Presentation on theme: "FEMA Claims Post-Katrina Attorney Ranie Thompson Equal Justice Works Katrina Legal Fellows New Orleans Legal Assistance (An Office of Southeast Louisiana."— Presentation transcript:
FEMA Claims Post-Katrina Attorney Ranie Thompson Equal Justice Works Katrina Legal Fellows New Orleans Legal Assistance (An Office of Southeast Louisiana Legal Services)
Introduction Contact Information: New Orleans Legal Assistance (NOLAC) An Office of Southeast La. Legal Services 1010 Common Street, Suite 1400A New Orleans, LA 70112 Attorney Ranie T. Thompson 504-529-1000 ext. 254
FEMA and Disaster Assistance Program Law Individual and Household Program Other Needs Assistance
Governing authorities for FEMA Robert T. Stafford Act 42 USC 5174 & 44 CFR 206 Subpart D (a)§408 Robert T. Stafford Act has been adopted and implemented by FEMA as part of the regulations governing disaster assistance following federally declared disasters. (b)44 CFR 206.110 - 119 are the regulations governing FEMA. Subpart D deals with Federal Assistance to Individuals and Households. (c)Internal policies developed by FEMA. Agency administration continuously develops new and change existing policies throughout the course of the provision of services. Some can be found on the agency website and other advocacy-based sites that monitor FEMA. Most are not published and we only learned from them via helpline workers.
TIPS FOR THE ADVOCATE KNOW THE LAW AND LINGO Get familiar with regulations and policies. FEMA workers were poorly trained. Most of what happens high up doesn’t get to lower level workers and when it does, there’s still problems with properly applying. EX. Termination without notice because of alleged recoupment/overpayment. FEMA workers typically have no legal training and very little training by the agency regarding the law and policies relative to disaster assistance.
FEMA’s Purpose To provide financial assistance and direct assistance when necessary, to ELIGIBLE individuals and households who as a direct result of a major disaster or emergency, have UNINSURED or UNDERINSURED, necessary expenses and serious needs and are unable to meet such expenses or needs through other means.
FEMA Programs Individual and Household Program (IHP) provides financial assistance and/or direct assistance to eligible individuals and households as a direct result of a major disaster or emergency, have uninsured or under-insured, necessary expenses and serious needs, and are unable to meet such expenses or needs through other means.
Tips for the Advocate Reminder: The purpose of the agency and the assistance is to meet the needs of the individual and/or household brought on by the disaster. It is NOT a program to make the applicant whole or to improve conditions that existed before the disaster. Don’t rely on FEMA to treat each applicant the same even if they are neighbors who may have lived right next door to each other. Look at each situation and use the law to support the client’s case to get the best result.
REGISTRATION & ELIGIBILITY When to apply? Who can get help?
Registration Deadline – 206.112 60 days after federally declared disaster Can be extended by regional director or his designee Done for Katrina Late registrations accepted with good cause shown 206.112(c) suitable documentation and justification for delay in registration
Who’s eligible under IHP? 44 CFR 206.113 Homeowners and Renters (look for Head of Household) Leaseholders Persons whose primary residence is destroyed, uninhabitable or inaccessible Renters whose primary residence is no longer available as a result of the disaster. BEWARE: pre-disaster landlord may have been contacted by FEMA and may not have answered honestly about the availability of the property. Has led to denials of rental/housing assistance and other needs assistance Client asked for name of company that picked up property off curb where landlord placed it. Denied her personal property. Client denied assistance b/c landlord refused to open gate for FEMA inspectors to look over the property
IHP Eligibility (cont’d) Insured persons who are waiting on payment on claims filed with insurance companies. BEWARE: applicant WILL have to pay money back to FEMA once he receives insurance proceeds. Uninsured renters and homeowners Underinsured homeowners and renters Insurance proceeds are insufficient to cover loss If insurance paid maximum that FEMA would pay, then FEMA deems it sufficient.
Who might be ineligible? Persons displaced from pre-disaster home for reason other than disaster Persons displaced from other than their pre-disaster primary residence Persons with adequate rent-free housing alternatives Persons with secondary or vacation home within reasonable commuting distance to disaster area Persons who own rental property that meets their temporary housing needs Persons in shared household situation and pre-disaster roommates Persons who failed to maintain flood insurance on property as a requirement of receiving previous Federal Disaster assistance Flood Bar rule Renters without “proof” of Landlord/Tenant Relationship
Tips for Advocate Don’t rely on FEMA findings as correct. It’s important to investigate to determine the validity of their findings. Ask for proof. Ex: Orleans Parish Sheriff’s Deputies who registered while on duty at time of disaster and FEMA worker listed Orleans Parish Prison as his primary residence.
What assistance is available? Expedited assistance $2,000 for Katrina and Rita to meet immediate basic needs of applicants Late Registration for Katrina: probably not available Transitional housing assistance (i.e. rental assistance) $2,358 for Katrina and Rita purposes Money must be used for rental assistance BUT: if used for another purpose, applicants should complete the Declaration of Need and Use of Funds form when seeking additional rental assistance from FEMA. (www.femaanswers.org)www.femaanswers.org Don’t count of FEMA explaining the purpose of the money being given. Many applicants will simply find a large sum of money has been deposited into their bank accounts and have no explanation.
Types of assistance cont’d Rental/Housing Assistance Direct assistance to applicant Payment to landlords Housing Repairs (up to $5,200) Housing Replacement (up to $10,500) Temporary Housing – FEMA trailers
Other Needs Assistance (ONA) Other Needs Assistance 44 CFR 206.119 Expenses other than housing/rental assistance needs Applicants must apply for an SBA disaster loan and either be Denied, or Show that the money received doesn’t meet their needs arising from the disaster. NOT NEEDED FOR HOUSING PROGRAM SBA can do “desk denial” for folks below income level set by FEMA and SBA. Thus, this requirement was waived for a lot of people.
ONA covers Medical, dental, and funeral Transportation Relocation Other expenses Personal property assistance Award amounts based on FEMA policy. See press release following Katrina. Beware of the roommate/shared household situations Note: medical/dental/funeral must be related to Katrina (or Rita).
Types of Assistance continued Crisis Counseling Legal Services Disaster Unemployment Assistance Disaster Food Stamps
Tips for the Advocate Applications submitted will be screened for eligibility for all available assistance EVEN IF APPLICANT DIDN’T ASK FOR IT! $26,200 cap on DIRECT ASSISTANCE (Katrina and Rita) REMINDER: The assistance is given for disaster related losses only. (important for ONA) KEEP ALL RECEIPTS!! Applicants will have to submit these to show exhaustion of funds before being able to get additional rental assistance and to defend against overpayments claims. KEEP A RECORD. FEMA conducts an audit and may ask applicants to repay money received because FEMA believes they were ineligible.
Advocacy Strategies Determine the Issues (use a screening form) Determine if special factor such as disability, age or language barrier may affect their FEMA case (may have ADA or other claim) Gather the Documents Signed Releases (at least 3 originals) (see 44 CFR 206.110(j)(1)(i)) (see sample release) Copies of FEMA papers (incl. application) Copies of other relevant papers Photos if available (double prints)
What you need from applicant? Demographics SSN Date of birth Damaged property address Current Mailing address – as listed in FEMA’s records Current phone number(s) – including what FEMA has Insurance information (if applicable) FEMA File/Documents Request must be written. Fax okay.
Timeline Written appeal must be postmarked/faxed within 60 days of decision letter Louisiana only has written appeals Signed by applicant or by Authorized Representative Enclose signed original release Include the FEMA case number and disaster number on every page FEMA uses codes in denial letters. See FEMA’s applicant guide for an explanation of denial codes Fax to (800) 827-8112, Attention: FEMA – Individuals and Households Program (MAIL original copies) FEMA should respond in writing within 90 days FEMA Decision is Final Give ‘em everything you’ve got upfront. This might be your only shot at convincing them. Regulations say the decision is final, but appeal again if there’s merit.
Tips for the Advocate FEMA’s notices generally provide basic information about applicants right to appeal. (See sample letters) Call and talk with helpline workers – gently argue your case. You might get lucky. Notices are generally insufficient. FILE APPEALS ON TIME. Appeal even if untimely. FEMA is not always on its game. WARNING: Don’t rely on agency general incompetence because there has been occasion that appeals were denied as untimely.
Scenario 1: Deadline has passed – No appeal filed Possible consequences FEMA could reject the appeal, but we don’t believe they will. Note: It has been done Investigate Client’s story Call FEMA helpline for details. If meritorious, appeal. Include statement explaining why it’s beyond the deadline. Judgment call as to whether or not to file (might want to wait on FEMA file). Appeal is already late so just file it as quickly as possible.
Scenario 2: Appeal filed Get copy of notice of denial of assistance sent to applicant. Get copy of appeal, if available. Determine status of appeal. Supplemental appeal (no decision) b/c FEMA takes so long to rule eventhough the regs say 60 days, it may be possible to supplement applicant’s pro se appeal if there’s additional meritorious arguments to be made and/or supporting evidence to defend against the claim. BEWARE: This might result in further delay of your client’s case b/c FEMA scans things in and starts over with each new piece of information that comes in on the case. They’re not organized.
Scenario 3: Decision issued Get copy of notice of decision. Determine grounds to seek reconsideration. If meritorious, move forward with appeal as previously described. 60 day rule applies. Alternative – go to court under federal Administrative Procedures Act. Due to long statute of limitations, nothing lost by appealing again before filing in court unless FEMA says the information added in the late appeal was missing in the first and so was properly denied.
Common Issues on Appeal Split/Shared Households Duplication of Benefits Eligibility for Rental Assistance – Continued Need for Assistance
“Shared Household” Problem for Low- Income Families FEMA typically pays for housing assistance to only one “household” even if they have split up FEMA defines a “household” as all people who lived together in the pre-disaster residence or are likely to live together after A person may be denied housing if another previous household member has already applied or received FEMA, even if they don’t live together now Example: A woman with two children lived with her sister and husband in New Orleans. If one family fled to Louisiana and one to Texas, only the first to apply may get help—all other household members can be denied
“Shared Households” Problem for Low- Income cont’d FEMA Regional Director has authority to grant benefits to more than one person in a household (HH) if the “nature” or “size” of the household requires it. FEMA relaxed this rule for Katrina (see 9/19/05 FEMA memo allowing waiver of shared HH rule in unfair circumstances, and 11/26/05 FEMA press release: “Extended Families Living Together May Be Eligible for FEMA Disaster Assistance”)
Shared Households – Cont’d Attempt informal resolution with FEMA (call the HELP Line and request separate assistance for applicant, explaining their circumstances, and mention FEMA press release and regulations) If necessary, appeal (see sample appeal letters)
“Withdrawal”/Lack of Contact FEMA sends notice of denial of assistance for lack of contact or “withdrawal” or lack of response (applicant misses attempted FEMA contact, or FEMA error) Attempt informal resolution with FEMA (make sure FEMA has client’s current contact info and that still needs FEMA assistance, and explain any circumstances that interfered with FEMA communications) If appeal necessary, ask FEMA for proof of when attempted contact made to applicant
Inspections/Access/ “Insufficient Damages” Issues Some tenants have either been evicted or have moved out of pre-disaster rentals Landlords often don’t cooperate with FEMA inspections Tenants can’t easily prove damages for FEMA assistance
Inspections/Lack of Access– Cont’d Attempt informal resolution with FEMA Let FEMA know circumstances that interfere with FEMA access Provide pictures (damaged dwelling and personal property) if available Ask for exterior inspection (e.g., blue roof shows likely wind and rain damage of interior) Try to get statements or affidavits from landlord, neighbors and family/friends about damages Ask for related inspection reports (e.g., landlord or tenants in same building) If necessary, appeal.
Flood Insurance Requirement FEMA’s Flood Insurance: “One Bite at the Apple” An individual can be denied help from FEMA if he/she: Lived in a flood zone; and Got FEMA help before in another disaster; and Was told to buy flood insurance; and Does not carry flood insurance now. Many applicants don’t recall receipt of FEMA funds or notice of flood insurance requirement; South La. has had many prior declared disasters.
Flood Insurance Requirement – Cont’d Attempt informal resolution with FEMA (explain any circumstances should absolve applicant from bar – e.g., mental disability, no actual notice) If appeal necessary, ask FEMA for proof of when and how insurance requirement notice made to applicant Current owner or household member not same as individual/household member who received prior assistance. (May have to sue FEMA on this issue) – See SLLS suit: Morris v. FEMA, et al.
Duplication of Benefits Find out basis of duplication and what assistance is denied If rental and looks like two members from single household Argue your client was head of household of one (1) Get tax docs if available to support this Use SHARED HOUSEHOLD policy if it fits (See handout) Same strategy for Recoupment/Recovery purposes Personal property (no access to proceeds) FEMA press release re level of flood water = amount of award Satellite mapping results demonstrating damage to client property Money received by other household member not shared with client Renters: Argue uninsured if had no renters insurance Shared households member: Argue no access to insurance proceeds received by homeowner
Recoupment (Overpayments) Split/Shared Households Duplication of Benefits Eligibility for Rental Assistance Ownership Primary Residency Occupancy
The law: 44 CFR 206.116 Recovery of Funds… (a)The applicant must agree to repay to FEMA (when funds are provided by FEMA) and/or the State (when funds are provided by the State) from insurance proceeds or recoveries from any other source an amount equivalent to the value of the assistance provided. In no event must the amount repaid to FEMA and/or the State exceed the amount that the applicant recovers from insurance or any other source. (b)An applicant must return funds to FEMA and/or the State (when funds are provided by the State) when FEMA and/or the State determines that the assistance was provided erroneously, that the applicant spent the funds inappropriately, or that the applicant obtained the assistance through fraudulent means.
Basis for Recoupment Duplication of benefits (44 C.F.R.§206.110) with household member; with Head of Household With insured homeowner Single Household Rule: 44 C.F.R. §206.117 Duplication of benefits with insurance Damaged dwelling was not primary residence Failure to prove occupancy Flood insurance purchase requirement (44 C.F.R.§206.110(k)) we believe there are defenses for people who purchased the property without knowledge of prior flooding if nothing in the property transfer documents sets out a requirement to maintain the insurance how much was previous award? May be a defense if it was less than subsequent award post-Katrina. Regulation states that must maintain insurance for at least the assistance amount. 44 CFR 206.110(k)(3)(i) Overpayment (personal property) Replacement housing to a renter
Tip for Advocate Investigate the basis given by FEMA to determine if there is a defense.
Likely defendants Persons in shared household situation pre-disaster and post-disaster Pre-disaster roommates Persons living in homes owned by deceased parents where no succession or probate of will has been done Renters without “proof” of Landlord/Tenant Relationship Major children who lived in home with parents and contributed to maintenance of household and expenses Persons deemed eligible for assistance as head of household by FEMA workers shortly after the storm Mentally disabled persons
What monies are being recouped? Personal property assistance primarily those who got $10,391.51 Common thread: shared household situations Expedited assistance $2,000 Transitional housing assistance $2,358 Use the Declaration of Need and Use of Funds form that allows this money to be used for purpose other than rental assistance See www.femaanswers.org Transportation Rental assistance
Appeal: Timeline, interests, costs, and penalties 30 days – pay now, talk later 60 days – deadline to appeal: POSTMARKED 90 days – time frame to set up repayment plan 120 days – turned over to US Treasury Department
Appeals (cont’d) Payment plans can be set up through the Disaster Finance Center DFC will try to get maximum amount for monthly payment Argue for reduced payment pending appeal Success with as little as $20/mo
Rights of defendants/claimants Appeal Pay back and appeal Review evidence used to reach decision 44 CFR 11 Hardship Waiver/Compromise – 11.50 Suspension/Termination of Debt – 11.51
The Appeal Letter: eligibility defense Insurance: underinsured; uninsured (e.g., renters) How much can FEMA collect? Get copies of insurance settlement to determine amount and type of coverage Rental assistance Describe pre-disaster living Describe post-disaster living Make shared household argument based on FEMA policy Money received by other household member not shared with client Expedited Assistance Transitional housing assistance Transportation
The Appeal Letter: what to include Declaration of client (basic testimony) Declaration of other supporters Copies of documentation to support position (if necessary and available)
Waivers, Compromises, Terminations When it looks like your client must repay the money…
Waivers, Compromises, Terminations When it looks like your client must repay the money…
When Applicant looks ineligible Discuss applicant’s means of repaying the money. Current expenses Debt Assets Contact Disaster Finance Center Compromise FEMA wants 80% but work with whatever applicant has to negotiate resolution Voluntary Payments Request a hardship waiver 44 CFR 11.50 Briefly outline why it would be a hardship to repay money. Social security benefits protected up to $750/month (31 USC 3716(c)(3)(a)(ii) or 31 CFR 285.4(e)(1)(ii) Unlikely full debt will be collected in a reasonable time Prepare applicant for what he’ll need to submit to support the request. See sample packet received from FEMA.