May 20, 2015 Workshop 3: Appeal Strategy and Stamina LOCATION: - - PowerPoint PPT Presentation

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May 20, 2015 Workshop 3: Appeal Strategy and Stamina LOCATION: - - PowerPoint PPT Presentation

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H-GAC 2014 Disaster Debris Workshop Series May 20, 2015 Workshop 3: Appeal Strategy and Stamina LOCATION: H-GAC CONFERENCE ROOM A 3555 TIMMONS LANE HOUSTON, TX TIME: 8:30 A.M. TO 12:30 P.M. REFRESHMENTS WILL BE PROVIDED. AGENDA

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SLIDE 1

H-GAC 2014 Disaster Debris Workshop Series

May 20, 2015

Workshop 3: Appeal Strategy and Stamina

LOCATION:

H-GAC CONFERENCE ROOM A 3555 TIMMONS LANE HOUSTON, TX

TIME:

8:30 A.M. TO 12:30 P.M. REFRESHMENTS WILL BE PROVIDED.

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SLIDE 2

AGENDA

  • Introductions and Purpose
  • How Do Appeals Work?
  • Project Pitfalls
  • Break
  • Audit and Closeout
  • Case Studies
  • Questions and Answers with Panelists
  • Adjourn

2

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SLIDE 3

Part 1: Introduction and Purpose

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SLIDE 4

WELCOME

  • Introductions
  • Name
  • Agency

4

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SLIDE 5

PURPOSE

  • Provide an overview of the appeal process.
  • Identify pitfalls to avoid unfavorable

eligibility determinations.

  • Discuss duration and tips for maintaining

stamina.

  • Review appeal case studies and lessons

learned.

5

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SLIDE 6

Part 2: How Do Appeals Work?

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SLIDE 7

PUBLIC ASSISTANCE PROGRAM APPEAL PROCEDURES

  • Manual describes policies,

procedures and responsibilities for FEMA Public Assistance (PA) appeal process

  • Stafford Act
  • Sandy Recovery

Improvement Act (SRIA)

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SLIDE 8

KEY TERMS AND DEFINITIONS

  • Administrative Record
  • All documents and

materials directly or indirectly considered by FEMA in making eligibility determination and subsequent first appeal decision

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Record may include:

  • PWs (all versions)
  • Determination

memoranda

  • Backup documentation
  • Correspondence
  • Photographs
  • Technical reports
  • Other relevant

information

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SLIDE 9

KEY TERMS AND DEFINITIONS

  • Dispute Resolution Pilot Program
  • Program authorized by the SRIA
  • PA Applicant can request alternative dispute

resolution

  • Arbitration by independent review panel

9

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SLIDE 10

KEY TERMS AND DEFINITIONS

  • Dispute Resolution Pilot Program
  • Set forth in 44 C.F

.R. § 206.210

  • Declarations made after October 30, 2012
  • Dispute $1M and more
  • Subject to non-federal cost share
  • First appeal filed and received first decision

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SLIDE 11

KEY TERMS AND DEFINITIONS

  • Public Assistance Determination Memorandum
  • One page synopsis of an eligibility

determination

  • Completed by PA Program staff
  • Intended to concisely and accurately

document and explain determination

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SLIDE 12

ROLES AND RESPONSIBILITIES

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Public Assistance Appeal Branch (PAAB)

  • Overall administration of FEMA appeal system

PA Program staff in FEMA Regional Offices

  • Process appeal

PA Program staff in FEMA Joint Field Offices

  • NOT directly involved with appeal process
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SLIDE 13

KICKOFF MEETING

  • PA Program Staff must provide information on

appeal and dispute resolution processes

  • Informally discuss eligibility issues
  • Discuss prior to eligibility determination
  • Timeline for filing appeal
  • Contact for receiving determinations
  • Contents and structure of first appeal
  • Option to pursue arbitration
  • Information and documentation in 1st appeal

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SLIDE 14

DEVELOPING PROJECT WORKSHEETS

  • PA Program staff
  • Use Project Worksheet Development Guide
  • Develop administrative record
  • Coordinate with Deployable Field Counsel
  • Categorize documents in EMMIE system

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Developing the administrative record will help ensure that project information is robust and complete which will be beneficial in a dispute.

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SLIDE 15

DISCUSSING UNRESOLVED ISSUES

  • When discussions with PA Program Staff are at

an impasse:

  • Consult with FEMA Alternative Dispute

Resolution staff

  • Identify, clarify and attempt to resolve

eligibility issues BEFORE an official eligibility determination is made

15

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SLIDE 16

DISCUSSING UNRESOLVED ISSUES

  • FEMA staff should offer facilitated discussion

when:

  • Appeal would qualify for resolution under

Dispute Resolution Pilot Program

  • Dispute amount is greater that $1M
  • Project is subject to a non-federal cost share

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SLIDE 17

DISCUSSING UNRESOLVED ISSUES

  • Document facilitated discussion:
  • Date discussion was offered
  • Date discussion was conducted
  • Outcomes of the discussion

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SLIDE 18

DISCUSSING UNRESOLVED ISSUES

  • Following facilitated discussion:
  • FEMA has five business days to issue

eligibility determination, OR

  • Provide additional actions to resolve dispute

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SLIDE 19

ELIGIBILITY DETERMINATIONS SUBJECT TO APPEAL

  • 1. Applicant, facility, work, and/or cost is

ineligible.

  • 2. Awarding a PW or amendment of a PW.
  • 3. Denying a request for an alternate project.
  • 4. Denying a request for an improved project.
  • 5. Denying a hazard mitigation proposal.

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SLIDE 20

ELIGIBILITY DETERMINATIONS SUBJECT TO APPEAL

  • 6. Denying a request for a time extension.
  • 7. Denying a request for a net small project
  • verrun.
  • 8. Denying a request for additional funding for

the closeout of a large project.

  • 9. Acting upon an Office of the Inspector

General recommendation.

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SLIDE 21

FIRST APPEAL

  • Must contain documented justification

supporting the appeal position

  • Specify monetary figure in dispute
  • Cite provision in federal law or policy with

which the determination was inconsistent

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SLIDE 22

FIRST APPEAL

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The opportunity to provide documentation and information is at the first appeal stage. FEMA will NOT accept additional materials after it issues a first appeal decision.

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SLIDE 23

APPEAL TIMELINE

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Applicant has 60 days to submit appeal Administrative officer has 90 days to respond with decision First appeal goes to FEMA Regional Administrator Second appeal goes to FEMA’s Assistant Administrator for Recovery

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SLIDE 24

ADMINISTRATIVE RECORD CHECKLIST

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  • Handout
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SLIDE 25

Part 3: Project Pitfalls

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SLIDE 26

KEY STEPS IN PUBLIC ASSISTANCE PROCESS

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GOVERNOR’S REQUEST PRELIMINARY DAMAGE ASSESSMENT DISASTER EVENT DISASTER DECLARATION REQUEST FOR PUBLIC ASSISTANCE KICKOFF MEETING APPLICANTS’ BRIEFING INITIATE FEMA PROGRAMS GRANTEE, SUBGRANTEE OBLIGATION PROJECT REVIEW PROJECT CLOSEOUT PROJECT FORMULATION DISASTER CLOSEOUT

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SLIDE 27

PRELIMINARY DAMAGE ASSESSMENT

  • Damage assessment teams
  • Information collection
  • Correspondence with FEMA
  • Plan for audit in advance

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Documentation:

  • Damage reports
  • Photos
  • Deployment schedule
  • Damage assessment

forms

  • Disaster summary
  • Record of

communication

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SLIDE 28

DISASTER DECLARATION

  • Pre disaster preparations
  • Declaration process
  • Correspondence with FEMA

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Documentation:

  • Chronological

summary

  • Description of

damage

  • Background
  • Situation
  • Special

circumstances

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SLIDE 29

OPERATIONS

  • Force account labor
  • Force account equipment
  • Overtime procedures
  • Previous implementation

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Documentation:

  • Timesheets
  • Daily logs
  • ICS forms
  • Position descriptions
  • Resource types
  • Compensation

procedures

  • Documentation of

implementation in previous events

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SLIDE 30

PROCUREMENT

  • Pre qualified vendors
  • Disadvantaged business

enterprise participation

  • Competitive bid process
  • Emergency procurement

procedures

  • Previous implementation

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Documentation:

  • Procurement

procedures for normal and emergency

  • perations
  • Bid solicitation and

advertisement

  • RFP documents
  • Documentation of

implementation of emergency procedures

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SLIDE 31

EMERGENCY ROAD CLEARING

  • Road clearing teams
  • Force account

documentation

  • Contracted services/time

and materials contracts

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Documentation:

  • Priority road lists
  • Timesheets,

equipment logs

  • Contractor invoices
  • Procurement scope
  • f work
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SLIDE 32

PUBLIC INFORMATION

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Documentation:

  • Press releases
  • Set out procedures
  • Call center

documentation

  • Schedule for pass

completion

  • Public notices
  • Providing information to

the whole community

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SLIDE 33

SPECIAL DEBRIS PROGRAMS

  • Right of way collection
  • Private property debris

removal

  • Waterway
  • Hazardous limbs and

stumps

  • Derelict vessels

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Documentation:

  • Health and safety

procedures

  • Public notices
  • Priority road lists
  • Maintenance and

jurisdictional records

  • Monitoring

documentation

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SLIDE 34

PROJECT WORKSHEET COMPONENTS

  • Disaster details
  • Applicant details
  • Project details
  • Key staff
  • State info
  • PW package

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Documentation:

  • Project worksheet
  • DDD-Scope of work continuation
  • Scope notes
  • Cost continuation
  • Special considerations
  • Hazard mitigation proposal
  • Direct admin costs
  • Force account summary
  • Payroll data
  • Fringe benefits
  • Labor
  • Equipment inventory
  • Narrative
  • Exit briefing
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SLIDE 35

APPEAL ANALYST CHECKLIST

  • Handout

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Documentation:

  • All documentation

and information must be submitted with the first appeal

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SLIDE 36

BREAK

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SLIDE 37

Part 4: Audits and Closeout

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SLIDE 38

PROJECT CLOSEOUT/AUDITS

  • Increased documentation requirements
  • Must use technology to support real time

audits

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SLIDE 39

PROJECT CLOSEOUT/AUDITS

  • Purpose is to clarify

all recovery work has been completed

  • Appeal have been

resolved

  • Eligible costs can be

reimbursed

  • Last step in PA

Process

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SLIDE 40

PROJECT CLOSEOUT/AUDITS

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  • FEMA
  • Field audits
  • Project Worksheet review/approval
  • State
  • Closeout audits
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SLIDE 41

PROJECT CLOSEOUT/AUDITS

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  • Department of Homeland Security (DHS) Office
  • f Emergency Management Oversight
  • Immediate
  • Capacity audit – 3 months to 1 year
  • Early warning audit
  • Testimonial audit
  • Program audit
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SLIDE 42

PROJECT CLOSEOUT/AUDITS

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  • Office of Inspector General (OIG)
  • Final Audits
  • 5 years
  • 10 years
  • 20 years
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SLIDE 43

PROJECT CLOSEOUT/AUDITS

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  • How does DHS select applicants for audit?
  • Congressionally mandated
  • Current or potential dollar magnitude
  • Congressional, state or FEMA requests
  • Reports of allegations of impropriety
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SLIDE 44

RECENT OIG REPORTS

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  • OIG Report #1
  • Subgrantee had employee timecards and payroll

records to support cost but did not have activity logs to indicate what employees were doing

  • Claiming equipment use on Thanksgiving;

however, no records of any township employee working on that holiday

  • Township purchased equipment (computer) but

had no record of using the computer for debris removal activities

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SLIDE 45

RECENT OIG REPORTS

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  • OIG Report #2
  • Subgrantee accepted funding for debris removal

prior to entering into an agreement with the County to remove debris on Subgrantee maintained roads

  • Subgrantee could not support cost of time and

materials contractors (no time sheets or equipment activity logs)

  • For the debris removal work that County did

manage, there were no contractor invoices or load tickets to support the claims

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SLIDE 46

RECENT OIG REPORTS

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  • OIG Report #3
  • FEMA incorrectly told applicants that they

needed to follow state law or their own contracting procedures – this was incomplete information

  • Local governments can use their own contracting

procedures ONLY if their procedures follow federal guidelines

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SLIDE 47

Part 5: Case Studies

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SLIDE 48

PORT OF GALVESTON

  • 705.(c)
  • Gulf Copper final 2nd appeal decision pending,

$1.1M

  • Gulf Copper Plate Shop 1st appeal decision

pending, $674K

  • Pelican Island repair potential, $4.3M

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SLIDE 49

PORT OF GALVESTON

  • Insurance
  • 67 PWs de-obligated for insurance

review/duplication of benefits, $23M

  • Incorrect application of insurance by FEMA

49

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SLIDE 50

LOCAL SCHOOL DISTRICT

  • Overview
  • Large local school

district impacted by Hurricane Ike

  • Debris and damage to

buildings

  • Urgency to reopen

schools

  • Contractor conducted

debris removal as part of disaster services

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SLIDE 51

TIMELINE

  • 09/13/08 – Hurricane Ike makes landfall
  • 09/18/08 – Debris Removal Crews Start Work
  • 09/29/08 – School District Reopens
  • Fall 2008/Winter 2009 – School District Requests

Back-Up from Contractor

  • Sept. 2009 – FEMA denies initial claim of $1.4mm

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SLIDE 52

TIMELINE

  • April 2010 – School District Appeals
  • Dec. 2010 – Appeal Accepted - ~$300k
  • Sept. 2012/March 2013 – Audit Performed
  • April 2013 – Audit Report
  • Sept. 2013 – PW Closeout and Final Payment

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SLIDE 53

FEMA’S ISSUES WITH DEBRIS REMOVAL PROGRAM

  • Alleged contractor improprieties
  • Applicant failed to monitor debris removal

program = no second source of documentation

  • No load tickets at loading sites = impossible

to determine debris origin

  • No certification or individual numbering of

debris trucks = no actual capacity verifications or delivery time audits

  • Applicant used T&M contract, which is most

monitoring intensive, but did not monitor

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SLIDE 54

OUTCOME

  • Debris removed quickly
  • School District was one of first to reopen

after Hurricane Ike despite direct hit

  • School District commended Contractor for

quality of work

  • School District only reimbursed ~$300k for

$1.4 mm worth of work

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SLIDE 55

Part 6: Question and Answers with Panelists

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SLIDE 56

QUESTIONS FOR PANELISTS

  • Appeal process
  • Project pitfalls
  • Audit and closeout
  • Case studies

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SLIDE 57

Part 7: Next Steps/Adjourn

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SLIDE 58

QUESTIONS?

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SLIDE 59

NEXT STEPS

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Workshop Date Workshop 4: Advanced Technology in Debris Management June 23, 2015

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SLIDE 60

ADJOURN

Thank you!

John Buri

Director, Post Disaster Programs Tetra Tech (713) 737-5763 john.buri@tetratech.com

Asad Kahn

Senior Project Manager, Post Disaster Programs Tetra Tech (954) 243-1717 asad.khan@tetratech.com

Sean McChristian

Porter Hedges LLP www.porterhedges.com

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