Its interesting to hear that the Disaster Legal Services program was not funded as part of the larger federal response to COVID-19. Do you think this is due in part to the various response efforts by state bar associations and judiciaries?
On December 10, 2019, the House Transportation and Infrastructure committee held a round table on the Disaster Recovery Reform act. View the video here or on Congress.gov by clicking here.
FEMA Public Assistance Appeal: Alternate Project
PA ID# 183-76220-00; Town of Zebulon
Facts: In an initial eligibility determination, FEMA denied the Applicant’s request to apply for the Public Assistance Alternative Procedures Pilot (PAAP) Program finding the Applicant did not meet the 12-month opt-in deadline and did not provide justification for an extension of time to apply. The Applicant appealed, explaining that the delay in meeting the PAAP Program deadline was due to the time it spent clarifying the legal responsibility and ownership of the Dam and engaging the community to decide the best use of the Dam. In the first appeal decision, FEMA denied the request to participate in the PAAP Program, relying on similar bases as mentioned in the initial determination. The Region also ruled that any appeal of the PW award was untimely. On second appeal, the Applicant makes similar arguments.
Conclusion: The appeal is denied. The Applicant did not meet the deadline to participate in the PAAP Program and did not provide justification for an extension of time; therefore, its project will be processed under standard PA procedures. In addition, the Applicant did not appeal the amount obligated in PW 1831; therefore, the issue of timeliness concerning that matter is not ripe for review.
- Under the PAAP Program, applicants can elect to receive subgrants for large permanent work projects based on agreed-upon fixed cost estimates, instead of the actual costs of completing the eligible scope of work. At the time of this disaster, the PAAP Program required an applicant and FEMA to agree upon the fixed cost estimate within 12 months after the disaster declaration date. An applicant could have requested a time extension to that timeframe but had to provide justification. The Applicant did not request participation in the PAAP Program until 4 months after the PAAP Program participation deadline expired and has not justified a time extension.
- Section 423(a) of the Stafford Act provides that any decision regarding eligibility for assistance may be appealed within 60 days after the date on which the applicant is notified of the award or denial of assistance. The administrative record does not indicate when FEMA notified the Applicant of its appeal rights concerning the PW obligation amount; therefore, the issue of timeliness is not ripe for appeal.
FEMA Public Assistance Appeal Decision: Time Limitations/Extensions
PA ID# 071-78355-00; Village of Warwick
Facts: On second appeal, the Applicant states the New York State Division of Homeland Security and Emergency Services granted a 30-month retroactive time extension to April 16, 2014. The Applicant requests FEMA waive the administrative condition that a project must be completed within POP deadline under section 301 of the Stafford Act. It lists multiple reasons for the delay in completing permanent repairs, including subsequent disasters, newly discovered additional damages, and a lost PW.
Conclusion: The Applicant did not demonstrate that its failure to complete permanent repair work prior to the POP deadline was the result of the disaster. Therefore, the request for the administrative waiver under Stafford Act section 301 is not warranted. Accordingly, this appeal is denied.
- 44 C.F.R. § 206.204(d)(2) provides that if FEMA denies a time extension request, the applicant may still be reimbursed for eligible project costs, but only those incurred up to the latest approved completion date.The Applicant completed the original approved $29,366.84 in repair work after the latest approved project completion date, and so those costs are not eligible for reimbursement.
- Stafford Act § 301 provides that FEMA may also, if so requested by an applicant, modify or waive, for a major disaster, such administrative conditions for assistance as would otherwise prevent the giving of assistance under such programs if the inability to meet such conditions is a result of the major disaster.The Applicant has not demonstrated the failure to complete the permanent repair work within the POP was a result of this disaster.
On March 12, 2020, the Senate Committee on Small Business and Entrepreneurship held a hearing on the Coronavirus and America’s Small Business Supply Chain. View the video on Senate.gov by clicking here.
On February 12, 2020 the House Transportation and Infrastructure Committee held a hearing on Animals in Disasters see the full video below or view on Congress.gov by clicking here.
FEMA Public Assistance Appeal: Duplication of Benefits – Insurance
PA ID# 117-UWTYU-00; Seminole Community College
Facts: The Applicant submitted a second appeal, arguing that its agreement with Florida College System Risk Management Consortium was a means to pool funds with other colleges, not an insurance policy, and any payments received from FCSRMC were the Applicant’s own money. The FEMA Region IV Regional Administrator denied the appeal. FEMA found that FCSRMC acted as an insurer and was obligated to reimburse the Applicant for any costs exceeding a $10,000.00 deductible, which FEMA had already reimbursed under another PW; any additional Public Assistance funding for the project was a duplication of benefits.
Conclusion: The terms of the Applicant’s agreement with Florida College System Risk Management Consortium demonstrate that it is an insurance pool. Approval of additional PA funding would constitute a duplication of benefits and is prohibited by the Stafford Act. The appeal is denied.
Headnote: FEMA cannot provide assistance for disaster-related losses that would duplicate benefits available to an applicant from another source, including insurance. When two or more entities agree to share risk under a contractual agreement, FEMA defines the agreement as an insurance pool.
- The policy with FCSRMC is a contractual agreement that indemnifies the Applicant in the event of loss by obligating FCSRMC to provide payment for damages.
- Consequently, FEMA’s reduction of funding under PW 773 was proper, as FCSRMC was responsible for reimbursing the Applicant’s costs to repair disaster-related damages, including the costs on appeal.
Texas Waives Law Allowing Alcohol Industry Trucks To Deliver Grocery Supplies
On March 15, 2020, Governor Abbott waived Texas laws that prohibit trucks from the alcohol industry from delivering supplies to grocery stores during the COVID-19 response.
This allows additional transportation assets to be used to resupply grocery stores of necessary supplies.
Out-of-State Medical License Permissions for COVID-19
On March 14, 2020, Governor Abbott directed both the Texas Medical Board (TMB) and the Texas Board of Nursing (TBN) to fast-track temporary licensing of “out-of-state physicians, physician assistants, certain retired physicians, nurses, and other license types” so they can assist with COVID-19 response.
Out of State Medical Licenses: Pursuant to 22 Tex. Admin. Code §§172.20 & 172.21, TMB allows out-of-state physicians (and other professionals regulated by the TMB) to obtain a temporary license, limited emergency license, or hospital-to-hospital credentialing within the disaster declaration period (as applicable). Specific requirements are found on the TMB website.
Recently Retired Physicians: Pursuant to 22 Tex. Admin. Code §166.3, the TMB is inviting physicians to return to apply for a return to active status if they are: (a) Texas residents and (b) have had their licenses in an “official retired status” for less than two-years ret. Tpecific requirements are found on the TMB website.
Nurses: Pursuant to Tex. Gov’t Code §418.171, out-of-state nurses both licensed and in good standing in another state are not required to hold a Texas license in to practice nursing in a disaster relief effort operation setting. Specific requirements are found on the TBN website.
Texas has waived select regulatory controls over the commercial trucking in the state due to COVID-19.
Three sets of statutes are suspended, subject to federal law and DMV safety limitations:
- The oversize and overweight permitting requirements under Tex. Trans. Code Ch. 621-623 and 43 Tex. Admin. Code Ch. 219 for all divisible and non-divisible vehicles and loads;
- The International Registration Plan (IRP) vehicle registration under Tex. Trans. Code § 502.091 and 43 Tex. Admin. Code § 217.56, as long as the vehicle is registered in one of the 48 U.S. contiguous states; and
- The 72-hour and 144-hour temporary registration permits under Tex. Trans. Code § 502.094 and 43 Tex. Admin. Code § 217.40(b)(3), as long as the vehicle is registered in a U.S. state.