Becker & Poliakoff

FEMA Public Assistance Guidance, Cost Share Legislation, and Hurricane/COVID Planning

FEMA Public Assistance Guidance, Cost Share Legislation, and Hurricane/COVID Planning

Becker & PoliakoffThere has been a good deal of FEMA news since Friday including public assistance guidance, legislation to decrease local cost share, and some interesting coverage from Axios on the potential intersection of hurricane season and continuing COVID-19 response. Here is a breakdown:

Public Assistance Guidance

On Friday we participated in a webinar discussion with FEMA’s Public Assistance Deputy Division Director Todd Wells to provide guidance and a better understanding of FEMA’s engagement with local governments relevant to public assistance programs for COVID. FEMA’s Public Assistance (PA) programs include funding to states, territorial, tribal, and local governments, and certain types of private non-profits for the costs necessary to respond to and recover from major disasters for emergencies declared by the President.

All states, tribes, territories, and the District of Columbia, now have or are covered by major disaster declarations for Covid-19. The entire nation and all sub-jurisdictions are now covered by COVID disaster declarations. These declarations for COVID authorize FEMA to provide assistance for emergency measures necessary as a result of the pandemic public assistance program category B for emergency protective measures. The types of emergency protective measures that FEMA may provide funding for include the following (if not funded by HHS or another federal agency):

  • Emergency Operation Centers
  • Personal Protective Equipment – PPE
  • Emergency Medical Care – a) Treatment of Covid-19 patient, B) Temporary facilities, C) Testing
  • Sheltering when necessary to address public health and safety needs
  • Purchase and distribution of commodities such as food when necessary to address public health and safety
  • Security and law enforcement
  • Communication of health and safety information to the public

FEMA’s PA programs have been streamlined for COVID. The application process has been set up through FEMA’s PA Grants Portal online. The first step in the process is submitting a Request for Public Assistance (RPA) to the state and FEMA online through its Grants Portal. For technical assistance with Grants Portal, applicants can call the Grants Portal hotline at 1-866-337-8448 (questions on PA eligibility should be directed to State and Regional contacts). Additionally, FEMA has issued specific PA guidance and fact sheets on its website to provide additional resources to counties.

Frequently Asked Questions from Counties on Covid-19 Specific Issues:

  • PPE – the purchase of PPE may be eligible when necessary to protect the public and employees from the health and safety threats from COVID.
  • Emergency feeding – may be eligible when necessary to meet the immediate needs of those who do not have access to food as a result of COVID and to protect the public from the spread of the virus, including high-risk populations subject to stay at home orders.
  • Sheltering/Homeless – immediate, short term non-congregate sheltering in Covid-19 may be eligible in certain circumstances for high-risk individuals when necessary to protect public and safety and may include homeless individuals.
  • Expanding facilities for social distancing – generally not eligible for PA, except for the addition of hospital capacity to treat COVID patients; other funding may be available.
  • Elections – the cost of administering elections is generally not eligible, although some costs such as PPE may be eligible
  • Can Coronavirus Relief Funds be used as the 25% match for the FEMA PA program match? – FEMA is currently working on providing accurate guidance as of today not a final determination has been made by the agency and it is still pending for further consideration and guidance.
  • Under FEMA ‘s PA program, how long can the reimbursement process take? It depends on the level of complexity of a particular project or documentation that is available.

FEMA’s representative highlighted the duplication of benefits, FEMA can not duplicate funding provided by another federal agency, in his view significant funding has been provided through supplemental funding, including the CARES Act. Some of the forms of this funding and cost shares are different, however, he pointed out examples of other supplemental and CARES Act funding, from other agencies like Department of Treasury (Coronavirus Relief Fund) – $150 billion to state, local and tribal governments for Covid-19 costs, HHS through ASPR, CDC, and CMS, (Medical Care), over $100 billion in funding, HUD (CDBG block grants), and USDA support for nutrition (food). FEMA is coordinating with the other Federal agencies to coordinate benefits and provide information for state and local governments to make decisions on the best use of funding to meet their needs.

Local Government Cost Share Legislation

Also on Friday, Chair of the House Committee on Transportation and Infrastructure Peter DeFazio (D-OR), Chair of the House Committee on Appropriations Nita Lowey (D-NY), Chair of the House Committee on Homeland Security Bennie G. Thompson (D-MS), Chair of the Transportation and Infrastructure Subcommittee on Economic Development, Emergency Management, and Public Buildings Dina Titus (D-NV), Chairwoman of the Appropriations Subcommittee on Homeland Security Lucille Roybal-Allard (D-CA), and Chair of the Homeland Security Subcommittee on Emergency Preparedness, Response, and Communications Donald Payne, Jr. (D-NJ) introduced the COVID Cost Share Adjustment Relief Act of 2020.

This legislation will ensure the Federal government pays 100 percent of the costs of COVID-related FEMA assistance under the emergency and major disaster declarations granted pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act, taking the financial burden off of state, local, tribal, and territorial (SLTT) governments. Typically, SLTT governments pick up 25 percent of the costs, but, with their own response costs up and tax receipts down, the drafters of this legislation feel that it is critical these communities do not emerge from this pandemic swamped by the financial burden of the whole-of-America response necessary to defeat COVID.

FEMA on the Intersection of Hurricane Season and COVID

As Floridians, you’ll find this Axios Article posted yesterday particularly interesting: FEMA braces for COVID-infected hurricane season, by Jonathan Swan. Pete Gaynor, who runs the Federal Emergency Management Agency, is drafting a document whose title sounds like the stuff of horror movies: “COVID-19 Pandemic Operational Guidance for the 2020 Hurricane Season.”

Driving the news: “We’re doing a lot of things that are not necessarily in any playbook that has existed,” Gaynor told me in an interview on Saturday. “In some cases, we write the playbook as we go.”

Behind the scenes: In preparing for the June 1 start of the Atlantic hurricane season, Gaynor must consider challenges beyond what predecessors have faced:

  • How do you evacuate people from hurricane zones while maintaining 6 feet of social distancing?
  • How much extra shelter space will be needed to house people who can no longer safely crowd into schools, auditoriums and community centers?
  • How do you protect the most vulnerable people such as the elderly and those with underlying conditions?
  • Resources already are strained — and so are tensions between many governors and the Trump administration.

The big picture: It’s the first time ever that every U.S. state and territory has simultaneously declared a major disaster.

  • “This pandemic, it is historic, it is unprecedented in many ways for FEMA,” Gaynor said.

One nightmarish prospect: “If we have to evacuate a hospital, that hospital typically would just evacuate the patients,” Gaynor said. “But now we’ve got to make sure they evacuate the patients, the medical equipment like ventilators, pharmaceuticals that allow ventilators to be used on patients in ICUs. All those things now make it more difficult, there’s no doubt about it.”

  • Natural disasters like floods may mean hospitals have to transfer patients sick with COVID-19 to other facilities that will take them.
  • “Locals and states really have to understand some of those challenges and plan for that,” Gaynor said, adding that FEMA will try to help.

Why it matters: It’s not hyperbolic to say that we could face the most dangerous combination of disaster threats in American history this summer.

  • As Hurricane Katrina tragically proved, one bad hurricane can overwhelm the federal government.
  • This year, early forecasts indicate that the Atlantic hurricane season may be worse than usual.
  • Wildfire season is approaching.
  • Earthquakes and floods are always a threat.
  • Even if the pandemic subsides over the summer, experts say it may resurge in a second wave as autumn nears — while hurricane season runs through Nov. 30.
  • Despite all this, Gaynor said he’s “highly confident” FEMA can manage this unprecedented summer.

What’s next: Gaynor says FEMA is preparing for the worst.

  • The agency has taken over vacant office space in downtown Washington, D.C., and set up an additional command center — called a “surge” National Response Coordination Center — for staff across the government to handle the non-COVID catastrophes threatening America this summer.
  • FEMA has ordered 100,000 “human remains pouches” (also known as body bags) that Gaynor hopes he won’t need.

Between the lines: Gaynor has to manage all of this at a time when government resources and workers — not to mention the supply of personal protective equipment — are strained to the extreme. And he will need federal-state cooperation at a time when some governors are so mistrustful of the feds that they say they’re hiding their PPE stockpiles in secure undisclosed locations so the federal government won’t seize them.

  • Several governors, including Colorado’s Jared Polis (D) and Massachusetts’ Charlie Baker (R), have accused the federal government of diverting their supplies of critical equipment to fight COVID-19, including masks and ventilators.
  • Maryland Gov. Larry Hogan (R) was using the Maryland National Guard to protect thousands of coronavirus tests he got for his state from South Korea.
  • When I asked him about this, Gaynor flatly denied the governors’ charges.
  • Earlier Sunday, Hogan said on CNN’s “State of the Union” that “I’m not sure it’s necessary at this point” to keep guarding the tests. “There had been several reports of shipments being intercepted or diverted by the federal government” from other governors and “we wanted to make sure that that didn’t happen,” but FEMA and his state are “all working together. So, we’re — it’s not a concern any longer.”

FEMA’s press secretary Lizzie Litzow added in a statement: “FEMA does not, has not and will not divert orders of personal protective equipment (PPE) from our federal, state and local partners, nor do we have the legal authority to do so. Reports of FEMA commandeering or re-routing such supplies are false.”

  • “If a hospital believes this has happened to them, it should be reported to the governor. If a governor believes that this has happened to their supplies, it should be reported to the FEMA Region.”

The bottom line: Gaynor is encouraging communities to prepare early — to download the FEMA app, which provides preparedness tips, disaster resources and localized weather alerts. And to check out FEMA’s disaster preparedness campaign — — and its coronavirus page,