The document provides an overview of the FEMA Public Assistance appeals process, including: - An introduction to the presenters and an outline of the topics to be covered which include the appeals process, first appeals, second appeals, arbitration, dos and don'ts, and a question period. - A definition of key terms like appeal and administrative review, an explanation of the purpose and participants of the appeals process, as well as what determinations can be appealed. - A detailed breakdown of the first and second appeal processes, including who is involved, deadlines, required documentation, and potential outcomes. - An overview of the now expired Dispute Resolution Pilot Program which had allowed for binding arbitration in

1. TDEM CONFERENCE 2016
F E M A P A : N A V I G A T I N G T H E A P P E A L S
P R O C E S S

2. I . I n t r o d u c t i o n s

3. P r e s e n t e r s
Zein Jivani
Attorney at Law
Sarah Lawrence
Senior Consultant
Roman Castillo
Senior Consultant

4. P r e s e n t a t i o n O v e r v i e w
Today’s Presentation:
 General Overview
 Appeals Process
 First Appeals
 Second Appeals
 Arbitration
 Do’s and Don’ts
 Questions

5. I I . O v e r v i e w

6. A P P E A L S P R O C E S S :
D e f i n i t i o n s
Appeal – A proceeding undertaken to have a decision reconsidered by a higher
authority, especially the submission of a lower court’s or agency’s 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 Agency’s
Public Assistance Program.

7. A P P E A L S P R O C E S S :
P u r p o s e o f A p p e a l
Appeals Process
• The 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.

8. A P P E A L S P R O C E S S :
W h o M a y S u b m i t a n A p p e a l ?
The Public Assistance Program
appeal process is available to:
• Applicants
• Recipients
• Subrecipients

9. A P P E A L S P R O C E S S :
W h a t M a y I A p p e a l ?
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. § 5189a
 44 C.F.R. § § 206.206

10. A P P E A L S P R O C E S S :
H o w M a y I A p p e a l ?
Subrecipients must submit a written appeal to the Recipient (TDEM)
within 60 days of receiving written notification of FEMA’s 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 14, 2016

11. A P P E A L S P R O C E S S :
W h a t M a y I A p p e a l ?
Request for Public Assistance
An Applicant’s first need to submit an Appeal may arise immediately following FEMA’s
rejection of a Request for Public Assistance.
10April 14, 2016

12. I I I . P r o c e s s

13. A P P E A L S P R O C E S S :
A p p e a l s – S o m e t i m e s U n a v o i d a b l e
The goal is to avoid Appeals altogether, but sometimes, Appeals are
necessary and unavoidable.
Common Appeals
 Net Small Project Overrun appeal
 Procurement (Emergency Procurements)
 Reasonableness (Costs)
 Cost Estimate/Scope of Work (PW writing)
12April 14, 2016

14. A P P E A L S P R O C E S S :
A d m i n i s t r a t i v e R e v i e w
You are entitled to two opportunities for Administrative Review:
• FEMA Regional Administrator - 1st Appeal; and if necessary
• Assistant Administrator for the Recovery Directorate at FEMA HQ - 2nd Appeal

15. A P P E A L S P R O C E S S :
D i s p u t e R e s o l u t i o n P i l o t P r o g r a m
In 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.

16. A P P E A L S P R O C E S S :
D i s p u t e R e s o l u t i o n P i l o t P r o g r a m
Arbitration Pilot Program :
 Was available to Applicants that received a 1st Appeal Decision
 Amount in dispute ≥ $1,031,000.00
 Assistance pertains to disaster declaration after October 30, 2012.

17. I V. F i r s t A p p e a l

18. A P P E A L S P R O C E S S :
F i r s t A p p e a l
First Appeal Process:
• Filed by a Subrecipient with FEMA
Regional Administration.
• For Texas Subrecipients, the FEMA
Regional Administration is Region VI.
• Region VI oversees federal emergency
management for Arkansas, Louisiana,
New Mexico, Oklahoma, Texas and 68
federally recognized Tribal Nations.

19. A P P E A L S P R O C E S S :
W h a t H a p p e n s w i t h M y A p p e a l ?
FEMA reviews Appeal and, within 90 days of receiving it, takes one of two
actions:
• Provides its final written decision to the Recipient; OR
• Requests additional information specifying the date FEMA must receive the
information (usually 30 days).
• 44 CFR § 206.206(c)(3)
18April 14, 2016

20. A P P E A L S P R O C E S S :
W h a t H a p p e n s w i t h M y A p p e a l ?
First Appeal Process
1. Subrecipient disputes a FEMA Decision;
2. Subrecipient submits written Appeal to TDEM within 60 days of receipt of adverse
decision;
3. TDEM forwards Appeal, supporting documentation, and TDEM’s recommendations to
FEMA within 60 days of receipt of subrecipient’s appeal;
4. FEMA creates an administrative record for the Appeal;
5. FEMA may issue a Request for Information (30 day response time);
6. Regional Administrator issues a Decision to TDEM within 90 days of receiving all
information necessary to make a decision;
7. TDEM transmits Decision to Subrecipient including information pertaining to Second
Appeal rights.
19April 14, 2016

21. V. S e c o n d A p p e a l

22. A P P E A L S P R O C E S S :
S e c o n d A p p e a l
Second Appeal:
 2nd Appeal filed by a Subrecipient
following FEMA Regional
Administration’s First Appeal decision.
 2nd Appeal is evaluated and decided by
FEMA’s Assistant Administrator for the
Recovery Directorate.
 Mr. Alex Amparo is the Assistant
Administrator of the Recovery
Directorate at the Federal Emergency
Management Agency.

23. A P P E A L S P R O C E S S :
W h a t H a p p e n s w i t h M y A p p e a l ?
Second Appeal Process
1. Subrecipient disputes FEMA First Appeal Decision;
2. Subrecipient submits written Second Appeal to TDEM within 60 days of receipt of the
First Appeal decision;
3. TDEM forwards the Second Appeal to the Regional Administrator;
4. The Regional Administrator forwards the Second Appeal to FEMA headquarters for
review and decision;
5. FEMA may issue a Request for Information (30 day response time);
6. Assistant Administrator issues a Decision to TDEM within 90 days of receiving all
information necessary to make a decision;
7. TDEM transmits Decision to Subrecipient.
22April 14, 2016

24. A P P E A L S P R O C E S S :
R e c e n t C h a n g e s
Important Policy Change
• As 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.

25. V I . A r b i t r a t i o n

26. A P P E A L S P R O C E S S :
D i s p u t e R e s o l u t i o n P i l o t P r o g r a m
Pilot Program Arbitration Process:
1. Request for arbitration submitted to FEMA and Recipient (TDEM) within 15 days of
First Appeal decision.
2. Subrecipient has 60 days to submit Arbitration Statement of Claim.
Arbitration Statement of Claim:
Statement of Claim states the basis for the Applicant’s
claim and the demand for relief.

27. A P P E A L S P R O C E S S :
D i s p u t e R e s o l u t i o n P i l o t P r o g r a m
Arbitration Process:
3. Administrative record—FEMA 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.
4. Appointment of Panel—An independent review panel consisting of three
Administrative Law Judges. Applicant statement of claim—applicant provides a
statement clarifying the disputed aspects of the 1st appeal determination and support
for their claim.
5. FEMA response—FEMA provides a memorandum in support of its position and the
name and address of its authorized representative.

28. A P P E A L S P R O C E S S :
D i s p u t e R e s o l u t i o n P i l o t P r o g r a m
Arbitration Process:
6. The administrative record will constitute the whole of the evidence that may be
considered in order to make a determination on the claim.
7. Preliminary admin conference—provides opportunity to discuss the conduct of the
hearing and answer procedural questions.
8. Hearing—presentation of positions and witnesses, as appropriate, to an independent
panel either in person or by teleconference.
9. Panel decision—The panel issues a written and reasoned decision that sets forth the
findings of fact and conclusions of law.

29. V I I . D o ’ s a n d D o n ’ t s

30. A P P E A L S
P R O C E S S :
V I S U A L I Z A T I O N
Debris Removal Emergency Protective
Measures
Permanent Work
Categories of Work Appeals

31. A P P E A L S
P R O C E S S :
V I S U A L I Z A T I O N
Most Common Appeal Reasons

32. A P P E A L S P R O C E S S :
F a c t o r s t o C o n s i d e r
Factors to Consider When Submitting an Appeal
• Time
• Costs
• Project Delays
• Potential Legal Remedies

33. A P P E A L S
P R O C E S S :
V I S U A L I Z A T I O N
0
100
200
300
400
500
600
Denied Granted Partially Granted Rescinded Under Review
Total

34. A P P E A L S P R O C E S S :
W h a t t o I n c l u d e i n t h e A p p e a l ?
33April 14, 2016
When 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.

35. A P P E A L S P R O C E S S :
S t a t u t e s & R e g u l a t i o n s
34April 14, 2016
What are the laws?
• Stafford Act, codified at 42 U.S.C. §§ 5121 et. seq.
• Chapters 2 and 44 of the Code of Federal Regulations
• Chapter 2 – Grants and Agreements
• Chapter 44 – Emergency Management and Assistance

36. A P P E A L S P R O C E S S :
S t a t u t e s & R e g u l a t i o n s
35April 14, 2016
Who 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).

37. A P P E A L S P R O C E S S :
P r e c e d e n c e
Precedent – 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.
36April 14, 2016

38. A P P E A L S P R O C E S S :
F E M A A p p e a l D a t a b a s e
What is the Appeals Database?
• Searchable Database
• Appeal Briefs
• Appeal Letters
• Appeal Analysis
• https://www.fema.gov/appeals
Using the Appeals Database to
formulating your appeal
• Determine what factors FEMA
reviewed during decision-making
• Look for regulatory citations
• Precedence; cite previous decisions
April 14, 2016 37

39. A P P E A L S P R O C E S S :
U n s u c c e s s f u l A p p e a l
Second Appeal Letter
FEMA-1692-DR
• Albany County
• Project Worksheet 2175
• Snow Removal
• 09/29/2008
38April 14, 2016

40. A P P E A L S P R O C E S S :
U n s u c c e s s f u l A p p e a l
1. Applicant used force account labor,
material, and equipment for general
roadway snow removal, sanding, and
salting.
2. FEMA determined the requested snow
removal costs were ineligible, because
the event was not declared as a snow,
or severe winter storm/snow
emergency.
3. First Appeal letter- Applicant states
that FEMA misapplied 44 CFR
§206.227
4. 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.
April 14, 2016 39

41. A P P E A L S P R O C E S S :
U n s u c c e s s f u l A p p e a l
5. Regional Administrator denied the
appeal because the State did not
request, and the President did not
include, snow removal costs in the
declaration.
6. 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.
7. Applicant also asserts that FEMA
approved and funded PWs
for Category B, emergency protective
measures, for snow removal from
roads and rights-of-way in FEMA-
1665-DR-NY.
April 14, 2016 40

42. A P P E A L S P R O C E S S :
U n s u c c e s s f u l A p p e a l
8. FEMA Recovery Directorate
determines Regional Administrator's
decision in the First Appeal is
consistent with Public Assistance
regulations and policy & denies
Second Appeal.
9. 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…”Response
10. Second 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 14, 2016 41

43. A P P E A L S P R O C E S S :
U n s u c c e s s f u l A p p e a l
11. DR-1692 = New York Severe Storms
and Inland and Coastal Flooding
12. Appeal Denied. Snow assistance is
not authorized for this type of
declaration.
April 14, 2016 42

44. A P P E A L S P R O C E S S :
S u c c e s s f u l A p p e a l
Second Appeal Letter
FEMA-1609-DR
• City of Fort Lauderdale
• PW02932
• Procurement
• 11/25/2015
April 14, 2016 43

45. A P P E A L S P R O C E S S :
S u c c e s s f u l A p p e a l
1. Hurricane Wilma struck South Florida
leaving substantial mixed storm debris
throughout the City of Fort
Lauderdale.
2. Applicant had a pre-existing contract
with Debris Removal Contractor and
subsequently initiated removal
operations.
3. To aid in the removal work, the
Applicant hired 17 additional
contractors under Time and Material
(T&M) contracts.
April 14, 2016 44

46. A P P E A L S P R O C E S S :
S u c c e s s f u l A p p e a l
4. FEMA prepared Project Worksheet
(PW) 2932 and obligated an estimated
$24,636,490.60 to complete the work.
5. U.S. Department of Homeland
Security’s Office of Inspector General
(OIG) found that the Applicant did not
follow proper procurement procedures
when awarding debris removal
contracts under T&M contracts.
6. In total, OIG recommended a
disallowance of $10,325,949.00. In
concurrence with OIG’s findings and
recommendations, FEMA deobligated
$10,325,949.00 of funding from PW.
April 14, 2016 45

47. A P P E A L S P R O C E S S :
S u c c e s s f u l A p p e a l
7. Applicant submitted its First Appeal.
Disputed $9,957,557.00 in disallowed
costs.
8. Applicant argued:
A. FEMA failed to prepare accurate
‘Narrative’ for Scope of Work.
B. Costs were reasonable to protect
public health, safety, & welfare.
C. T&M contract rates were
reasonable under the
circumstances.
9. FEMA Region IV Regional
Administrator (RA) denied the First
Appeal
10. Regional Administrator found:
A. Scope of Work language was not
general in nature;
B. 70 hour limit for T&M contracts were
greatly exceeded.
April 14, 2016 46

48. A P P E A L S P R O C E S S :
S u c c e s s f u l A p p e a l
11. Applicant’s Second Appeal letter to
FEMA argued:
A. Debris Removal contract and T&M
contracts stipulated a variety of
debris removal related services.
B. Debris removal rates were
reasonable compared to rates
claimed by applicants in
neighboring jurisdictions.
C. Debris removal rate pursuant to pre-
disaster contract and not indicative
of the higher rates typically
encountered following multiple
disaster events.
12. Appeal Results:
A. Provided sufficient documentation to
demonstrate that it performed
eligible debris removal within the
SOW.
B. Adequate documentation was
provided to substantiate the costs
incurred.
C. Adequately demonstrated that the
rate charged by its contractors were
reasonable when compared to rates
paid by similarly situated applicants
from surrounding jurisdictions
April 14, 2016 47

49. A P P E A L S
P R O C E S S :
S u c c e s s f u l
A p p e a l
13. FEMA reimbursed
$9,957,555.00.
48April 14, 2016

50. B e s t P r a c t i c e s
Communication
Supporting
Documentation
Arbitration
Time
Limitations
Cite
Regs.
Precedence
49April 14, 2016

51. Q u e s t i o n s ?

52. T H A N K Y O U