Of Counsel Cordatis LLP Arlington, Virginia, United States
Congress’s dramatic expansion of the Public Assistance arbitration program in 2018 gave Applicants a right to challenge FEMA decisions on Public Assistance cost, work, facility, and applicant eligibility before a neutral body of arbitrators. Even more importantly, the law eliminated any obligation those arbitrators had to defer to FEMA’s interpretation of its regulations and policy. As a result, FEMA’s PA eligibility rules as applied in arbitration have diverged from those applied in FEMA-internal appeals. This Session will walk-through the consequences of that divergence for applicants seeking to recover Public Assistance costs. This Session will discuss the most important arbitration decisions since the program’s founding, focusing on the six areas of PA eligibility that Applicants most frequently dispute: (1) Covid-19 cost recovery; (2) work/cost documentation; (3) the attribution of damage as a ‘direct’ result of a disaster; (4) cost reasonableness; (5) procedural eligibility; and (6) the proper application of FEMA’s 50% rule. Additionally, this Session will consider how the different Judges of the CBCA deviate from their colleagues in ruling on these critical issues. Since each arbitration panel is free to decide the law for itself, understanding each Judge’s perspective is the most critical––and most frequently overlooked––element of arbitration.
