NCD letter to FEMA regarding public assistance update proposed rule

August 28, 2024

Deanne Criswell
Administrator
Federal Emergency Management Agency
500 C Street, SW
Washington, DC 20024

Dear Administrator Criswell:

I write on behalf of the National Council on Disability (“NCD”). NCD is an independent, bipartisan federal agency charged with providing advice to the President, Congress and federal agencies on matters affecting the lives of people with disabilities. NCD is required to “review and evaluate on a continuing basis policies, programs, practices, and procedures concerning individuals with disabilities conducted or assisted by Federal departments and agencies…in order to assess the effectiveness of such policies, programs, practices, procedures…in meeting the needs of individuals with disabilities.” NCD also “review(s) and evaluate(s) on a continuing basis new and emerging disability policy issues affecting individuals with disabilities at the Federal, State, and local levels.” ⁴

This correspondence is in response to FEMA’s proposed rule to update FEMA’s Public Assistance Regulations [Docket ID FEMA-2023-0005] (RIN 1660-AB09) addressing the query “whether the definition of “private nonprofit (PNP) facility” is sufficiently broad to encompass all PNPs providing service to older adults and persons with disabilities that are eligible to receive public assistance under the Stafford Act.”

FEMA’s proposed definition is indeed broad, but ambiguous in its scope. The definition should explicitly state that Centers for Independent Living (CILs) are eligible PNPs and therefore eligible to receive public assistance funds as described in FEMA’s Public Assistance Program and Policy Guide (PPAPG). If left unchanged, NCD fears that in the throes of a disaster timely and valuable access to resources will continue to remain unreachable and lead to disastrous outcomes for the disability community. There are more than four hundred Centers for Independent Living (CILs) across the country. They are consumer controlled agencies that provide independent living services that are community-based, cross disability, and nonresidential. Many State Plans for Independent Living (SPIL) include emergency preparedness, response, and recovery. Under these State Plans, CILs provide several emergency protective measures deemed eligible for reimbursement pursuant to the PAPPG.

NCD’s 2023 report The Impacts of Extreme Weather Events on People with Disabilities, found disability-led nonprofit organizations, especially CILs, that met the needs of the disability community before, during and after disasters reported difficulty in applying for and receiving reimbursement through FEMA’s Public Assistance Program.

NCD’s 2021 Progress Report discussed the problem with the current PNP definition. “The standing definition of PNPs often exclude facilities such as CILs and similar nonprofits that operate in an open and public manner to ensure that certain populations have the services they need to survive.” NCD recommended in that report that FEMA issue guidance expanding the definition of PNPs to include CILs and other organizations, ensuring they can continue to provide disaster relief services to people with disabilities. In addition to amending the definition of a PNP, NCD recommends adding CILs to the list of examples of PNPs in the PAPPG.

NCD also recommends an extension of time to provide the disability community ample opportunity to respond to this notice of proposed rulemaking (NPRM). NCD learned of this NPRM only last week and without an extension to respond NCD is concerned input from the disability community will be less than fulsome. Pursuant to A Guide to the Rulemaking Process prepared by the Office of the Federal Register “An agency may extend or reopen a comment period when it is not satisfied that it has enough high-quality comments or when the public comments make a good case for adding more time.”

NCD recommends any proposed FEMA policy and/or regulatory changes be provided to the head of FEMA’s Office of Disability Integration and Coordination to determine how it impacts the disability community and disseminate as early as possible to give the disability community time to provide input to proposed changes.

To summarize, NCD 1) recommends FEMA explicitly include CILs in the definition of eligible PNPs, 2) add CILs to the list of examples of eligible PNPs in the PAPPG, 3) extend the comment period, and 4). Any proposed FEMA policy and/or regulatory changes be provided to the head of FEMA’s Office of Disability Integration and Coordination to determine how it impacts the disability community and disseminate as early as possible to give the disability community time to provide input to proposed changes.

NCD values its long-standing relationship and collaboration with FEMA. Amy Nicholas, Senior Attorney Advisor, is available to answer any queries you and your staff may have regarding the above recommendations. Ms. Nicholas can be reached at anicholas@ncd.gov.

Sincerely,

Claudia Gordon
NCD Chair

1 29 U.S.C. §781 (a)(5)-(a)(6).

2 29 U.S.C. § 781(a)(10).

3 A document that indicates how the independent living network will improve independent living services for individuals with disabilities over a 3-year time span.

4 National Council on Disability, The impacts of Extreme Weather Events on People with Disabilities, 2023, https://www.ncd.gov/report/the-impacts-of-extreme-weather-events-on-people-with-disabilities/

5 Federal Register, A Guide to the Rulemaking Process, 2024, https://www.federalregister.gov/uploads/2011/01/the_rulemaking_process.pdf