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TDEM CONFERENCE 2016FEMA PA: NAVIGATING THE APPEALS PROCESS

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I. Introductions

Roman1

Presenters

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Presentation OverviewTodays Presentation:General OverviewAppeals ProcessFirst AppealsSecond AppealsArbitrationDos and DontsQuestions

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II. Overview

Zein4

APPEALS PROCESS:DefinitionsAppeal A proceeding undertaken to have a decision reconsidered by a higher authority, especially the submission of a lower courts or agencys decision to a higher court for review and possible reversal.

Administrative Review Review of an administrative proceeding within the agency itself.

This presentation will focus on appeals process, procedure, and guidelines within the Federal Emergency Management Agencys Public Assistance Program.

ZeinSource: Blacks Law Dictionary (10th ed. 2014)

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APPEALS PROCESS:Purpose of AppealAppeals ProcessThe FEMA appeals process is designed to "create an organized, consistent, and efficient system" for responding to Public Assistance Program disputes.

Process aims to ensure that applicants obtain accurate, fair, and well-reasoned eligibility determinations that are consistent with applicable statutes, regulations, and policies.

ZeinSource: Recovery Directorate Directive - Public Assistance Program Appeals

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APPEALS PROCESS:Who May Submit an Appeal?The Public Assistance Program appeal process is available to:ApplicantsRecipientsSubrecipients

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APPEALS PROCESS:What May I Appeal?Subrecipients may appeal any FEMA determination related to an application for, or the provision of, assistance under the PA Program.Stafford Act 423, codified at 42 U.S.C. 5189a44 C.F.R. 206.206

ZeinAll applicants for federal disaster assistance are entitled to appeal any FEMA decision regarding eligibility for, or amount of, such assistance. - Recovery Directive Manual, Forward at 2.

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APPEALS PROCESS:How May I Appeal?Subrecipients must submit a written appeal to the Recipient (TDEM) within 60 days of receiving written notification of FEMAs determination.44 CFR 206.206(c)(1)

TDEM must forward the appeal with its written recommendation to FEMA within 60 days of its receipt of the appeal.44 CFR 206.206(c)(2) 9April 13, 2016

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APPEALS PROCESS:What May I Appeal?Request for Public Assistance An Applicants first need to submit an Appeal may arise immediately following FEMAs rejection of a Request for Public Assistance.

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III. Process

Sarah11

APPEALS PROCESS:Appeals Sometimes UnavoidableThe goal is to avoid Appeals altogether, but sometimes, Appeals are necessary and unavoidable.Common AppealsNet Small Project Overrun appealProcurement (Emergency Procurements)Reasonableness (Costs)Cost Estimate/Scope of Work (PW writing)

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Sarah

Net Small Project Overrun appealActual costs > FEMA Estimates

Procurement (Emergency Procurements)Costs are disallowed due to improper procurement, however, you have documentation to prove exigency.

Reasonableness (Costs)FEMA disallows costs b/c contract costs are too high. However, you have a solid argument to explain why your contract prices are reasonable given the circumstances.

Cost Estimate/Scope of Work (PW writing)

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APPEALS PROCESS:Administrative ReviewYou are entitled to two opportunities for Administrative Review:FEMA Regional Administrator - 1st Appeal; and if necessaryAssistant Administrator for the Recovery Directorate at FEMA HQ - 2nd Appeal

Sarahapplicants for federal disaster assistance are entitled to appeal any FEMA decision regarding eligibility for, or amount of, such assistance. - Recovery Directive Manual, Forward at 2.

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APPEALS PROCESS:Dispute Resolution Pilot ProgramIn the future, Arbitration may be an option in Lieu of Second Appeals:The Sandy Recovery Improvement Act, passed in 2013, established a dispute resolution pilot program that enabled applicants, in certain cases, to forgo a second appeal in favor of binding arbitration before an independent panel. Pilot Program ended December 31, 2015. Option not currently available to Applicants.

Sarah

44 C.F.R. 206.210

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APPEALS PROCESS:Dispute Resolution Pilot ProgramArbitration Pilot Program :Was available to Applicants that received a 1st Appeal DecisionAmount in dispute $1,031,000.00Assistance pertains to disaster declaration after October 30, 2012.

Sarah

By statute, the pilot program is authorized through December 2015. Following the conclusion of the pilot program, the Comptroller General of the United States will issue a report to congress analyzing the effectiveness of the program. Source: http://www.fema.gov/sandy-recovery-improvement-act-2013 (RC)15

IV. First Appeal

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APPEALS PROCESS:First Appeal

First Appeal Process: Filed by a Subrecipient with FEMA Regional Administration.

For Texas Subrecipients, the FEMA Regional Administration is Region VI.

RegionVI oversees federal emergency management for Arkansas, Louisiana, New Mexico, Oklahoma, Texas and 68 federally recognized Tribal Nations.

RomanNo hearing. It is all paper appeal. 17

APPEALS PROCESS:What Happens with My Appeal?FEMA reviews Appeal and, within 90 days of receiving it, takes one of two actions: Provides its final written decision to the Recipient; ORRequests additional information specifying the date FEMA must receive the information (usually 30 days).44 CFR 206.206(c)(3)

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APPEALS PROCESS:What Happens with My Appeal?First Appeal ProcessSubrecipient disputes a FEMA Decision;Subrecipient submits written Appeal to TDEM within 60 days of receipt of adverse decision;TDEM forwards Appeal, supporting documentation, and TDEMs recommendations to FEMA within 60 days of receipt of subrecipients appeal;FEMA creates an administrative record for the Appeal;FEMA may issue a Request for Information (30 day response time);Regional Administrator issues a Decision to TDEM within 90 days of receiving all information necessary to make a decision;TDEM transmits Decision to Subrecipient including information pertaining to Second Appeal rights.

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V. Second Appeal

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APPEALS PROCESS:Second Appeal

Second Appeal:2nd Appeal filed by a Subrecipient following FEMA Regional Administrations First Appeal decision.

2nd Appeal is evaluated and decided by FEMAs Assistant Administrator for the Recovery Directorate.

Mr. Alex Amparo is the Assistant Administrator of the Recovery Directorate at the Federal Emergency Management Agency.

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APPEALS PROCESS:What Happens with My Appeal?Second Appeal ProcessSubrecipient disputes FEMA First Appeal Decision;Subrecipient submits written Second Appeal to TDEM within 60 days of receipt of the First Appeal decision;TDEM forwards the Second Appeal to the Regional Administrator;The Regional Administrator forwards the Second Appeal to FEMA headquarters for review and decision;FEMA may issue a Request for Information (30 day response time);Assistant Administrator issues a Decision to TDEM within 90 days of receiving all information necessary to make a decision;TDEM transmits Decision to Subrecipient.

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APPEALS PROCESS:Recent ChangesImportant Policy ChangeAs of 04/07/14, it is no longer allowed or required to submit additional documentation with a Second Appeal. The First Appeal package is the same package that will go to FEMA HQ for a Second Appeal. This is your administrative record.First Appeal must include your regulatory justification.FEMA could issue RFI on Second Appeal and provide an opportunity to submit further support, but it is not guaranteed.

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VI. Arbitration

Zein24

APPEALS PROCESS:Dispute Resolution Pilot ProgramPilot Program Arbitration Process:Request for arbitration submitted to FEMA and Recipient (TDEM) within 15 days of First Appeal decision.Subrecipient has 60 days to submit Arbitration Statement of Claim.

Arbitration Statement of Claim:Statement of Claim states the basis for the Applicants claim and the demand for relief.

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APPEALS PROCESS:Dispute Resolution Pilot ProgramArbitration Process:Administrative recordFEMA provides a copy of all the documents and materials directly or indirectly considered by the agency and relied upon in making the 1st appeal determination. Appointment of PanelAn independent review panel consisting of three Administrative Law Judges. Applicant statement of claimapplicant provides a statement clarifying the disputed aspects of the 1st appeal determination and support for their claim. FEMA responseFEMA provides a memorandum in support of its position and the name and address of its authorized representative.

ZeinSource: https://www.gpo.gov/fdsys/pkg/FR-2013-08-16/pdf/2013-19887.pdf (RC)26

APPEALS PROCESS:Dispute Resolution Pilot ProgramArbitration Process:The administrative record will constitute the whole of the evidence that may be considered in order to make a determination on the claim.Preliminary admin conferenceprovides opportunity to discuss the conduct of the hearing and answer procedural questions. Hearingpresentation of positions and witnesses, as appropriate, to an independent panel either in person or by teleconference. Panel decisionThe panel issues a written and reasoned decision that sets forth the findings of fact and conclusions of law.

ZeinSource: https://www.gpo.gov/fdsys/pkg/FR-2013-08-16/pdf/2013-19887.pdf (RC)27

VII. Dos and Donts

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APPEALS PROCESS: VISUALIZATION

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APPEALS PROCESS: VISUALIZATION

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APPEALS PROCESS:Factors to ConsiderFactors to Consider When Submitting an AppealTime CostsProject Delays Potential Legal Remedies

SarahThe Federal Government shall not be liable for any claim based upon the exercise or performance of or the failure to exercise or perform a discretionary function or duty on the part of a Federal agency or an employee of the Federal Government in carrying out the provisions of this chapter. 42 USC 5148.

See St. Tammany Parish v. FEMA, 556 F.3d 307 (5th Cir. 2009) (dismissing case brought by grantee challenging FEMAs denial of certain disaster aid based on lack of subject matter jurisdiction because decision to provide funds is a discretionary function); see also City of Laguna Niguel v. FEMA, No. 09-0198, 2009 WL 3122490, at *5 (C.D. Cal. Sept. 28, 2009) (concluding the grant or denial of an application for federal assistance is a discretionary function or duty under the Stafford Act for which the federal governments actions are not subject to judicial review pursuant to sovereign immunity).

But see South Florida Water Management Dist. v. FEMA, No. 13-80533-CIV, 2014 WL 4805856, at *10 (S.D. Fla. Sept. 18, 2014) (concluding FEMA has no discretion to recover funds and thus sovereign immunity does not apply when 42 USC 5148 applies).

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APPEALS PROCESS: VISUALIZATION

Sarah32

APPEALS PROCESS: What to Include in the Appeal?33April 13, 2016When writing any Appeal, FEMA requires that the Appeal must: Contain documented justification supporting your position from the administrative record (administrative record); Specify the monetary figure in dispute; AND Cite to the provisions in federal law or policy with which you believe the determination was inconsistent.

Sarah & ZeinTalking point - $ in question.33

APPEALS PROCESS: Statutes & Regulations34April 13, 2016What are the laws?Stafford Act, codified at 42 U.S.C. 5121 et. seq.Chapters 2 and 44 of the Code of Federal RegulationsChapter 2 Grants and AgreementsChapter 44 Emergency Management and Assistance

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APPEALS PROCESS: Statutes & Regulations35April 13, 2016Who makes these laws?The Stafford Act and amendments made to the Act, such as the Sandy Recovery Improvement Act of 2013, are passed by Congress (statutes).The rules to receive and maintain government grants are written by the Office of Management and Budget (regulation).The rules to implement the Stafford Act are written by FEMA (regulation).

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APPEALS PROCESS: PrecedencePrecedent An action or official decision that can be used as support for later actions or decisions, especially a decided case that furnishes a basis for determining later cases involving similar facts or issues.

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ZeinInsert flow chart for statute, regulation, precedence. 36

APPEALS PROCESS: FEMA Appeal DatabaseWhat is the Appeals Database?Searchable DatabaseAppeal BriefsAppeal LettersAppeal Analysishttps://www.fema.gov/appeals

Using the Appeals Database to formulating your appealDetermine what factors FEMA reviewed during decision-makingLook for regulatory citationsPrecedence; cite previous decisions

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APPEALS PROCESS: Unsuccessful AppealSecond Appeal LetterFEMA-1692-DRAlbany CountyProject Worksheet 2175Snow Removal 09/29/2008

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APPEALS PROCESS: Unsuccessful AppealApplicant used force account labor, material, and equipment for general roadway snow removal, sanding, and salting.

FEMA determined the requested snow removal costs were ineligible, because the event was not declared as a snow, or severe winter storm/snow emergency.First Appeal letter- Applicant states that FEMA misapplied 44 CFR 206.227

Applicant argues that the snow removal activities lessened immediate threats of significant additional damage to improved public or private property as eligible emergency protective measures.

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APPEALS PROCESS: Unsuccessful AppealRegional Administrator denied the appeal because the State did not request, and the President did not include, snow removal costs in the declaration.

Applicant submitted its Second Appeal, reiterating that neither the Stafford Act nor the Code of Federal Regulations requires States to specify emergency actions that it seeks reimbursement for in the Governor's request for a major disaster declaration. Applicant also asserts that FEMA approved and funded PWsfor Category B, emergency protective measures, for snow removal from roads and rights-of-way in FEMA-1665-DR-NY.

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APPEALS PROCESS: Unsuccessful AppealFEMA Recovery Directorate determines Regional Administrator's decision in the First Appeal is consistent with Public Assistance regulations and policy & denies Second Appeal.

Second Appeal denial letter references 44 CFR 206.227,Snow Assistance. States that Emergency or Major Disaster declarations based on snow or blizzard conditions will be made only for cases of record or near record snowstorms ResponseSecond Appeal denial letter references Recovery Directorate Policy Number 9523.1,Snow Assistance, which states that FEMA will provide limited assistance for snow removal only when the incident type is snow or snowfall.April 13, 201641

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APPEALS PROCESS: Unsuccessful AppealDR-1692 = New York Severe Storms and Inland and Coastal FloodingAppeal Denied. Snow assistance is not authorized for this type of declaration.

April 13, 201642

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APPEALS PROCESS: Successful AppealSecond Appeal LetterFEMA-1609-DRCity of Fort LauderdalePW02932Procurement11/25/2015

April 13, 201643

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APPEALS PROCESS: Successful AppealHurricane Wilma struck South Florida leaving substantial mixed storm debris throughout the City of Fort Lauderdale.

Applicant had a pre-existing contract with Debris Removal Contractor and subsequently initiated removal operations.To aid in the removal work, the Applicant hired 17 additional contractors under Time and Material (T&M) contracts.

April 13, 201644

Zein44

APPEALS PROCESS: Successful AppealFEMA prepared Project Worksheet (PW) 2932 and obligated an estimated $24,636,490.60 to complete the work.

U.S. Department of Homeland Securitys Office of Inspector General (OIG) found that the Applicant did not follow proper procurement procedures when awarding debris removal contracts under T&M contracts.In total, OIG recommended a disallowance of $10,325,949.00. In concurrence with OIGs findings and recommendations, FEMA deobligated $10,325,949.00 of funding from PW.April 13, 201645

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APPEALS PROCESS: Successful AppealApplicant submitted its First Appeal. Disputed $9,957,557.00 in disallowed costs.

Applicant argued:FEMA failed to prepare accurate Narrative for Scope of Work.Costs were reasonable to protect public health, safety, & welfare.T&M contract rates were reasonable under the circumstances.FEMA Region IV Regional Administrator (RA) denied the First Appeal

Regional Administrator found:Scope of Work language was not general in nature;70 hour limit for T&M contracts were greatly exceeded.

April 13, 201646

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APPEALS PROCESS: Successful AppealApplicants Second Appeal letter to FEMA argued:Debris Removal contract and T&M contracts stipulated a variety of debris removal related services.Debris removal rates were reasonable compared to rates claimed by applicants in neighboring jurisdictions.Debris removal rate pursuant to pre-disaster contract and not indicative of the higher rates typically encountered following multiple disaster events.Appeal Results: Provided sufficient documentation to demonstrate that it performed eligible debris removal within the SOW.Adequate documentation was provided to substantiate the costs incurred. Adequately demonstrated that the rate charged by its contractors were reasonable when compared to rates paid by similarly situated applicants from surrounding jurisdictionsApril 13, 201647

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APPEALS PROCESS: Successful Appeal

FEMA reimbursed $9,957,555.00.48April 13, 2016

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Best Practices49April 13, 2016

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Questions?

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THANK YOU

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