Appeal vs Arbitration – What’s the difference?

June 7, 2020 4:29 pm Published by Leave your thoughts

If you have been through the FEMA Public Assistance process, you are likely familiar with Determination Memos and Appeals.  However, you may recently have begun to hear about Arbitration and may be wondering how or when does that come into play?  Well I am here to break it all down for you.

First, let us start at the beginning:

Determination Memo’s

FEMA’s Public Assistance Program and Policy Guide (PAPPG), lovingly referred to as “Papa-G,” lays out guidelines, based on 44CFR and the Stafford Act, as to eligibility considerations for Applicants, Facilities, Work, and Cost.  These guidelines are interpreted and applied to all Public Assistance (PA) project applications developed.  If FEMA comes to a conclusion that one of these elements is not eligible, they will write a Determination Memo (DM) laying out the issues and the reasons for their conclusions based on the information available and relating it directly to the policy and the law.  Once issued, the project is no longer inconsideration for funding.

If the Applicant disagrees with this decision, they may appeal it, in accordance with 44 CFR §206.206.

Appeals

Appeals are the traditional way an Applicant can formally disagree with a decision FEMA has made regarding eligibility.  The Applicant has 60 days from receipt of the determination to file their appeal to the Recipient (the State, typically).  The Recipient then must forward the appeal with their written recommendation to FEMA within 60 days of its receipt.

FEMA then either provides a final written decision or issues a Request For Information (RFI) within 90 days.  If an RFI is issued, the Applicant typically will have 30 days to respond.  As you can see, the days start adding up.  At this point, nearly a year could potentially have passed before a decision is made.

Once the decision is made the funding is reinstated (either fully or partially) or the DM stands, and the funding is denied.

At this point, the Applicant may opt to file a second appeal – a final opportunity to state their case. The timeline and process follows as described above.  The difference is that while the first appeal is heard by the Regional Administrator, the second appeal makes its way to FEMA HQ where the decision comes from the Assistant Administrator of the Recovery Directorate.

The Applicant now may also have an opportunity to request arbitration, which is described below.

Arbitration

Per Section 1219 of the Disaster Recovery Reform Act of 2018 (DRRA) which amended Section 423 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act), Applicants now have the ability to request arbitration, rather than a second appeal.

To be eligible for arbitration, an Applicant’s request must meet all three of the following conditions:

  1. The dispute arises from a disaster declared after January 1, 2016; and
  2. The disputed amount exceeds $500,000 (or $100,000 if the applicant is in a “rural area,” defined as having a population of less than 200,000 living outside an urbanized area); and
  3. The applicant filed a first-level appeal with FEMA pursuant to the time requirements established in 44 CFR §206.206.

Rather than going through FEMA HQ, as is done for a second appeal, arbitration is heard by the Civilian Board of Contract Appeals (CBCA) – an independent tribunal housed within the General Services Administration. Fourteen administrative judges appointed by the Administrator of General Services preside over cases filed at the CBCA.

An applicant must submit its request for arbitration in writing simultaneously to the Recipient, the FEMA Regional Administrator, and the arbitration administrator (the CBCA).  Per CBCA regulations at 48 CFR 6106.601 – .613, “Each party shall have one primary representative. This person need not be an attorney…”; and “[n]o party is required to provide additional evidence. An applicant or grantee may, but need not, supplement materials it previously provided to FEMA regarding the dispute.”

We Can Help

Whatever scenario you find yourself in, Govtrain Solutions has the experience and knowledge to assist you and guide you through this process.  We have extensive knowledge of FEMA policy and law and we have years of experience with FEMA’s Public Assistance Program to be able to help write Appeals and to advise regarding Arbitration.  We know your frustrations and will so whatever we can to make this process as quick and seamless as possible.  Please go to www.govtrainsolution.com to schedule a free consultation today!

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