fema claims post-katrina attorney ranie thompson equal justice works katrina legal fellows new...

FEMA Claims Post-Katrina

Attorney Ranie Thompson Equal Justice Works Katrina Legal Fellows

New Orleans Legal Assistance(An Office of Southeast Louisiana Legal Services)

Introduction

Contact Information:New Orleans Legal Assistance (NOLAC)

An Office of Southeast La. Legal Services

1010 Common Street, Suite 1400A

New Orleans, LA 70112

Attorney Ranie T. Thompson

504-529-1000 ext. 254

FEMA and Disaster Assistance Program

Law

Individual and Household Program

Other Needs Assistance

Governing authorities for FEMA

Robert T. Stafford Act 42 USC 5174 & 44 CFR 206 Subpart D

(a)§408 Robert T. Stafford Act has been adopted and implemented by FEMA as part of the regulations governing disaster assistance following federally declared disasters.

(b)44 CFR 206.110 - 119 are the regulations governing FEMA. Subpart D deals with Federal Assistance to Individuals and Households.

(c)Internal policies developed by FEMA. Agency administration continuously develops new and change existing policies throughout the course of the provision of services. Some can be found on the agency website and other advocacy-based sites that monitor FEMA. Most are not published and we only learned from them via helpline workers.

TIPS FOR THE ADVOCATE

KNOW THE LAW AND LINGO Get familiar with regulations and policies. FEMA workers were poorly trained. Most of what happens high up doesn’t get to

lower level workers and when it does, there’s still problems with properly applying.

EX. Termination without notice because of alleged recoupment/overpayment.

FEMA workers typically have no legal training and very little training by the agency regarding the law and policies relative to disaster assistance.

FEMA’s Purpose

To provide financial assistance and direct assistance when necessary,

to ELIGIBLE individuals and households who as a direct result of a major disaster or emergency,

have UNINSURED or UNDERINSURED, necessary expenses and serious needs and

are unable to meet such expenses or needs through other means.

FEMA Programs

Individual and Household Program (IHP) provides

financial assistance and/or direct assistance to eligible individuals and households as a direct result of a major disaster or

emergency, have uninsured or under-insured, necessary expenses and serious needs, and are unable to meet such expenses or needs

through other means.

Tips for the Advocate

Reminder: The purpose of the agency and the assistance is to meet the needs of the individual and/or household brought on by the disaster.

It is NOT a program to make the applicant whole or to improve conditions that existed before the disaster.

Don’t rely on FEMA to treat each applicant the same even if they are neighbors who may have lived right next door to each other. Look at each situation and use the law to support the client’s case to get the best result.

REGISTRATION & ELIGIBILITY

When to apply?

Who can get help?

Registration Deadline – 206.112

60 days after federally declared disaster Can be extended by regional director or his

designee Done for Katrina

Late registrations accepted with good cause shown 206.112(c) suitable documentation and

justification for delay in registration

Who’s eligible under IHP? 44 CFR 206.113

Homeowners and Renters (look for Head of Household) Leaseholders

Persons whose primary residence is destroyed, uninhabitable or inaccessible

Renters whose primary residence is no longer available as a result of the disaster. BEWARE: pre-disaster landlord may have been contacted by

FEMA and may not have answered honestly about the availability of the property.

Has led to denials of rental/housing assistance and other needs assistance

Client asked for name of company that picked up property off curb where landlord placed it. Denied her personal property.

Client denied assistance b/c landlord refused to open gate for FEMA inspectors to look over the property

IHP Eligibility (cont’d)

Insured persons who are waiting on payment on claims filed with insurance companies. BEWARE: applicant WILL have to pay money

back to FEMA once he receives insurance proceeds.

Uninsured renters and homeowners Underinsured homeowners and renters

Insurance proceeds are insufficient to cover loss If insurance paid maximum that FEMA would pay,

then FEMA deems it sufficient.

Who might be ineligible?

Persons displaced from pre-disaster home for reason other than disaster

Persons displaced from other than their pre-disaster primary residence

Persons with adequate rent-free housing alternatives Persons with secondary or vacation home within reasonable

commuting distance to disaster area Persons who own rental property that meets their temporary

housing needs Persons in shared household situation and pre-disaster

roommates Persons who failed to maintain flood insurance on property as a

requirement of receiving previous Federal Disaster assistanceFlood Bar rule

Renters without “proof” of Landlord/Tenant Relationship

Tips for Advocate

Don’t rely on FEMA findings as correct. It’s important to investigate to determine the

validity of their findings. Ask for proof. Ex: Orleans Parish Sheriff’s Deputies who

registered while on duty at time of disaster and FEMA worker listed Orleans Parish Prison as his primary residence.

DISASTER ASSISTANCE

What’s available?

What assistance is available?

Expedited assistance $2,000 for Katrina and Rita to meet immediate basic needs of applicants Late Registration for Katrina: probably not available

Transitional housing assistance (i.e. rental assistance) $2,358 for Katrina and Rita purposes Money must be used for rental assistance BUT: if used for another purpose, applicants should

complete the Declaration of Need and Use of Funds form when seeking additional rental assistance from FEMA. (www.femaanswers.org)

Don’t count of FEMA explaining the purpose of the money being given. Many applicants will simply find a large sum of money has been deposited into their bank accounts and have no explanation.

Types of assistance cont’d

Rental/Housing Assistance Direct assistance to applicant Payment to landlords Housing Repairs (up to $5,200) Housing Replacement (up to $10,500) Temporary Housing – FEMA trailers

Other Needs Assistance (ONA)

Other Needs Assistance 44 CFR 206.119

Expenses other than housing/rental assistance needs

Applicants must apply for an SBA disaster loan and either be Denied, or Show that the money received doesn’t meet their

needs arising from the disaster. NOT NEEDED FOR HOUSING PROGRAM SBA can do “desk denial” for folks below income level

set by FEMA and SBA. Thus, this requirement was waived for a lot of people.

ONA covers

Medical, dental, and funeral Transportation Relocation Other expenses Personal property assistance

Award amounts based on FEMA policy. See press release following Katrina.

Beware of the roommate/shared household situations

Note: medical/dental/funeral must be related to Katrina (or Rita).

Types of Assistance continued

Crisis Counseling Legal Services Disaster Unemployment Assistance Disaster Food Stamps


Applications submitted will be screened for eligibility for all available assistance EVEN IF APPLICANT DIDN’T ASK FOR IT!

$26,200 cap on DIRECT ASSISTANCE (Katrina and Rita) REMINDER: The assistance is given for disaster related losses

only. (important for ONA) KEEP ALL RECEIPTS!! Applicants will have to submit these to

show exhaustion of funds before being able to get additional rental assistance and to defend against overpayments claims.

KEEP A RECORD. FEMA conducts an audit and may ask applicants to repay money received because FEMA believes they were ineligible.

The Appeals Process

Making your case

Advocacy Strategies

Determine the Issues (use a screening form)

Determine if special factor such as disability, age or language barrier may affect their FEMA case (may have ADA or other claim)

Gather the Documents Signed Releases (at least 3 originals) (see 44 CFR 206.110(j)(1)(i))

(see sample release) Copies of FEMA papers (incl. application) Copies of other relevant papers Photos if available (double prints)

What you need from applicant?

Demographics SSN Date of birth Damaged property address Current Mailing address – as listed in FEMA’s records Current phone number(s) – including what FEMA has Insurance information (if applicable)

FEMA File/Documents Request must be written. Fax okay.

Timeline

Written appeal must be postmarked/faxed within 60 days of decision letter Louisiana only has written appeals Signed by applicant or by Authorized Representative Enclose signed original release Include the FEMA case number and disaster number on every page

FEMA uses codes in denial letters. See FEMA’s applicant guide for an explanation of denial codes

Fax to (800) 827-8112, Attention: FEMA – Individuals and Households Program (MAIL original copies)

FEMA should respond in writing within 90 days FEMA Decision is Final

Give ‘em everything you’ve got upfront. This might be your only shot at convincing them.

Regulations say the decision is final, but appeal again if there’s merit.


FEMA’s notices generally provide basic information about applicants right to appeal. (See sample letters)

Call and talk with helpline workers – gently argue your case. You might get lucky.

Notices are generally insufficient. FILE APPEALS ON TIME. Appeal even if untimely.

FEMA is not always on its game. WARNING: Don’t rely on agency general

incompetence because there has been occasion that appeals were denied as untimely.

Scenario 1: Deadline has passed – No appeal filed Possible consequences

FEMA could reject the appeal, but we don’t believe they will.

Note: It has been done Investigate

Client’s story Call FEMA helpline for details.

If meritorious, appeal. Include statement explaining why it’s beyond the

deadline. Judgment call as to whether or not to file (might want

to wait on FEMA file). Appeal is already late so just file it as quickly as possible.

Scenario 2: Appeal filed

Get copy of notice of denial of assistance sent to applicant.

Get copy of appeal, if available. Determine status of appeal. Supplemental appeal (no decision)

b/c FEMA takes so long to rule eventhough the regs say 60 days, it may be possible to supplement applicant’s pro se appeal if there’s additional meritorious arguments to be made and/or supporting evidence to defend against the claim.

BEWARE: This might result in further delay of your client’s case b/c FEMA scans things in and starts over with each new piece of information that comes in on the case. They’re not organized.

Scenario 3: Decision issued

Get copy of notice of decision. Determine grounds to seek reconsideration. If meritorious, move forward with appeal as

previously described. 60 day rule applies. Alternative – go to court under federal Administrative

Procedures Act. Due to long statute of limitations, nothing lost by

appealing again before filing in court unless FEMA says the information added in the late appeal was missing in the first and so was properly denied.

Common Issues on Appeal

Split/Shared HouseholdsDuplication of Benefits

Eligibility for Rental Assistance – Continued Need for Assistance

“Shared Household” Problem for Low-Income Families FEMA typically pays for housing assistance to only

one “household” even if they have split up FEMA defines a “household” as all people who lived

together in the pre-disaster residence or are likely to live together after

A person may be denied housing if another previous household member has already applied or received FEMA, even if they don’t live together now

Example: A woman with two children lived with her sister and husband in New Orleans. If one family fled to Louisiana and one to Texas, only the first to apply may get help—all other household members can be denied

“Shared Households” Problem for Low- Income cont’d FEMA Regional Director has authority to grant

benefits to more than one person in a household (HH) if the “nature” or “size” of the household requires it.

FEMA relaxed this rule for Katrina (see 9/19/05

FEMA memo allowing waiver of shared HH rule in unfair circumstances, and 11/26/05 FEMA press release: “Extended Families Living Together May Be Eligible for FEMA Disaster Assistance”)

Shared Households – Cont’d

Attempt informal resolution with FEMA (call the HELP Line and request separate assistance for applicant, explaining their circumstances, and mention FEMA press release and regulations)

If necessary, appeal (see sample appeal letters)

“Withdrawal”/Lack of Contact

FEMA sends notice of denial of assistance for lack of contact or “withdrawal” or lack of response (applicant misses attempted FEMA contact, or FEMA error)

Attempt informal resolution with FEMA (make sure FEMA has client’s current contact info and that still needs FEMA assistance, and explain any circumstances that interfered with FEMA communications)

If appeal necessary, ask FEMA for proof of when attempted contact made to applicant

Inspections/Access/ “Insufficient Damages” Issues Some tenants have either been evicted or have

moved out of pre-disaster rentals

Landlords often don’t cooperate with FEMA inspections

Tenants can’t easily prove damages for FEMA assistance

Inspections/Lack of Access– Cont’d

Attempt informal resolution with FEMA Let FEMA know circumstances that interfere with FEMA access Provide pictures (damaged dwelling and personal property) if

available Ask for exterior inspection (e.g., blue roof shows likely wind and

rain damage of interior) Try to get statements or affidavits from landlord, neighbors and

family/friends about damages Ask for related inspection reports (e.g., landlord or tenants in

same building)

If necessary, appeal.

Flood Insurance Requirement

FEMA’s Flood Insurance: “One Bite at the Apple”

An individual can be denied help from FEMA if he/she: Lived in a flood zone; and Got FEMA help before in another disaster; and Was told to buy flood insurance; and Does not carry flood insurance now.

Many applicants don’t recall receipt of FEMA funds or notice of flood insurance requirement; South La. has had many prior declared disasters.

Flood Insurance Requirement – Cont’d Attempt informal resolution with FEMA (explain any

circumstances should absolve applicant from bar – e.g., mental disability, no actual notice)

If appeal necessary, ask FEMA for proof of when and how insurance requirement notice made to applicant

Current owner or household member not same as individual/household member who received prior assistance. (May have to sue FEMA on this issue) – See SLLS suit: Morris v. FEMA, et al.

Duplication of Benefits

Find out basis of duplication and what assistance is denied

If rental and looks like two members from single household Argue your client was head of household of one (1)

Get tax docs if available to support this

Use SHARED HOUSEHOLD policy if it fits (See handout)

Same strategy for Recoupment/Recovery purposes Personal property (no access to proceeds)

FEMA press release re level of flood water = amount of award Satellite mapping results demonstrating damage to client property Money received by other household member not shared with client Renters: Argue uninsured if had no renters insurance Shared households member: Argue no access to insurance proceeds received

by homeowner

Recoupment(Overpayments)

Split/Shared HouseholdsDuplication of Benefits

Eligibility for Rental AssistanceOwnership

Primary ResidencyOccupancy

The law: 44 CFR 206.116

Recovery of Funds…

(a)The applicant must agree to repay to FEMA (when funds are provided by FEMA) and/or the State (when funds are provided by the State) from insurance proceeds or recoveries from any other source an amount equivalent to the value of the assistance provided. In no event must the amount repaid to FEMA and/or the State exceed the amount that the applicant recovers from insurance or any other source.

(b)An applicant must return funds to FEMA and/or the State

(when funds are provided by the State) when FEMA and/or the State determines that the assistance was provided erroneously, that the applicant spent the funds inappropriately, or that the applicant obtained the assistance through fraudulent means.

Basis for Recoupment Duplication of benefits (44 C.F.R.§206.110)

with household member; with Head of Household With insured homeowner Single Household Rule: 44 C.F.R. §206.117

Duplication of benefits with insurance Damaged dwelling was not primary residence Failure to prove occupancy Flood insurance purchase requirement (44 C.F.R.§206.110(k))

we believe there are defenses for people who purchased the property without knowledge of prior flooding if nothing in the property transfer documents sets out a requirement to maintain the insurance

how much was previous award? May be a defense if it was less than subsequent award post-Katrina. Regulation states that must maintain insurance for at least the assistance amount. 44 CFR 206.110(k)(3)(i)

Overpayment (personal property) Replacement housing to a renter

Tip for Advocate

Investigate the basis given by FEMA to determine if there is a defense.

Likely defendants

Persons in shared household situation pre-disaster and post-disaster

Pre-disaster roommates Persons living in homes owned by deceased parents

where no succession or probate of will has been done Renters without “proof” of Landlord/Tenant Relationship Major children who lived in home with parents and

contributed to maintenance of household and expenses Persons deemed eligible for assistance as head of

household by FEMA workers shortly after the storm Mentally disabled persons

What monies are being recouped?

Personal property assistance primarily those who got $10,391.51 Common thread: shared household situations

Expedited assistance $2,000

Transitional housing assistance $2,358 Use the Declaration of Need and Use of Funds form

that allows this money to be used for purpose other than rental assistance

See www.femaanswers.org Transportation Rental assistance

Appeal: Timeline, interests, costs, and penalties 30 days – pay now, talk later 60 days – deadline to appeal:

POSTMARKED 90 days – time frame to set up repayment

plan 120 days – turned over to US Treasury

Department

Appeals (cont’d)

Payment plans can be set up through the Disaster Finance Center DFC will try to get maximum amount for

monthly payment Argue for reduced payment pending appeal

Success with as little as $20/mo

Rights of defendants/claimants

Appeal Pay back and appeal Review evidence used to reach decision 44 CFR 11

Hardship Waiver/Compromise – 11.50 Suspension/Termination of Debt – 11.51

The Appeal Letter: eligibility defense Insurance: underinsured; uninsured (e.g., renters)

How much can FEMA collect? Get copies of insurance settlement to determine amount

and type of coverage Rental assistance

Describe pre-disaster living Describe post-disaster living Make shared household argument based on FEMA policy Money received by other household member not shared

with client Expedited Assistance Transitional housing assistance Transportation

The Appeal Letter: what to include

Declaration of client (basic testimony) Declaration of other supporters Copies of documentation to support position

(if necessary and available)

Waivers, Compromises, Terminations

When it looks like your client must repay the money…

When Applicant looks ineligible Discuss applicant’s means of repaying the money.

Current expenses Debt Assets

Contact Disaster Finance Center Compromise

FEMA wants 80% but work with whatever applicant has to negotiate resolution

Voluntary Payments Request a hardship waiver 44 CFR 11.50

Briefly outline why it would be a hardship to repay money. Social security benefits protected up to $750/month (31 USC 3716(c)(3)

(a)(ii) or 31 CFR 285.4(e)(1)(ii) Unlikely full debt will be collected in a reasonable time Prepare applicant for what he’ll need to submit to support the request.

See sample packet received from FEMA.

RESOURCES

Where can you find help?

Internet and Phone Numbers

www.fema.gov www.femaanswers.org www.katrinalegalaid.org www.redcross.org/services/disaster 1-800-621-3362 1-800-462-7585 (TTY)