A.14. HMGP: Appeal Process

An eligible applicant, subapplicant, recipient or subrecipient may appeal any FEMA determination regarding applications or subapplications submitted for assistance under HMGP.^[298] The subjects of these appeals include but are not limited to FEMA’s denial of an applicant/subapplicant eligibility, mitigation plan requirements, application period extensions, EHP considerations, project or plan eligibility, technical feasibility, cost-effectiveness, open space compatibility and closeout determinations and de-obligations. Applicants, subapplicants, recipients or subrecipients may also appeal the placement of conditions on the award and any remedy of non-compliance that FEMA may take, including termination or suspension of the award.

FEMA will only consider written appeals that justify the request for reconsideration.^[299] The appeal must be submitted according to the procedures outlined below. At any point in the appeal process, the recipient may withdraw their appeal by submitting a written request to FEMA and notifying the subapplicant/subrecipient. All second appeal decisions represent FEMA’s final administrative decision.^[300]

The applicant/recipient and/or subapplicant/subrecipient must include the following in an appeal request:

• All relevant documentation supporting their position. Such documentation may include scope of work, budgets, EHP review, technical testimony, purchase receipts, before and/or after photographs and changes to the application or other relevant information that may help FEMA make a final decision.
• The specific amount of assistance (or amounts if there are multiple issues on appeal) in dispute, as applicable.
• Citations to the provisions of law, regulation or policy (applicable to the respective disaster) with which the applicant believes FEMA’s determination was inconsistent.
• Recipient’s recommendation, based on their review of the appeal from the subapplicant/subrecipient.

An appellant is the applicant, subapplicant, recipient or subrecipient that is appealing a FEMA determination. Appellants must submit documentation within 60 calendar days after receiving the initial written notice of FEMA’s determination on the action that is being appealed.^[301]

Whether the appeal originated with the applicant/recipient or with a subapplicant/subrecipient, the appeal must be submitted in writing to the FEMA regional administrator by the recipient. The recipient must forward all appeals from a subapplicant/subrecipient with a written recommendation to the regional administrator within 60 calendar days of receipt of the appeal.^[302]

If either the applicant or recipient submits the appeal after the 60-day deadline, FEMA will deny the appeal as untimely.

Upon receipt of the appeal, FEMA reviews the appeal content and uses the administrative record and the laws, regulations and policies applicable to each case to analyze the appeal. FEMA may request additional information via a Request for Information (RFI) to adequately adjudicate the appeal or make its decision based on the documentation and information provided at the time of appeal submission. Within 90 calendar days of receiving the appeal, FEMA takes one of the following actions:^[303]

• Requests additional information specifying the date FEMA must receive information. Within 90 calendar days of receiving the information (or within 90 calendar days of the expiration of the deadline to respond), FEMA provides the appeal decision to the recipient.
• Submits the appeal to an independent expert or experts for technical review and recommendations. Within 90 calendar days of receiving the technical review recommendations, FEMA provides its appeal decision to the recipient.^[304]

In either case, FEMA provides a written decision to the recipient using a method that confirms receipt (through electronic application systems, return receipt mail, email with read-receipt acknowledgement or other methods that confirm receipt).

If FEMA needs additional information, the agency will determine a date by which the information must be provided. Within 90 calendar days following the receipt of the requested additional information (or 90 calendar days after the information was due), FEMA will notify the recipient in writing of the disposition of the appeal.

FEMA generally issues a RFI when it identifies specific documentation or information that, if provided, might impact the outcome of the appeal or assist the agency in responding adequately to the appeal.

The FEMA regional administrator is the decision-maker on first appeals.^[305] Within 90 calendar days following the receipt of an appeal, FEMA will notify the recipient in writing of either the appeal decision or the need for additional information.

The second appeal provides an opportunity for appellants to dispute the appeal decision made by the regional administrator. The assistant administrator for the Mitigation Directorate is the decision-maker on second appeals.^[306] The assistant administrator’s decision will be the final administrative decision of FEMA.^[307] Figure 11 outlines the second appeal process for HMGP.

Graphic

To begin the second appeal process, appellants must submit documentation to FEMA within 60 calendar days after receiving the initial notice of the action on the first appeal. When the appellant is the subapplicant/subrecipient, the appeal must be submitted to the recipient prior to the expiration of the 60-day period.

The recipient reviews the appeal and prepares a recommendation to submit to the FEMA regional administrator. The appeal and supporting documentation must be forwarded to the regional administrator within 60 calendar days of receipt of the second appeal. When the appellant is the recipient, no recommendation is needed because the appeal acts as its disposition. Otherwise, the recipient acts as the reviewer.

Upon receipt of the appeal package from the recipient, the FEMA regional administrator will review the package for regulatory requirements. Once completed, the regional administrator will forward the appeal, along with a recommendation, to the associate administrator for the Mitigation Directorate.

An appeal verification package confirms that the appellant is eligible for a second appeal. As part of the verification package, the region should prepare the following items to submit to FEMA headquarters:

• A decision letter that documents the initial action taken by the region or recovery office regarding the HMGP application or subapplication precedes the first appeal and usually outlines the basis for denial.
• The set of first appeal documents submitted by the appellant opposing the decision letter.
• The recipient recommendation for first appeal, which documents the recipient’s position on the first appeal (if applicable).
• A notice of the action that documents the first appeal decision of the FEMA regional administrator, which is typically the action disputed in the second appeal.
• The set of second appeal documents submitted by the appellant opposing the notice of the action (first appeal decision).
• An appeal recommendation from the regional administrator and/or recovery office that documents the region’s preliminary review of the second appeal. If the appellant submits supplemental information, the region should note these changes. No matter which office (region or recovery office) provides the second appeal, the recommendation must accompany the appeal submission to FEMA headquarters.

Upon receipt from the region, FEMA headquarters will make an independent assessment of the appeal. If all documentation is included, the assistant administrator for the Mitigation Directorate notifies the recipient in writing of the disposition of the appeal within 90 calendar days. If additional information is needed, regardless of an internal or external request, FEMA headquarters determines a date by which the RFI must be returned. In cases when the appeal requires a highly technical analysis, FEMA headquarters will consult an independent scientific or technical expert on the subject. Once FEMA headquarters has completed the RFI and technical review processes, FEMA headquarters notifies the recipient in writing of the disposition within 90 calendar days. The assistant administrator for the Mitigation Directorate makes the final decision.^[308] If the appeal deals with a mitigation planning subaward, the assistant administrator will coordinate with the National Mitigation Planning program.

A FEMA delay in issuing a decision beyond the applicable 90 or 180 calendar days does not compel the FEMA regional administrator or associate administrator to decide in the appellant’s favor.