Weil, Gotshal & Manges LLP Sandy Disaster Assistance: FEMA Appeals Adam Strochak Adam Bookman December 2012

Weil, Gotshal & Manges LLP Overview of FEMA Disaster Assistance ￭ 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: ￭ Federal support for state disaster response and recovery ￭ Direct federal payments to individuals and families ￭ Examples: ￭ 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) 1

Weil, Gotshal & Manges LLP Assistance to Individuals and Families ￭ Authority ￭ Stafford Act § 408, 42 U.S.C. § 5174 ￭ 44 C.F.R. §§ to ￭ 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: 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 2

Weil, Gotshal & Manges LLP Assistance to Individuals and Families (cont’d) ￭ Applicant’s residence at time of the disaster must be in a county declared a federal disaster area: ￭ 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: ￭ Online: (preferred) ￭ Phone: (800) ￭ Visit a FEMA Disaster Recovery Site 3

Weil, Gotshal & Manges LLP Assistance to Individuals and Families (cont’d) ￭ 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 ￭ Must be related to primary residence ￭ Covers personal residential costs, not business costs ￭ FEMA awards are determined based on a household ￭ 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) 4

Weil, Gotshal & Manges LLP FEMA Housing Assistance ￭ Direct Assistance – temporary housing provided by FEMA (other than hotel vouchers, which is a separate program) ￭ Financial Assistance – payments to individuals and households ￭ Rental Assistance ￭ 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. § ) ￭ 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 5

Weil, Gotshal & Manges LLP Recoupment of Assistance 44 C.F.R. § ￭ Applicants must return funds to FEMA when FEMA determines that: ￭ the assistance was provided erroneously; ￭ applicant spent the funds inappropriately; or ￭ applicant obtained the assistance through fraudulent means. ￭ Reasons for recoupment include: ￭ 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 6

Weil, Gotshal & Manges LLP FEMA – Appeal Process ￭ 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. § ￭ 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 7

Weil, Gotshal & Manges LLP FEMA – Appealable Determinations 44 C.F.R. § (a) ￭ Eligibility for assistance ￭ Amount or type of assistance (including recoupment) ￭ Cancellation of an application ￭ Rejection of a late application ￭ Denial of continued assistance ￭ Intent to collect rent on housing provided by FEMA ￭ “Any other eligibility-related decision” 8

Weil, Gotshal & Manges LLP Appeal Requirements ￭ Must explain reason(s) for the appeal in writing - 44 C.F.R. § (b) ￭ Must be signed by applicant or authorized representative - 44 C.F.R. § (b) ￭ Authorized representatives must use special FEMA form ￭ Must be sent within 60 days of FEMA’s decision mailing date - 44 C.F.R. § (a). ￭ 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 9

Weil, Gotshal & Manges LLP Effective Appeal Strategies ￭ Include all relevant evidence you want considered, in the best form available ￭ 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 10

Weil, Gotshal & Manges LLP Typical Appeal Issues ￭ Shared households ￭ 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 11