Filing a FEMA Public Assistance Appeal: The Real-Life Saga of Goldilocks and the Three Bears - JD Supra

Many of america tin callback the celebrated communicative of "Goldilocks and the Three Bears": A miss wanders into a location and tries aggregate things, rejecting them until she finds the 1 that is just right. Appealing an unfavorable FEMA Public Assistance determination tin marque an applicant consciousness overmuch the aforesaid mode arsenic Goldilocks treated the porridge. An applicant whitethorn entreaty immoderate FEMA determination related to an exertion for, oregon the proviso of, assistance nether the Public Assistance Program, but caller entreaty decisions show the value of filing appeals just right: filing with the due authorities recipient wrong the acceptable filing window.

The Law

Section 423(a) of the Stafford Act provides that immoderate determination regarding eligibility for assistance whitethorn beryllium appealed wrong 60 days aft the day connected which the applicant is notified of the grant oregon denial of assistance. By regularisation astatine 44 C.F.R. § 206.206, FEMA created a two-step entreaty process (a archetypal and a 2nd appeal) and requires applicants to record their appeals with their authorities recipients wrong the 60-day statutory deadline. This 60-day deadline begins from receipt of the determination (for events declared earlier 2022) oregon from day of transmission (for events declared successful oregon aft 2022). The regularisation further requires the authorities recipient to guardant the entreaty to FEMA wrong either 60 days from the day it received the entreaty (for events declared earlier 2022) oregon wrong 120 days from the day that FEMA issued the determination being appealed (for events declared successful and aft 2022).

FEMA strictly construes these deadlines arsenic a caller bureau last regularisation alteration warns, "If the applicant oregon the recipient bash not conscionable their respective 60-calendar time and 120-calendar time deadlines, FEMA volition contradict the appeal." (44 C.F.R. § 206.206(b).)

Don't File Too Late

Applicants indispensable record a timely appeal. A caller illustration of a denial resulting from an applicant's hold successful filing their entreaty with the authorities recipient comes successful the signifier of a 2nd entreaty determination to Seminole County. The region received a Determination Memorandum connected January 27, 2020, but did not record its archetypal entreaty until June 4, 2021 – 128 days later. FEMA denied the entreaty for the applicant's nonaccomplishment to record it wrong the 60-day deadline without considering the substance connected the merits. This 2nd entreaty determination is disposable here.

FEMA besides rejected a caller 2nd entreaty effort from the St. Thomas Bureau of Corrections for untimeliness. In that decision, the 2nd entreaty was filed connected July 12, 2022 – 119 days aft the applicant received FEMA's archetypal entreaty effect connected March 15, 2022. This 2nd entreaty determination is disposable here.

Don't Forward Too Late

An applicant has zero power implicit the authorities recipient's enactment successful forwarding its entreaty to FEMA successful a timely manner, arsenic the caller 2nd entreaty determination issued to the County of Hawaii Department of Water Supply demonstrates, but adjacent if an applicant files its entreaty with the authorities recipient successful time, its entreaty is inactive astatine hazard of being denied for untimeliness. In the Water Supply decision, the applicant filed its archetypal entreaty with the authorities recipient connected September 24, 2020, mounting the state's deadline to guardant the entreaty to FEMA arsenic November 23, 2022. Unfortunately, the authorities did not guardant the entreaty to FEMA until December 14, 2020. Even though the applicant satisfied each requirements imposed by Congress to avail itself of its Right of Appeal, and has neither immoderate power implicit nor recourse against the authorities recipient for the state's untimely action, FEMA summarily denied the entreaty without considering the merits due to the fact that of the authorities recipient's nonaccomplishment to timely guardant it to FEMA. This 2nd entreaty determination is disposable here.

File Through the State Recipient

In what appears to beryllium an effort to mitigate the hazard of the authorities recipient failing to timely guardant an entreaty to FEMA, the Butler Area School District successful Butler County, Pennsylvania, filed its entreaty straight with the FEMA Region III determination administrator. In that case, FEMA issued a Determination Memorandum that was transmitted and viewed by the applicant via Grants Manager connected December 13, 2021. Butler Schools past filed its archetypal entreaty January 26, 2022, with the FEMA determination administrator. The January 26 filing was wrong the applicant's 60-day entreaty window, but FEMA denied the entreaty due to the fact that it was filed straight to FEMA and not via the authorities recipient. At immoderate point, the entreaty was submitted to the authorities recipient, due to the fact that the authorities recipient did transmit the archetypal entreaty to the Regional head connected April 21, 2022. Presuming that Butler Schools filed the entreaty simultaneously with the authorities recipient and FEMA connected January 26, the authorities recipient's regulatory deadline to guardant the entreaty to FEMA would person expired connected Monday, March 28, 2022 (when the 60 days autumn connected a Sunday, it pushes the deadline to the adjacent concern day). However, the determination missive is not wide astir the day connected which the authorities recipient received the appeal. Ultimately, FEMA denied the entreaty due to the fact that the applicant did not comply with the entreaty filing procedures required by FEMA regulations.

The bureau besides denied this entreaty due to the fact that the outgo of school-age children's meals is not an eligible exigency protective measurement successful effect to COVID-19. The 2nd entreaty determination is disposable here.

Don't File Too Soon

FEMA volition adjacent contradict an entreaty if it is filed excessively soon. In a May 2020 2nd appeal, FEMA Headquarters reversed a archetypal entreaty denial that had taken the presumption that the applicant appealed excessively early. On archetypal appeal, FEMA recovered that the substance was not ripe for entreaty due to the fact that the appealed deobligations had not yet occurred. On 2nd appeal, FEMA acknowledged that the applicant resubmitted the archetypal entreaty aft receiving announcement of FEMA's deobligation. FEMA explained that it could "find nary proviso of statute, regulation, oregon policy, nor immoderate anterior 2nd entreaty decisions, which would prohibit oregon different bounds an applicant from filing a archetypal entreaty utilizing documents submitted anterior to the appealable enactment occurring, but that code the aforesaid substantive matter." The 2nd entreaty determination is disposable here.

Use the Right Date

As these decisions demonstrate, you can't record excessively soon, can't record excessively late, can't record straight with FEMA – you person to marque definite you record just right. But adjacent that tin beryllium tricky.

Frequently, FEMA Determination Memoranda received by applicants incorporate aggregate dates, and those dates bash not align with Grants Manager. For example, I received a caller Determination Memorandum that was signed by the preparer aft it was signed by the approving official, and was transmitted with a screen missive that was dated astir a period earlier some the physics signatures connected the screen missive and the Determination Memorandum. The dates were perplexing successful that typically, 1 would presume a papers would beryllium prepared earlier it is approved, and that the screen missive transmitting the determination to the authorities recipient and applicant would beryllium prepared and sent aft the Determination Memorandum was implicit and approved.

Meanwhile, nary of the dates connected the memo oregon screen missive matched the day the missive was transmitted to the applicant via Grants Manager. With the accrued usage of the Grants Manager strategy that day – the day the applicant viewed the determination successful Grants Manager (for events declared earlier 2022) oregon the day FEMA transmitted the determination successful Grants Manager (for events declared successful 2022 and beyond) – is present astir often cited by FEMA arsenic the commencement of the entreaty period.

Appeal the Right Decision

Applicants whitethorn besides beryllium faced with making definite they entreaty the close decision. In a caller arbitration lawsuit In the Matter of Board of Trustees of Bay Medical Center (CBCA 7418-FEMA), the applicant argued that its 60-day entreaty play commenced erstwhile the applicant received announcement of FEMA's work of backing successful the signifier of an approved Project Worksheet, portion FEMA argued that it commenced erstwhile FEMA issued its Determination Memorandum.

Had the applicant taken this substance to FEMA connected 2nd appeal, it astir apt would person lost, fixed the agency's arguments to the Civilian Board of Contract Appeals (CBCA). However, the CBCA agreed with the applicant, noting that some the Determination Memo and Project Worksheet, which the applicant received astatine antithetic times, included a announcement of entreaty rights. The arbitration determination is disposable here.

A Recommended Solution

Although astir of these deadlines and processes are contained solely successful FEMA regularisation and policy, and truthful tin beryllium changed by the bureau without statutory change, unfortunately, without FEMA's autarkic willingness to alteration its regulatory requirements oregon legislative direction, stories of rejected appeals that failed to travel the rules just right are bound to continue.

FEMA is presently taking much-needed enactment to simplify its Public Assistance procedures. Perhaps it is clip for the bureau to revisit the entreaty process to beryllium much accommodating to applicants, alternatively than marque changes that stress that the bureau volition contradict late-filed appeals. As a start, if the bureau values the authorities applicant's entreaty recommendations, it could clasp the request that applicants record appeals with the authorities but region the state's forwarding deadline. FEMA could, instead, nonstop the applicant to record its entreaty simultaneously with the recipient and FEMA. This could theoretically beryllium done easy successful the Grants Management system, which is utilized by applicants, authorities recipients, and FEMA.

This tiny process change, which tin beryllium made independently by FEMA without the request for a alteration to the Stafford Act, would let the applicant to workout its statutory close of appeal, support the workout of that close wrong the applicant's control, and let FEMA to inactive judge feedback from the authorities recipient, but not endanger the beingness of the entreaty should the authorities recipient neglect to timely stock its recommendation.

With FEMA's willingness to alteration its regulatory requirements, possibly we could halt speechmaking astir Goldilocks and determination connected to stories of gallant rescues and flight from fiscal distress caused by disaster.