Transcript Storm-Related Legal Services Relief

Sandy Disaster Assistance:
FEMA Appeals
Adam Strochak
Adam Bookman
Weil, Gotshal & Manges LLP
December 2012
Overview of FEMA Disaster Assistance
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Federal disaster response is governed by the Robert T. Stafford
Disaster Relief and Emergency Assistance Act (42 U.S.C. § 5121
et seq.)
Administered by the Federal Emergency Management Agency
Multiple programs, two general models:
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Federal support for state disaster response and recovery
Direct federal payments to individuals and families
Examples:
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Hotel vouchers – FEMA Transitional Shelter Assistance program
(state-federal partnership § 403)
Payment to states for repair, restoration and replacement of damaged
facilities (must be funded by Congress – § 406)
Direct assistance to individuals and families (§ 408)
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Assistance to Individuals and Families
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Authority
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Stafford Act § 408, 42 U.S.C. § 5174
44 C.F.R. §§ 206.110 to 206.120
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Authorizes FEMA to activate various forms of assistance in
response to a disaster
FEMA has discretion to choose what assistance it makes
available to any disaster
Options under FEMA’s Individuals and Households Program:
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Temporary housing assistance – direct assistance and financial assistance
Repair – return dwellings to safe and sanitary condition
Replacement of private residences
Permanent or semi-permanent construction of housing
Medical, dental, and funeral expenses
Personal property replacement, transportation, moving and storage
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Assistance to Individuals and Families (cont’d)
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Applicant’s residence at time of the disaster must be in a county
declared a federal disaster area:
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New York: Bronx, Kings (Brooklyn), Nassau, New York, Orange,
Putnam, Richmond (Staten Island), Rockland, Suffolk, Sullivan,
Ulster, Westchester, and Queens;
New Jersey: all counties
How to Apply:
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Online: www.DisasterAssistance.gov (preferred)
Phone: (800) 621-3362
Visit a FEMA Disaster Recovery Site
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Assistance to Individuals and Families (cont’d)
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Assistance is intended to meet specified short-term needs not
covered by insurance or other government benefit programs
Individuals and Households Program is not intended to restore
people to pre-storm conditions
General requirements
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Must be related to primary residence
Covers personal residential costs, not business costs
FEMA awards are determined based on a household
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FEMA presumes that individuals living together constitute a single
household, but applicants can demonstrate that they live separately
Financial assistance is capped at $31,900 per household
Assistance may be available through SBA loans (applying to SBA
is not required to qualify for housing assistance, but is required for
“other needs” assistance)
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FEMA Housing Assistance
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Direct Assistance – temporary housing provided by FEMA (other
than hotel vouchers, which is a separate program)
Financial Assistance – payments to individuals and households
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Rental Assistance
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Initial grant of rental assistance generally covers two months calculated at
125 percent of existing HUD Fair Market Rates
Recertification process for additional grants of rental assistance (44
C.F.R. § 206.114)
Repair and replacement of essential household items not covered by
insurance to make damaged dwellings safe, sanitary and functional
Personal property replacement – covers cost of replacement
necessities, not all property damaged by the storm
Moving and storage expenses
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Recoupment of Assistance
44 C.F.R. § 206.116
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Applicants must return funds to FEMA when FEMA determines
that:
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the assistance was provided erroneously;
applicant spent the funds inappropriately; or
applicant obtained the assistance through fraudulent means.
Reasons for recoupment include:
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Duplication of benefits within a single household
Duplication of benefits with insurance
Damaged dwelling not primary residence
Failure to maintain flood insurance
Overpayment of assistance
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FEMA – Appeal Process
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FEMA decision arrives by mail
Use FEMA Applicant’s Guide to decipher ineligibility codes
Applicant or counsel should call and speak with a caseworker to try and
get the decision changed
If a call is unsuccessful, the only appeal available is administrative and is
processed by FEMA employees
Appeal process is set forth at 44 C.F.R. § 206.115
￭ No right to a hearing
￭ No prohibition on ex parte contacts; no rules of evidence; hearsay
permissible
￭ Paper submission only, usually no opportunity to speak with decision
maker
￭ No judicial review
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FEMA – Appealable Determinations
44 C.F.R. § 206.115(a)
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Eligibility for assistance
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Amount or type of assistance (including recoupment)
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Cancellation of an application
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Rejection of a late application
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Denial of continued assistance
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Intent to collect rent on housing provided by FEMA
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“Any other eligibility-related decision”
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Appeal Requirements
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Must explain reason(s) for the appeal in writing - 44 C.F.R. §
206.115(b)
Must be signed by applicant or authorized representative - 44
C.F.R. § 206.115(b)
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Authorized representatives must use special FEMA form
Must be sent within 60 days of FEMA’s decision mailing date - 44
C.F.R. § 206.115(a).
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The deadline is not jurisdictional like a federal court appeal, so file
even if late. FEMA may consider late appeals
Lawyers assisting applicants can request the applicant’s complete file
from FEMA
￭ Requires a signed release meeting FEMA requirements
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Effective Appeal Strategies
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Include all relevant evidence you want considered, in the best
form available
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Examples: affidavits, declarations or other statements, receipts, any
other type of documentation
Include copy of full file (or selected portions if sufficient)
Document any special medical needs or any allegations of illegal
discrimination
Include FEMA registration number on every page submitted
Counsel clients to keep records – all correspondence to/from
FEMA, log of phone contacts, receipts for rent and other
expenses
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Typical Appeal Issues
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Shared households
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Extended families living together
Undocumented subletting
Families divided by storm
Divorce/separation pre- or post-storm
Recertification requirements – continued need for assistance
Insurance requirements and denials of coverage – time lag
Partial denials
No flood insurance – required only if applicant received
assistance from a prior disaster
Damaged home not primary residence
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