and the governmental entity must be able to offer comparable level of confidentiality as a non-profit entity.
Rural State – this has been changed to refer to a population density of 57 (formerly 52) or fewer persons per square miles or a state whose largest county has fewer than 250,000 (formerly 150,000).
Sexual Assault – expands the definition to “including when the victim lacks capacity to consent”.
Underserved Populations – now includes victims underserved because of sexual orientation and gender identity.
Victim Services or Services – now includes advocacy “through medical, civil or criminal justice”.
Youth – previously identified youth as a teen or young adult but now clearly defines youth as a person who is 11-24 years of age. One question that arose is whether a CAC would now be eligible for STOP funding. OVW is reviewing this question; however, if a CAC were to be considered for funding, they would need a documented history of providing treatment for SA and DV.
Other new or expanded definitions include Alaska Native Village, Culturally Specific Services, Homeless, Population Specific Organization, Population Specific Services, Sex Trafficking, Tribal Coalition, and Unit of Local Government.
NEW PURPOSE AREAS:
(14) developing and promoting State, local, or tribal legislation and policies that enhance best practices for responding to domestic violence, dating violence, sexual assault, and stalking;
This new purpose area seems to promote lobbying under the prior definition AVA and administrators have been provided. In talking with Marnie Sheils, AVA learned that the actual lobbying prohibition describes activities that constitute lobbying “unless prior authorization has been provided”. For years administrators have voiced their concerns, and policy makers recognized that states need to push for legislative and policy changes to comply with changes in VAWA. The new language in VAWA 2013 provides the direct authorization needed thereby waiving the lobbying restrictions in regard to “enhancing best practices . . . .”
(15) developing, implementing, or enhancing Sexual Assault Response Teams, or other similar coordinated community responses to sexual assault;
(16) developing and strengthening policies, protocols, best practices, and training for law enforcement agencies and prosecutors relating to the investigation and prosecution of sexual assault cases and the appropriate treatment of victims;
(17) developing, enlarging, or strengthening programs addressing sexual assault against men, women, and youth in correctional and detention settings;
(18) identifying and conducting inventories of backlogs of sexual assault evidence collection kits and developing protocols and policies for responding to and addressing such backlogs, including protocols and policies for notifying and involving victims;
(19) developing, enlarging, or strengthening programs and projects to provide services and responses targeting male and female victims of domestic violence, dating violence, sexual assault, or stalking, whose ability to access traditional services and responses is affected by their sexual orientation or gender identity, as defined in section 249(c) of title 18, United States Code; and
(20) developing, enhancing, or strengthening prevention and educational programming to address domestic violence, dating violence, sexual assault, or stalking, with not more than 5 percent of the amount allocated to a State to be used for this purpose.
In calculating population for purposes of determining funding amounts, VAWA 2013 removes the phrase “not including populations of Indian tribes”. This change ensures that tribal populations will be included in the total population count in all states/territories. Therefore, states with high tribal populations will most likely see an increase in their funding as compared to those states with lower tribal populations.
In the area addressing the category distributions, the 5% designated in the court category must now go “to” State and local courts (including juvenile courts). The court category can no longer be awarded to non-court entities for projects benefiting the court system. However, a court receiving an award from the state could sub-contract with a non-court entity.
VAWA 2013 also mandates that 20% of the total award shall go to projects that meaningfully address sexual assault. This 20% must be allocated for programs or projects from 2 or more of the proscribed categories (e.g. law enforcement, prosecution, victim services, courts). This doesn’t change the totals distributed to law enforcement, prosecution, victim services or courts; it simply states that administrators must ensure that 20% of their award must address sexual assault and must be pulled from 2 or more of the current categories to reach to full 20%. States will have 2 years from enactment (October 2013) to meet this mandate.
A modification was made as it relates to match under the STOP program. As you will recall, states were required to ensure a 25% match to all grant expenditures award. This included funds awarded to non-profit, non-governmental organizations. The new language states that “costs of the projects for victim services or tribes for which there is an exemption . . . shall not count toward the total costs of the projects.” Previously, OVW interpreted that funds awarded to victim service providers under the law enforcement, prosecution, and court categories must provide match. This is currently under review due to the new definitions offered for victim services and victim service provider within VAWA 2013.
States are given an additional 3 years to ensure compliance with some of the new mandates of VAWA 2013. Of particular interest are:
- States must ensure they incur the full out-of-pocket costs for forensic medical exams – states will no longer be able to bill a victim’s insurance company and reimburse for out-of-pocket costs.
- States must coordinate with health care providers in the region to notify victims of sexual assault of the availability of rape exams at no cost to the victims.
States/Territories will need to provide proof of compliance with:
- Payment of forensic medical exams,
- Payment for fees and costs relating to domestic violence and protection order cases, and
- Prohibition of polygraph examinations.
AVA will work with OVW to clarify what this “proof” must look like.
Remember – your Implementation Plan for 2014-2016 will be due at the same time of your FY 2014 STOP Application.
VAWA 2013 clearly defines who must be involved in the planning process. You should review this carefully when initiating the planning process. Those entities include:
- The state sexual assault coalition
- The state domestic violence coalition;
- The law enforcement entities within the state;
- Prosecution offices;
- State and local courts;
- Tribal governments in those states with state or federally recognized Indian tribes;
- Representatives from underserved populations, including culturally specific populations;
- Victim services providers;
- Population specific organizations; and
- Other entities that the state or Attorney General identifies as needed for the planning process.
AVA questioned the reference to “Tribal governments” because some states have numerous recognized tribes within their borders and it would be difficult to ensure all are represented. OVW determined that if the state has a tribal consortia that would provide representation for all tribes, a representative from the tribal consortia would satisfy this mandate.
There is a new mandate that STOP Implementation Plans shall be coordinated “with the State plans described in … of the Family Violence Prevention and Services Act … and the programs described in … the Victims of Crime Act … and … the Public Health Service Act.” AVA will be working with OVW to clarify what level of coordination is necessary to meet this mandate.
States must also include language on how they will meet the mandates for the 20% set-aside for sexual assault as described in subsection (c)(5). They will also be required to provide the following documentation:
- From each member of the planning team as to their participation;
- From prosecution, law enforcement, court, and victim services programs describing
- The need for the grant
- The intended use of grant funds
- Expected results
- A description of how states will ensure that subgrantees will consult with victim service providers during the drafting of their applications;
- Demographic data on the distribution of underserved populations within the states and how the states will meet the needs of underserved, including the minimum for population specific services.
- How states will ensure equitable distribution.
- Goals and objectives for reducing domestic violence-related homicides.
AVA will work with OVW to clarify the best way to document each of the items listed.
Please note that in reference to FY 2013 STOP awards, administrators have the following options:
- Administrators can write and submit a new plan this year if they’ve already started one (this plan would only be good for this one year only), or
- Administrators can submit a letter indicating they will continue operating for another year under the 2010-2012 plan previously submitted, or
- Administrators can offer minor modifications to the FY 2010-2012 plan for FY 2013 if necessary.
With the FY 2014 STOP application:
- All administrators must submit a new plan under the new guidelines for a planning cycle of 2014-2016. This is regardless of whether a new plan was submitted for FY 2013.
This language is one of the most beneficial to STOP administrators as it provides the flexibility to spend down awards when monies are returned or unspent. The language in VAWA 2013 allows that “a state may use any returned or remaining funds for any authorized purpose under this part if (1) funds from a subgrant awarded under this part are returned . . . or (2) the state does not received sufficient eligible applications to award full funding within the allocations . . .” This language allows administrators to pool small pots of returned or unspent monies and fund additional projects that fall within the federal purpose areas regardless of which category the monies were returned from or where they are reallocated.
Administrators do not need prior approvals from OVW to facilitate the reallocation of funds; however, administrators should document the fact that the monies were returned. In the case of their not receiving sufficient applications in a specific category, states should be prepared to show what type of outreach they did in attempting to ensure they received eligible applicants for the specific category. This information would be kept with your internal records and would not need to be provided to OVW unless asked for.
AVA also questioned how reallocated funds would be reflected in their annual Muskie report. OVW indicated they will coordinate with Muskie to see if any modifications will be necessary to the annual reports.
During the recent calls with OVW, Marnie Sheils also identified that STOP funds can now be used for a large range of legal assistance including divorce services. She described that STOP-funded projects for the provision of legal assistance must meet special conditions identified under the LAV grant, e.g. that the program has demonstrated expertise in providing legal assistance to victims of domestic violence, dating violence, sexual assault or stalking in the targeted population.
As stated above, this is not an exhaustive list of changes to VAWA. If you have questions or concerns you can contact me, your OVW program manager, or Marnie Sheils, OVW Legal counsel.