1. How do federal VAWA 2005 provisions protect victim information?
U.S. Congress has clarified and reaffirmed the importance of victim confidentiality in two sections of VAWA:
- VAWA Section 3: "Universal Grant Conditions: Nondisclosure of Confidential or Private Information"
- VAWA Section 605: "Amendment to the McKinney-Vento Homeless Assistance Act."
2. How does the VAWA Section 3 confidentiality provision more broadly protect victim information?
In VAWA 2005, U.S. Congress amends Violence Against Women Act (VAWA) and Family Violence Prevention and Services Act (FVPSA) funded programs to provide more protections for victim information in multiple arenas, including in public records and databases. With this provision, U.S. Congress clarified and affirms existing confidentiality practices that protect the safety and privacy of victims of domestic violence, dating violence, sexual assault and stalking.
VAWA Section 3 prohibits sharing personally identifying information about victims without "reasonably time-limited," written and informed consent. Given this new provision, VAWA and FVPSA funded programs are prohibited from disclosing personally identifying victim information to any third party or third party database, including an HMIS system. This provision allows a survivor to choose to temporarily waive her confidentiality for a meeting or conversation or other limited period of time, through informed, written consent and a specific short-term release.
3. What HMIS (Homeless Management Information Systems) related provisions are included in VAWA?
In VAWA Section 605, the U.S. Congress amended the McKinney-Vento Homeless Assistance Program in VAWA to protect personally identifying information of victims.
Domestic Violence Programs shall not provide identifying information about victims. VAWA 2005 prevents local victim service programs from providing personally identifying information about victims. It is Congress' clear intent that encoding or scrambling personally identifying information does not make it subject to disclosure.
New Rule Making. If HUD wants to mandate that victim services programs provide non-identifying client-level information, HUD must first create a new public notice and comment period.
Non-Identifying Data. After notice and comment, HUD may request that victim service providers enter into HMIS non-identifying information such as aggregate totals, or other demographics that do not identify a victim. Since it is possible to identify many victims in rural states and small communities by nothing more than ethnicity or age + zip code, the information that victim service providers can share must be carefully scrutinized and limited. In addition, non-personally identifying information must be further protected by being "de-identified, encrypted, or otherwise encoded."
Stronger Confidentiality Laws. Over 30 U.S. states have advocate confidentiality laws that prevent local programs from disclosing any identifying information about victims, encrypted or otherwise, and if those protections are stronger than the VAWA Section 605 protection, the stronger protection will prevail. As mentioned above, VAWA 2005 has strengthened the federal confidentiality laws for VAWA and FVPSA funded programs, which further prohibits the sharing of any identifying victim information.
4. When did these VAWA provisions take effect?
VAWA Section 605, the amendment to the McKinney-Vento program went into effect when President Bush signed VAWA 2005 into law on January 5, 2006. U.S. Federal agencies have provided information to grantees about the confidentiality provision in VAWA Section 3, including when it went into effect and how it applies. In collaboration with U.S. federal agencies, NNEDV will continue to provide guidance to the field.
5. Which of these VAWA provisions will apply to my program?
VAWA Section 605 amends the McKinney-Vento Homeless Assistance Act to prohibit all victim service providers from entering personally-identifying information into an HMIS database. Consistent with this federal law, victim service providers and the Continuums of Care to which they belong should not be providing personal, identifying information about victims, nor should they be punished by having their funds withheld or application incentives removed for complying with this law or State Law.
The Confidentiality Provisions in VAWA Section 3 apply to programs funded by the Violence Against Women Act (VAWA) or the Family Violence Prevention and Services Act (FVPSA). Many local domestic violence programs receive VAWA and FVPSA funding through their state VAWA and FVPSA Administrators. Your state domestic violence or sexual assault coalition can help you determine if you receive VAWA or FVPSA funding.
6. In Section 605, who are "victim service providers?"
Victim service providers include nonprofit organizations whose primary mission is to provide services to victims of domestic violence, dating violence, sexual assault or stalking, such as rape crisis centers, battered women's shelters and domestic violence transitional housing programs. This also includes faith-based programs and homeless shelters which have specific victim services programs or umbrella organizations that have specific victim services programs as a part of its organization. In those cases, confidentiality protections would only extend to the specific program in question, unless the larger organization receives VAWA or FVPSA funding and falls under Section 3 protection.
7. How can we help protect victims who use other services such as homeless shelters?
Victims are not automatically exempt from having their information entered into HMIS when they use other HUD-funded services. It is critical that advocates educate victims about their right to decline any information about them being entered into an HMIS system and also educate other HUD-funded agencies to provide full notice and consent (not "inferred consent," a concept used by some HMIS programs). All clients should have the opportunity to decline any or all electronic HMIS entry - whether the information is "scrambled," "hidden" or "open." NNEDV will continue to work with Congress and other national homeless organizations to protect all victims who use HUD-funded services.