Legal

This webpage offers information to members of the legal community who provide assistance in the area of emergency management law.

Message From Executive Counsel - October 2009

The legacy of Hurricanes Katrina and Rita is that the preparation for, the response to and the recovery from emergencies and disasters is a complicated and expensive affair. Every step in the process involves the application of some federal or state law or regulation.

It is essential for lawyers who represent parishes, and municipalities to understand the law which allows their clients to exercise the necessary police powers to respond to any emergency and to protect these stakeholders from potential lawsuits.

While millions of dollars have been awarded under the FEMA Public Assistance Program, mistakes made by the applicants in the grant administration of the program have proven to be costly. FEMA and the Department of Homeland Security-Office of Inspector General (DHS-OIG) are forever reviewing grant awards, finding errors and de-obligating grant funds.

While DHS-OIG and FEMA can be criticized at times for unreasonable application of the regulations, many of the problems resulting in de-obligation stem from the need of the applicant to better understand the requirements of the federal regulations which govern the Public Assistance Program.

It has been my experience that an engaged, well-informed attorney can greatly assist an applicant in avoiding those pitfalls which result in the de-obligation of grant funds and if necessary, enhance the chances of the applicant to wage a successful appeal.

The purpose of this webpage is to provide relevant information to those attorneys who are responsible to provide legal support in the area of emergency management. It is my hope that this information will improve legal skills and contribute to the success of your clients who are responsible to respond to emergencies and who endeavor to re-build their infrastructure.

All comments and suggestions on any area of emergency management law are welcome at any time.

Bernard M. Plaia, Jr.
Executive Counsel
225-925-7445
ben.plaia@la.gov

Newsletter - October 2009

Arbitration Panel added to Appeal Process

The appeal process for the FEMA Public Assistance program is governed by 44 CFR 206.206. Over the last two years, the Disaster Recovery Division of GOHSEP has spearheaded an effort to change the appeal process, suggesting that it be governed by a neutral body and that the appeals body be staffed by experts able to understand the technical issues which inevitably arise.

On February 17, 2009, the American Recovery and Reinvestment Act was signed into law. A provision of the Act was the creation of an arbitration panel as an option to the appeal process as stated in 44CFR206.206. The objective of the law was to expedite the resolution of disputed projects governed by the FEMA Public Assistance Program. Subsequently, on August 31, 2009, FEMA published a new regulation, 44 CFR 206.209, which governs the arbitration process.

There are many parts to the regulation. Here are the highlights of which you should be aware:

• Arbitration option is limited to Hurricanes Katrina and Rita
• Project costs must be greater than $500,000
• If you have a pending appeal and you wish to opt for the arbitration panel, you must withdraw your appeal by October 30, 2009
• Request for arbitration must be in writing
• Hearing conducted by Civilian Board of Contract Appeals (CBCA)
• Regulation outlines the format of the appeal although FEMA has stated that each panel has the discretion to dictate its own rules and procedure for each case
• Applicant must submit complete appeal package within 30 days of notification of FEMA action which prompts the appeal
• Final decision of the panel is binding to both FEMA and the applicant.

There are a number of unanswered questions regarding the process. I will keep you informed as we learn more. In the meantime, additional information on the arbitration process can be found at www.fema.gov/government/grant/pa/arbitration. If you have a pending appeal or anticipate one, I strongly suggest that you contact the GOHSEP Appeals Section at 225-267-2886 and speak to one of the appeals attorneys for detailed assistance.