October 2022

October 18

• Hurricane Ian: Declaration Updates – Applying for FEMA Public Assistance
  It has now been two weeks since Hurricane Ian made its historic landfall on the west coast of Florida as a Category 4 hurricane, tying with several other storms as the fifth-strongest hurricane on record to make landfall in the contiguous United States. This massive storm moved across the State of Florida and ventured briefly back into the Atlantic Ocean before making a second landfall on the coast of South Carolina as a Category 1 hurricane. Emergency response efforts are continuing at this time, due in large part to the particularly difficult circumstances created for several Florida barrier islands, including the complete destruction of the causeway that previously provided access to Sanibel Island. State and federal officials continue to release information about the ongoing emergency response efforts and resources for recovery.
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• Filing a FEMA Public Assistance Appeal: The Real-Life Saga of Goldilocks and the Three Bears
  Many of us can recall the famous tale of "Goldilocks and the Three Bears": A girl wanders into a home and tries multiple things, rejecting them until she finds the one that is just right. Appealing an unfavorable FEMA Public Assistance determination can make an applicant feel much the same way as Goldilocks treated the porridge. An applicant may appeal any FEMA determination related to an application for, or the provision of, assistance under the Public Assistance Program, but recent appeal decisions demonstrate the importance of filing appeals just right: filing with the proper state recipient within the acceptable filing window.
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• Are You BRIC-ready?
  Notice Announced of Funding Opportunity for Fiscal Year 2022 Building Resilient Infrastructure and Communities Program and Competition is Steep
  The Federal Emergency Management Agency (FEMA) has announced its fiscal year 2022 (FY2022) application period for the Hazard Mitigation Assistance (HMA) Notices of Funding Opportunities (NOFOs) for the new Building Resilient Infrastructure and Communities (BRIC) grant program. The application period commenced on September 30, 2022.
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• COVID-19 PANDEMIC: Extension of PHE and Impact to FEMA Claims
  On October 13, 2022, the Secretary of the U.S. Department of Health and Human Services (HHS), Xavier Becerra, once again renewed the declaration of a Public Health Emergency (PHE) under the Public Health Service Act due to the continued consequences of the Coronavirus Disease 2019 (COVID-19) pandemic. This latest extension, if allowed to remain effective the full 90 days as usual, will mean that the PHE is officially extended into the New Year. However, there are numerous indications that this may be the last such extension and the PHE for the COVID-19 pandemic, first declared on January 31, 2020, may end on January 11, 2023, nearly three years after it began.
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October 6

• New FEMA Clarification Regarding Codes & Standards Requirements
  On September 28, 2022, FEMA issued a memorandum to Regional Administrators clarifying the agency's 2019 list of approved codes, specifications, and standards that may be required for Public Assistance-funded projects.
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September 2022

September 28

• Hurricane Ian: Preparing for Public Assistance
  Our thoughts are with our colleagues, clients, and friends affected by Hurricane Ian as it makes landfall on the west coast of Florida. At this time, safety of residents and protection of critical infrastructure is the chief concern; however, as soon as they are able, both public and nonprofit entities must consider the available resources to help defray costs, including insurance and federal disaster assistance programs.
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September 15

• DEADLINE TODAY: FEMA Produces First Substantive Proposed Approach on Duplication of Benefits for Hospitals
  On September 6, 2022, FEMA publicly released its "Proposed Approach" for dealing with the potential duplication of benefits (DOB) of patient care revenue to public assistance grants. Before this date, FEMA policy statement on this issue was much more general and issued in July as part of the agency's COVID-19 Public Assistance Programmatic Deadlines Policy (Policy). That Policy simply stated that "Recipients and Subrecipients are responsible for ensuring that they do not accept payment for the same dollar twice. Applicants must certify in the Project Application that assistance has not and will not be duplicated." Essentially this required subrecipients to self-certify that no DOB was received similar to the requirements of reporting to U.S. Department of Health and Human Services (HHS) for the Provider Relief Fund.
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September 13

• Tips for Obtaining Reimbursement from FEMA for Your Disaster-Damaged Roof
  As we enter what is historically the most active part of hurricane season, we want to alert our clients and others who may be eligible for FEMA reimbursement of important steps to take before and right after a disaster with respect to damage to roofs. If an applicant does not have extensive documentation of the pre-disaster condition or the post-disaster damage of its roof (in some cases, more than FEMA's policy and program guidance requires), FEMA may deny eligibility of the costs of roof repair or replacement.
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August 2022

August 29

• FEMA Increases Public Assistance Program's Simplified Procedures Small Project Threshold
  FEMA recently revised its regulations regarding the Public Assistance (PA) program that provides grants to state, local, tribal, and territorial governments, as well as eligible private nonprofit organizations, after a presidentially declared disaster to update the monetary threshold when using "simplified procedures."
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April 2022

April 29

• FEMA Seeks Public Comment on Proposed Public Assistance COVID-19 Policy on Deadlines and Overlapping Sources of Funding
  FEMA is now accepting public comment on its draft Coronavirus (COVID-19) Pandemic: Public Assistance Programmatic Deadlines policy. Comments will be accepted through 5 p.m. Eastern on May 24, 2022.
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April 5

• BREAKING: FEMA Sets Deadlines Applicable to Pandemic Claims
  On April 1, 2022, new information was released regarding the final date that Federal Emergency Management Agency (FEMA) will accept new applicants into its Public Assistance (PA) Program and setting a deadline for submission of claims related to costs incurred from the beginning of the pandemic through July 1, 2022. FEMA has yet to issue an official memorandum or statement publicly on these updates, but the information is being distributed through various channels, including through multiple state recipients. We will update this brief as further information is released.
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March 2022

March 2

• UPDATED: President Biden Extends 100 Percent Cost Share for COVID-19 Public Assistance
  On March 1, 2022, President Joe Biden extended the 100 percent federal cost share for Public Assistance through July 1, 2022. In a subsequent advisory announcement from FEMA, the agency announced that after that date, the Federal share of COVID-19 costs will change to 90 percent.
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December 2021

December 20

• Direct Result of a Disaster
  The Federal Emergency Management Agency (FEMA) provides funding under its Public Assistance (PA) program to eligible applicants (states and territorial governments, tribal governments, local governments and certain private non-profits) for the repair, restoration, reconstruction or replacement of facilities damaged or destroyed by major disasters as declared by the President of the United States.
  
  One of the initial thresholds eligible applicants must meet to receive PA funding is establishing that the scope of work is required as a result of a major disaster, i.e., that the work is necessary to repair damages caused by the disaster. Often applicants consider it a mere formality to establish that damage was caused by a major hurricane, tornado or flood – a facility's roof did not leak prior to the storm, but leaks were discovered during the post-storm inspection; roads were passable before the storm, but were severely cracked after extensive debris removal operations took place; or a facility was operational before the storm, but was inoperable after the storm impacted the area. Under these circumstances an applicant may think it is obvious that the damage was a result of the major disaster. Unfortunately, however, it's not always that simple.
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December 16

• Webinar: Smart City Transformation Through ARPA Funds
  In this webinar, we show how your city can apply for American Rescue Plan Act (ARPA) funds and invest them to transform into a "smart city."
  Watch

December 7

• Changes to FEMA's Public Assistance Appeals and Arbitrations Regulation Go Into Effect January 1, 2022
  The Federal Emergency Management Agency's (FEMA) Public Assistance Appeals and Arbitrations regulation at 44 C.F.R. § 206.206 will change on January 1, 2022. Recipients and subrecipients should be prepared for changes in filing deadlines and content requirements to avoid automatic denial.
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• Anatomy of a FEMA Appeal
  An applicant's right to appeal an adverse Federal Emergency Management Agency (FEMA) Determination can be found in Section 423(a) of the Stafford Act, as implemented by FEMA in 44 C.F.R. § 206.206. Paragraph 206.206(a) requires that an applicant make its appeal in writing, through the recipient – usually the state emergency management agency – who then reviews and evaluates the appeal before submission to the FEMA Regional Administrator. The regulation further requires that "the appeal shall contain documented justification supporting the appellant's position, specifying the monetary figure in dispute and the provisions in Federal law, regulation, or policy with which the appellant believes the initial action was inconsistent."
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November 2021

November 15

• New FEMA Thresholds and Indicators for Fiscal Year 2022
  The Stafford Act and Federal Emergency Management Agency (FEMA) regulations require FEMA to adjust several programmatic thresholds and indicators each year to reflect changes in the Consumer Price Index for All Urban Consumers. The new Fiscal Year 2022 thresholds and indicators were published on November 15, 2021 and apply to all major disasters or emergencies declared on or after October 1, 2021.
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November 10

• President Biden Extends 100 Percent Cost Share for COVID-19 Public Assistance
  On November 9, 2021, President Joe Biden extended the 100 percent federal cost share for Public Assistance through April 1, 2022. This may indicate that the incident period and period of performance for the COVID-19 disasters will remain open through that date as well.
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October 2021

October 28

• FEMA Denies Public Assistance to County Government for Contact Tracing, Social Distancing, and Teleworking to Prevent the Spread of COVID-19
  In a recent Second Appeal decision, the Federal Emergency Management Agency (FEMA) denied Scott County, Iowa's (the County) claims for Public Assistance (PA). From March 11-August 20, 2020, the County purchased contract services and equipment to support its contract tracing program and implement social distancing protocols in its facilities. The County requested FEMA PA funding for contract services including information technology support, security, maintenance, and licensing and elevator key card installation. Additionally, the County requested PA funding for computer and communications hardware such as printers, webcams, microphones, adapters and phones.
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September 2021

September 27

• Contracting Under Federal Procurement Requirements After Hurricane Ida
  As impacted public entities and non-profits begin the long road to recovery after Hurricane Ida, it is critical that they comply with important regulatory requirements for federal disaster assistance funding, including procurement requirements. If these requirements are ignored or overlooked, entities that are potentially eligible for reimbursement through the Federal Emergency Management Agency (FEMA) Public Assistance program or other federally funded programs may face additional, avoidable challenges down the road. These can include denials of assistance or retroactive deobligation (claw back) of funding.
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September 13

• Emergency Rule 47: What Insurers and Insureds Need to Know in the Wake of Hurricane Ida
  In response to the catastrophic loss caused by Hurricane Ida and its aftermath, the Louisiana Department of Insurance recently adopted Emergency Rule 47, which provides qualified insureds with various protections and prevents the cancellation, nonrenewal, and non-reinstatement of insurance. During its pendency, Emergency Rule 47 prohibits insurers from cancelling or refusing to renew insurance policies and suspends any such notices that were in effect at the commencement of the Rule. Moreover, Emergency Rule 47 requires that insurers waive various requirements that will provide insureds with more immediate access to health care. This alert will summarize several provisions of Emergency Rule 47 that should be considered by both insureds and insurers in the wake of Hurricane Ida.
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September 9

• Top Ten Louisiana Tips for Hurricane Ida Recovery
  The extensive destruction left by Hurricane Ida is simply astonishing; the trail of impact from South Louisiana all the way through to New York and New Jersey is unprecedented. Recovery from the damage to infrastructure will take years; however, we recognize that right now emergency work is in full swing across Louisiana. The Federal Emergency Management Agency (FEMA) is a critical partner in this road to recovery for eligible applicants, but its programs can be daunting. It is critical that emergency work is done as quickly as possible; however, applicants can be taking considerable risks if they make program errors. FEMA can be very flexible during the emergency process but below are some tips to help ensure compliance with the Public Assistance Program.
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September 1

• Hurricane Ida: Major Disaster Declaration Issued for Louisiana, Recovery Efforts Underway
  Our thoughts remain with our colleagues, clients, and friends impacted by Hurricane Ida as recovery efforts are now underway following this strong Category 4 storm that made landfall on August 29, a date already too familiar for those that lived along the Louisiana and Mississippi coastal region when Hurricane Katrina impacted this same area 16 years ago. At this time, search and rescue efforts, power restoration, and work to address the many impacted health care facilities have priority. However, as soon as they are able, impacted public and non-profit entities must consider the available resources to help defray costs, including insurance and federal disaster assistance programs.
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August 2021

August 17

• FEMA: Extension of Full Federal Funding for Pandemic Costs; Expansion Coming for "Safe Opening and Operation" Policy
  On August 17, President Biden ordered  FEMA to maximize its support for state, local, tribal, and territorial governments' COVID-19 response and recovery. The president authorized FEMA to continue funding otherwise eligible COVID-19-related costs at 100 percent federal cost share through December 31, 2021. The directive will also allow states to receive 100 percent federal reimbursement for costs associated with the "safe opening and operation" of public facilities dating back to January 20, 2020. FEMA released an advisory update on August 17 confirming implementation of President Biden's directive.
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August 16

• State/Tribe/Territory Application Period for FEMA Flood Mitigation Assistance and BRIC Grants To Run September 30, 2021 – January 28, 2022
  On August 9, 2021, the Federal Emergency Management Agency (FEMA) issued a Notice of Funding Opportunity (NOFO) for FY21's Hazard Mitigation Assistance (HMA) grants under the Flood Mitigation Assistance (FMA) and Building Resilient Infrastructure and Communities (BRIC) programs. FEMA's application period will open September 30, 2021 and close January 28, 2022.
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• EDA Publishes NOFOs Worth $3 Billion in American Rescue Plan Act Grants
  On July 22, 2021, the U.S. Economic Development Administration (EDA), a bureau within the U.S. Department of Commerce, announced that it will implement a series of programs, collectively called "Investing in America's Communities," to equitably invest the $3 billion it received from the American Rescue Plan Act. The funds are intended to benefit communities that have been denied full access to economic prosperity and who have been disproportionately impacted by the coronavirus pandemic.
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August 3

• FEMA Updates Policy on Stafford Act § 705
  On June 2, 2021, the Federal Emergency Management Agency (FEMA) issued version 2 of its policy on Stafford Act § 705, Disaster Grant Closeout Procedures. Stafford Act § 705 (42 U.S.C. § 5205) contains two important subsections.
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June 2021

June 2

• FEMA Applicants and American Rescue Plan Fiscal Recovery Fund Recipients Should Know About Updates to Procurement Requirements
  Entities that enter into contracts funded by federal grants like FEMA's Public Assistance program or the Coronavirus State and Local Fiscal Recovery Funds under the American Rescue Plan, must ensure their procurements and contracts meet the requirements of 2 C.F.R. Part 200, also referred to as the "Uniform Rules." Last fall, the Office of Management and Budget revised 2 C.F.R. Part 200, including the procurement standards. These updates apply to awards made or disasters declared after November 12, 2020, although a few provisions are retroactive to August 13, 2020.
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• OIG Reports Lessons Learned from the CARES Act and Advises on American Rescue Plan
  Last year, the CARES Act Authorized the U.S. Department of the Treasury (Treasury) to make $150 billion payments to state, local, territorial, and tribal governments from the Coronavirus Relief Fund (CRF). Treasury issued guidance on how the funds could be spent, but recipients were not required to sign assistance agreements and funds were not considered by the agency to be "grants" subject to most of the requirements of 2 C.F.R. Part 200, the Uniform Administrative requirements, Cost Principles, and Audit Requirements for Federal Awards. With enactment of the American Rescue Plan Act (ARP), Treasury is now poised to pay $350 billion to state, local, territorial, and tribal governments from the Coronavirus State and Local Fiscal Recovery Funds (FRF). On May 17, 2021, the Department of the Treasury Office of Inspector General (OIG) issued a Memorandum entitled American Rescue Plan – Application of Lessons Learned from the Coronavirus Relief Fund, recommending that Treasury implement additional controls as it provides ARP relief.
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May 2021

May 12

• BREAKING: Treasury Releases Guidance for Coronavirus State and Local Fiscal Recovery Fund
  This week, the U.S. Department of the Treasury announced the launch of the Coronavirus State and Local Fiscal Recovery Fund, established by the American Rescue Plan Act of 2021, to provide $350 billion in emergency funding for eligible state, local, territorial, and Tribal governments. According to Treasury's statement accompanying its launch of the program and release of related guidance, the intent is that these funds will "provide a substantial infusion of resources to help turn the tide on the pandemic, address its economic fallout, and lay the foundation for a strong and equitable recovery."
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May 3

• American Rescue Plan: Treasury Coronavirus State and Local Fiscal Recovery Fund
  All eyes are on the U.S. Department of the Treasury as we quickly approach the deadline for distribution of the first tranche of the $350 billion provided under the American Rescue Plan Act for what has been dubbed the State and Local Fiscal Recovery Fund.
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April 2021

April 27

• FEMA Seeks Public Comments on Future Program Delivery by June 21
  On April 22, FEMA released a request for information to the public seeking comments on specific FEMA programs, regulations, collections of information, and policies for the agency to consider in light of recent Executive Orders. All comments should be submitted by Monday, June 21.
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April 24

• BREAKING: SBA Now Advises Shuttered Venue Operator Grant to Re-Open Monday, April 26
  In response to stakeholder feedback about reopening the Shuttered Venue Operators Grant application this weekend, the U.S. Small Business Administration has now advised that the application portal will re-open Monday, April 26, 2021 at 12:00 p.m. EDT.
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April 22

• CBCA Decision – CBCA Strictly Enforces Arbitration Filing Deadlines Under the 2018 Disaster Recovery Reform Act
  Section 1219 of the Disaster Recovery Reform Act of 2018 (DRRA) permits FEMA Public Assistance applicants to pursue binding arbitration to resolve funding disputes with FEMA. The agency has published a Fact Sheet to provide guidance on the process to request arbitration under the DRRA. Eligible applicants must meet the following three criteria to seek arbitration.
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April 6

• FEMA Fact Sheet: Audit-Related Guidance for Entities Receiving FEMA Public Assistance Funds
  The Federal Emergency Management Agency (FEMA) recently released a Fact Sheet to help entities that have received, or expect to receive, funding under FEMA's Public Assistance program properly account for and document their eligible costs. FEMA's guidance comes at a critical point in response to the ongoing COVID-19 pandemic, as many entities are now working to re-open and determining whether they may be eligible to submit some of the resulting increased costs to FEMA for reimbursement. The Fact Sheet includes specific recommendations and "Audit Tips" for managing COVID-19-related project costs.
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March 2021

March 26

• OIG Again Pressures FEMA to Enforce Procurement Rules
  In 2016, the U.S. Department of Homeland Security Office of Inspector General (the "OIG") issued a report entitled "FEMA Can Do More to Improve Public Assistance Grantees' and Subgrantee's Compliance with Federal Procurement Rules." Therein, the OIG noted that over a six year period it had questioned $352.3 million in grant costs due to procurement non-compliance, but that FEMA had subsequently determined 91.3% of those questions costs eligible, often because FEMA excused noncompliance where it deemed costs reasonable. The OIG warned FEMA's enforcement of Federal regulations would fall short, without "financial consequences for noncompliance", including taking money back from grantees and subgrantees.
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March 19

• American Rescue Plan: OMB Memo Gives Insight into Oversight and Compliance Requirements Applicable to Funds
  The Acting Director of the Office of Management and Budget (OMB) has issued a guidance memorandum to all executive departments and agency heads to emphasize the importance of accountability and transparency of federal government spending with respect to assistance provided under the American Rescue Plan Act of 2021 (ARP). OMB's memo, referenced as M-21-20, also imparts a duty to all agencies to maintain effective stewardship of these funds, which includes supporting all Americans, and as such, requires advancing racial equity and supporting underserved communities across our country.
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January 2021

January 8

• Treasury Releases Information on New Emergency Rental Assistance Program: Opt-in by January 12 Deadline
  The U.S. Department of the Treasury just released details of a new Emergency Rental Assistance Program, including a list of eligible recipients for the $25 billion in funding, pursuant to Title V, Section 501, of the Consolidated Appropriations Act of 2021. Treasury must provide funding to any eligible recipients within 30 days of enactment, or by January 26, 2021, so states and local governments that are eligible – and willing – to participate will receive funding quickly and must be ready to begin distributing payments to qualified renters, landlords, and utilities.
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January 5

• New Grant Opportunity for Venue Operators Impacted by the Pandemic
  After much anticipation, the Consolidated Appropriations Act of 2021 was signed into law on December 27, 2020. While funding for vaccination support, the fate of stimulus checks to individuals, and support (or lack thereof) for state and local governments garnered a great deal of attention, there are many different programs and funding streams included within the 5,593-page package. One such new and notable program will provide $15 billion in funding to eligible "shuttered venue operators" in the form of grants administered through the U.S. Small Business Administration.
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January 4

• FEMA Seeks Comment on Proposed Change to Disaster Declaration Criteria
  Just before the holidays, FEMA published an 86-page notice of proposed rulemaking in the Federal Register regarding a change to the "Estimated cost of the assistance" disaster declaration factor that FEMA uses to review a Governor's request for a major disaster under the Public Assistance Program. Any comments to the proposed rule must be submitted by February 12, 2021.
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December 2020

December 31

• CBCA 6822-FEMA; In the Matter of FLORIDA KEYS ELECTRIC COOPERATIVE Emergency Procurement; Reasonable Costs
  Documentation Critical to Florida Utility's FEMA Reimbursement Arbitration
  A Panel consisting of Judges Beardsley, Drummond, and Russell has determined the Florida Keys Electric Cooperative is entitled to partial reimbursement of its costs incurred to establish two full-service base camps to support recovery and power restoration efforts immediately following Hurricane Irma in 2017. Based on data included in the Decision, the Cooperative will recover approximately 84 percent of the costs incurred, compared to a full denial going into the arbitration and a subsequent determination by FEM that approximately 20 percent of the costs were eligible.
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December 28

• Changes to the FEMA Public Assistance Program and Policy Guide: Remedies for Procurement Noncompliance
  The latest version of FEMA's Public Assistance Program and Policy Guide (PAPPG), applicable to incidents declared on or after June 1, 2020, removes language that existed in prior versions confirming FEMA's policy to approve the reasonable cost of eligible work in the case of noncompliance with federal procurement requirements. This change gives FEMA greater latitude to impose harsh penalties, including denial of all contract costs, and indicates FEMA may be doubling down on its propensity to impose strict compliance with these requirements following recent disasters.
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December 4

• FEMA Seeks Comment on Revised Policy Implementing Stafford Act Section 705
  On October 10, 2020, FEMA published a proposed revision to its existing policy for implementation of Stafford Act § 705, Disaster Grant Closeout Procedures. FEMA seeks comment on the proposed policy by December 10, 2020. Stafford Act § 705 has two subsections that give important rights to applicants and thereby limit FEMA's broad discretionary authority in the administration of disaster assistance funding. These provisions have created opportunities for applicants facing deobligation to successfully retain previously awarded funds and thus FEMA's policy to implement them should be of significant interest to disaster-prone state, tribal, and local governments.
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October 2020

October 30

• CBCA Panel Denies Florida Utility's Arbitration Request
  A Panel consisting of Judges Vergilio, Goodman, and Kullberg has denied a request for arbitration filed by St. John's River Utility, Inc. of Florida regarding its claim for assistance following Hurricane Irma in 2017. The Panel determined that the grantee, the Florida Division of Emergency Management (FDEM), untimely submitted St. John's Request for Public Assistance (RPA) and that neither the grantee nor applicant had submitted documentation of sufficient extenuating circumstances to justify a time extension.
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