The Federal Emergency Management Agency’s (“FEMA”) Public Assistance program provides billions of dollars Federal funding to States, local governments, and eligible private non-profit organizations for emergency disaster mitigation and relief efforts. For instance, the County of Los Angeles recently received $31 million of FEMA assistance to carry out coronavirus testing. In the context of the COVID-19 pandemic, Public Assistance is also available to cover costs such as purchase and distribution of food and protective equipment, disinfecting public facilities, staff training, and communications of health information as well as eligible labor costs. Local governments, including counties, municipalities, cities, local public authorities, school districts, and special districts, may be eligible to receive some of this FEMA funding to cover their increased expenses or to provide additional services.
FEMA is now accepting applications for Public Assistance and local public agencies should act promptly to secure this available assistance. This bulletin is your guide to the types of costs, including labor expenses, that may be eligible for Public Assistance and what California public agencies can do to apply. This bulletin is based on version 4 of the FEMA Public Assistance Program and Policy Guide (“PA Policy Guide”), a new iteration of the Guide published June 1, 2020, and other FEMA resources.
I. A Presidential Declaration Authorizes FEMA Public Assistance for Emergency Measures Taken In Response to COVID-19
The President of the United States must declare a disaster for FEMA funding to be available. The disaster declaration establishes who may apply for FEMA assistance, the deadline to apply for assistance, the types of available assistance, and the percentage of eligible costs that FEMA will cover (the “Federal cost share”). Typically, State and tribal governments initiate the process for obtaining FEMA funds by submitting a request for a disaster declaration. FEMA then evaluates the request and makes recommendations to the President, who approves or denies the request.
Following the national declaration of emergency on March 13, 2020, President Trump approved a disaster declaration for California making FEMA funding available for emergency protective measures and crisis counseling at a federal cost share of 75%.
FEMA assistance generally falls into three categories: Public Assistance, Individual Assistance, and Hazard Mitigation Assistance. Emergency protective measures are a type of Public Assistance, and crisis counseling is a type of Individual Assistance. Only governmental agencies and non-profit organizations are eligible to apply for Public Assistance. Individual Assistance provides aid to affected individuals and households. However, governmental agencies can request funding under specific Individual Assistance programs if they provide the program services directly to individuals in their jurisdiction. Hazard Mitigation Assistance funds measures designed to reduce future losses to public and private property.
The chart below catalogs the various FEMA Disaster Relief Programs and their respective components.
II. Emergency Protective Measures and Eligible Costs
Public Assistance covers emergency protective measures conducted before, during, and after a disaster. Emergency protective measures are measures that eliminate or mitigate immediate threats to life, public health, and safety or threats of significant additional damage to improved public or private property in a cost-effective manner. Emergency protective measures must be required as a result of the disaster, located within the designated disaster area (except for evacuation and sheltering measures), and the legal responsibility of the applicant organization. They cannot include direct financial assistance to individuals or households.
Emergency protective measures that may be eligible for Public Assistance include:
FEMA has issued policies and guidance concerning medical care costs, medical sheltering, alternate care sites, and the purchase and distribution of food. See Chapter 7, Section II of the PA Policy Guide for more information on types of eligible emergency protective measures.
A. Increased Operating Costs
In general, FEMA does not provide funds for an applicant’s increased operating costs. However, short-term increased costs that are directly related to accomplishing specific emergency health and safety tasks as part of emergency protective measures may be eligible. This could plausibly include costs of screening customers or employees. FEMA has yet to weigh in on the issue.
B. Labor Costs
The cost of employees’ time spent conducting emergency protective measures (i.e., eligible emergency work) may be eligible for Public Assistance. FEMA reimburses labor based on employees’ actual hour rates plus the cost of benefits, which is based on a percentage of the normal hourly rate. (PA Policy Guide at p. 69.) FEMA determines the eligibility of overtime, premium pay, and compensatory time costs based on the applicant’s pre-disaster written labor policies to the extent they provide for non-discretionary pay rates that are uniformly applied.
The cost of overtime and hazardous duty compensation for all employees performing eligible emergency work is eligible for Public Assistance. (42 U.S.C. § 5170b(d).) Straight-time (that is, non-overtime) is only eligible for “unbudgeted employees,” such as employees called back from administrative leave, employees funded from external sources (such as a grant), temporary employees, and seasonal employees working outside their normal season of employment (seasonal employees working during their normal season of employment are considered budgeted employees). (PA Policy Guide at pp. 69-70.)
Labor costs are eligible even if an employee was assigned to perform eligible emergency work that is not a part of the employee’s normal duties. (PA Policy Guide at pp. 69-70.) If an employee funded from external sources is reassigned to perform work that the external source does not fund, such labor costs are reimbursable. In addition, Public Assistance can cover labor costs for employees filling for those performing eligible work, even if the employee is not himself performing eligible emergency work. FEMA reimburses overtime costs for such backfill employees and will also reimburse straight-time if the backfill employee is contracted/temporary or a permanent employee called in on a normally scheduled day off.
All costs must be reasonable and necessary to accomplish the work properly and efficiently. In the context of labor costs, FEMA will determine whether the number of hours claimed is reasonable and necessary by evaluating:
Administrative leave or similar labor costs incurred for employees sent home or told not to report due to emergency conditions are not eligible.
The updated PA Policy Guide clarifies that stand-by time is eligible for staff conducting eligible evacuation or sheltering, search and rescue, or emergency medical care when:
C. Federal Cost-Sharing and Cost Limitations
Public Assistance is subject to Federal cost-sharing. For Public Assistance issued pursuant to the declaration of disaster for COVID-19, the federal share is 75% (meaning FEMA will cover 75% of eligible costs).
FEMA is a funding source of last resort. FEMA will not reimburse costs that are covered by other sources. Public Assistance will not cover an otherwise eligible cost to the extent it is covered under an insurance plan. Applicants are required to reasonably pursue insurance claims for eligible costs, though the cost pursuing an insurance claim may offset the amount of FEMA reduction.
An applicant may use non-federal grants and cash donations towards the remaining 25% of eligible costs if the funds have been designated for the same purpose of eligible work. However, FEMA will reduce the amount of assistance by any amounts in excess of 25%.If the funds are not designated for any specific purpose, the funds may be used towards the non-federal cost share and any excess amounts may be used towards ineligible work. (PA Policy Guide at p. 94-95.)
III. How to Apply for FEMA Public Assistance
The above figure depicts the streamed application process. (Credit: https://www.fema.gov/news-release/2020/03/23/coronavirus-covid-19-pandemic-public-assistance-simplified-application.)
Under the Public Assistance Program, FEMA awards funds to the designated State agency responsible for disaster relief efforts. FEMA refers to the designated State agency as the “Recipient.” FEMA coordinates with the Recipient in administering and disbursing funds, monitoring the use of funds, and implementing the program. For California, the Recipient is the Governor’s Office of Emergency Services (“Cal OES”).
A. Pre-Application Briefing
Prior to submitting an application for Public Assistance, agencies should (but are not required to) attend an applicant briefing conducted by Recipient. The applicant briefing provides high-level information on application procedures, cost eligibility, documentation requirements, payment processing, and deadlines. Cal OES recently conducted the applicant briefing as a webinar and the briefing materials can be found on the Cal OES website. Applicants should review the briefing materials before beginning the online application process.
B. New Streamlined Application Process
In March, FEMA announced that it was launching a streamlined online application process for Public Assistance under the COVID-19 declarations. Cities, counties, special districts, and school districts can initiate the application process by submitting a Request for Public Assistance (“RPA”) online using the online grants portal found here. A series of instructional videos on using the online grants portal can be found here. The request is due within 30 days of the end of the disaster. Because COVID-19 is currently ongoing and no end date has been set, the application period is currently open. However, agencies should act sooner rather than later, as the application can be a time-intensive process.
Using the RPA, an applicant provides general information about its organization, including physical location and point of contact. The RPA must indicate the applicant’s active Data Universal Number System (“DUNS”) number.
FEMA and Cal OES will review the RPA to determine whether the applicant is eligible for Public Assistance. After the RPA is approved, Applicants will be assigned a Program Delivery Manager who will serve as the single point of contact for FEMA’s Public Assistance program. The Program Delivery Manager will contact the Applicant to schedule a Recovery Scoping Meeting. This meeting is designed to discuss the Applicant’s specific damages and documentation necessary to support claims for costs. In preparation for this meeting, Applicants should compile necessary documentation. Finally, Applications submit the Project Application online through the Grants Portal. (See COVID-19 Streamlined Project Application Public Assistance Applicant Quick Guide.)
C. Appeals
Applicants can appeal any FEMA decision related to an application for, or the provision of, Public Assistance by sending FEMA a written appeal to Cal OES within 60 days of the decision. FEMA provides applicants with two opportunities to appeal a determination. The first appeal is to the Regional Administrator. If an applicant disagrees with the first appeal determination, it may submit a second appeal to the Assistant Administrator of the Recovery Directorate at FEMA Headquarters. All second appeal decisions represent the agency’s final administrative decision on the matter.
Conclusion
The COVID-19 public health emergency has been a stressful experience for many California local public agencies. In addition to the personal health toll it has taken on those who have become ill, the crisis has added workload, raised new issues, interfered with traditional public services, undermined public agencies’ revenue expectations and created new costs. The FEMA assistance discussed in this article creates an opportunity to mitigate some of the financial distress for some agencies. We hope the information that we have discussed in this article will make that process easier and more effective for your agency.