Much like the Spring tornadoes that tear through the Midwest each year leaving damage in their wake, COVID-19 is silently tearing through the entire United States leaving a wake of destruction that has and will continue to affect state and local governmental entities for months, if not years, to come. On March 13, 2020, the President declared a historic national emergency related to the COVID-19 pandemic which in turn triggered eligibility for public assistance under FEMA Public Assistance—Category “B”—Emergency Protective Measures.[i]The deadline to apply for Public Assistance isApril 12, 2020.

The following will provide some guidance and insight on the application process which is likely new to many who have never had to navigate this complicated regime.

Which Entities are Eligible for Public Assistance?

State, territorial, tribal, and local government entities, and private nonprofit organizations with IRS tax exemptions under 501(c), (d), or (e) are eligible to apply for FEMA public assistance.

As it applies to private nonprofit organizations, eligible organizations may include educational facilities, utilities, emergency facilities, medical facilities, custodial care facilities, museums, zoos, performing arts facilities, community art centers, community centers, libraries, homeless shelters, senior citizen centers, rehabilitation facilities, food banks, daycare centers, among other essential community services.[ii]

What Expenses are Eligible for Reimbursement?

FEMA has announced that certain emergency protective measures taken to respond to the COVID-19 pandemic may be eligible for reimbursement at a 75 percent federal cost share, with limited specific exceptions.[iii]A useful “test” to determine whether the emergency protective measure qualifies for reimbursement is if it (1) eliminates or lessens a threat to lives, public health, or safety; or (2) eliminates or lessens immediate threats of significant additional damage to improved public or private property in a cost-effective manner.

FEMA has identified the following non-exhaustive list of emergency protective measures as potentially reimbursable:

• Management, control and reduction of immediate threats to public health and safety;
• Emergency medical care;
• Medical sheltering;
• Household pet sheltering and containment actions related to household pets in accordance with CDC guidelines;
• Purchase and distribution of food, water, ice, medicine, and other consumable supplies, to include personal protective equipment and hazardous material suits;
• Movement of supplies and persons;
• Security and law enforcement;
• Communications of general health and safety information to the public;
• Search and rescue to locate and recover members of the population requiring assistance; and
• Reimbursement for state, tribe, territory or local government force account overtime costs.
  
  

It should be noted that “emergency protective measures” are only reimbursable to the extent they are performed in response to the COVID-19 pandemic and go above and beyond your entity’s normal operating costs. For example, if you employ full-time security in the normal course of your business, that expense is not reimbursable unless you are hiring additional security in response to the COVID-19 pandemic. Even then, only the difference between your normal operating costs and the increased COVID-19 related operating costs is reimbursable.

How Can We Apply for Public Assistance?

FEMA has instituted a simplified online Public Assistance application process for applicants requesting reimbursement related to COVID-19 expenses.[iv]FEMA has posted instructional videos to YouTubethat explain the Public Assistance application process.

The simplified Public Assistance application process proceeds as follows:

• Attend a virtual applicant briefing;
• Log on or create an account athttps://grantee.fema.gov/;
• Submit a request for Public Assistance and provide the requested documentation (i.e. information regarding work activities, contact information, addresses, limited supporting documentation, and a cost estimate);
• FEMA and the State will then review the documents;
• Sign the final grant; and
• Receive funding.
  
  

Final Recommendations and Key Points

1. Start documenting your emergency protective measure expenses immediately. FEMA requires detailed support for all expenses in order to qualify for Public Assistance. If possible, designate an employee to maintain all of the relevant documentation related to your emergency protective measure expenses. Keep these records indefinitely as audits can occur years after Public Assistance is granted and failure to present adequate documentation may result in disgorgement of the granted funds.
2. Once funds are granted, keep track of how you spend those funds. The granted funds are only to be applied and used for the approved work for which you sought Public Assistance.
3. FEMA sets deadlines for completion of the relevant work. Complete your work before the relevant deadline or apply for the appropriate extension.
4. FEMA will not grant double recovery for your eligible expenses. For instance, if your expenses are covered by an insurance policy and you recover under that policy, your Public Assistance will be reduced by the amount of such recovery. FEMA will need evidence of any insurance recovery when determining the amount of your grant.
5. Reimbursable expenses can occur before, during, and after the emergency event. Meaning, any actions taken in preparation for the COVID-19 pandemic but before the emergency declaration was made may be eligible for reimbursement.
   
   

If you have any questions regarding FEMA Public Assistance, please contact Charles A. LeMoine at [email protected] and Katie J. Welch at [email protected].

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