FEMA Recoupment:What advocates should be doing for clients Attorney Ranie Thompson, Equal Justice Works Katrina Legal Fellow
Introduction: Who I am • Ranie Thompson • Equal Justice Works Katrina Legal Fellow • Began working with NOLAC in April 2006 in the public benefits unit. She provides legal assistance to clients in matters related to medicaid, social security benefits, and FEMA claims. • Before joining the NOLAC staff, she was employed as a Staff Attorney with the ACLU of Mississippi. • Former managing attorney for Acadiana Legal Services Corp. in Lake Charles, La. While there, she practiced in the area of family law.
FEMA Recoupment: What the law says § 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.
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
Rights of defendants/claimants • Appeal • Pay back and appeal • Review evidence used to reach decision • Hardship Waiver • Compromise of Debt • Suspension of Debt • Termination of Debt
FEMA’s basis for recoupment – 1 of 2 • 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 atleast the assistance amount. 44 CFR 206.110(k)(3)(i) • Overpayment (personal property) • Replacement housing to a renter
FEMA’s basis for recoupment – 2 of 2 • Failure to prove ownership/home was owned by another and recipient was a renter thus no replacement housing should have been awarded
What to do when the applicant comes into your office • Interview – see FEMA Recoupment screening form on www.probono.net/la. • Have applicant sign FEMA Release of Information form. • If not already done, fax a request for file on applicant’s behalf to FEMA. • Keep track of verifications because FEMA might lose it or fail to process it timely. • Review letter with applicant • Determine deadline for appeal. • Advise applicant of his/her rights. • Follow up with letter to confirm conversation and ask for information you need to determine if you will file the appeal or if the appeal is meritorious. • Send your request from FEMA a copy of applicant file and other evidence. • Set timeline to avoid missing the appeal deadline.
Scenarios WHO’S AT YOUR DOOR?
Scenario 1: Deadline has passed • Explain the possible consequences of this to the applicant. • (i.e. FEMA could reject the appeal, but we don’t believe they will.) • Request a copy of the file from FEMA. • Determine the status of the situation based on the appeal timeline outlined in the letter from FEMA. • Explain all of it to applicant. • Determine what other information is needed. • If meritorious, then prepare appeal. • Include statement explaining why it’s beyond the deadline. • Also, see pro se letter on www.probono.net/la. • Judgment call as to whether or not to file. Appeal is already late so just file it as quickly as possible.
Scenario 2: The 11th hour applicant • Explain the appeal process to applicant. • Advise of your procedure for handling these cases (acceptance/denials) • Advise of right to file with pro se appeal. (See www.probono.net/la) • Determine what other information is needed. • Request a copy of the file from FEMA. • Follow up interview with letter • Set timeline to deal with acceptance determination and filing of appeal.
Scenario 3: Applicant filed a pro se appeal • Get copy of Recoupment notice sent to applicant. • Get copy of appeal, if available. • Ask applicant when it was filed. • Determine if decision been made. • Supplemental appeal. • b/c FEMA is taking up to 90 days to rule, 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. • Request copy of FEMA file. • Have applicant sign declaration for release of information. • Follow up with letter to applicant.
Scenario 4: FEMA has issued a decision • Get copy of recoupment notice. • Get copy of appeal filed by applicant. • Get copy of FEMA rejection. • Determine grounds to seek reconsideration. • Applicant sign Declaration of Release of Information. • Advise applicant of rights • Payment plan • Hardship waiver request • Compromise/suspension/termination request • Federal court appeal is available for six years (5th Circuit). • Factual issues may not get review; may need a violation of law (including due process and other procedural issues. 42 USC 5148; Dureiko v. United States, 209 F.3d 1345, 1351 (Fed. Cir. 2000); Graham v. Federal Emergency Management Agency, 149 F.3d 997, 1006 (9th Cir. 1998).
Scenario 5: Applicant looks ineligible • Discuss applicant’s means of repaying the money. • Current expenses • Debt • Assets • Contact Disaster Finance Center • Request a hardship waiver. • Briefly outline why it would be a hardship to repay money. • Social security benefits protected up to $750/month • 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.
The Appeal Letter: Background • pre-disaster • post-disaster
The Appeal Letter: Eligibility Defense (1 of 2) Defense based on type of assistance received and basis for claim • Duplication of benefits to Head of 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 • 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
The Appeal Letter: eligibility defense (2 of 2) • 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: other considerations • Mentally disabled client • Due process / Request for live hearing • Res Judicata / Estoppel • Reserve right to supplement • Hardship waiver • Compromise/termination request
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)
Next Steps • Continue to share information through our website • Invite others to join the conversation • Reconvene for followup? • What else would be helpful to support your work?