On March 13, 2020, President Trump declared that the ongoing COVID-19 pandemic warranted an emergency declaration for all states, tribes, territories and the District of Columbia pursuant to the Stafford Act. This declaration makes available Federal Emergency Management Agency (FEMA) Public Assistance funding.
FEMA COVID-19 Public Assistance: Who Can Apply?
Private Nonprofit Organizations (PNPs)
Certain PNPs are eligible to apply for FEMA Public Assistance funds through the state in which it is located. To be eligible, a PNP must have an IRS ruling letter granting its tax-exempt status under the Internal Revenue Code, or documentation from the state showing that the PNP is non-revenue producing and operating as a nonprofit under the laws of that state. For more information, see the April 2, 2020, FEMA COVID-19 Private Nonprofit Organizations Fact Sheet.
In addition, an eligible PNP must also own or operate an eligible facility that provides an eligible service pursuant to FEMA’s rules.
Tribal Government Entities
Tribal governments are eligible to receive FEMA Public Assistance and may choose to apply as either (1) Recipient that enters into a FEMA-Tribe Agreement and awards eligible tribal applicants directly, or (2) Subrecipient that works with the state in requesting and applying for assistance. For more information, see the March 26, 2020, FEMA COVID-19 Assistance for Tribal Governments Fact Sheet.
As a Recipient working directly with FEMA, tribal governments shall work in consultation with the FEMA Regional Recovery Division staff to ensure compliance with all FEMA requirements and responsibilities for administration of the Public Assistance Program. Tribal Recipients will receive assistance directly from FEMA, autonomous from the state.
If a tribal government elects to participate as a Subrecipient of FEMA Public Assistance, it will work in coordination with the state in which it is located and will be required to apply for FEMA Public Assistance through the state.
State and Local Government Entities
State, territorial and local government entities are eligible to apply for FEMA Public Assistance through that entity’s respective state. Eligible government entities are encouraged to reach out to their state Public Assistance Representative through either their state emergency management agency or respective FEMA Regional Office.
What Costs Are Eligible Under FEMA’s Public Assistance Fund?
The Stafford Act (42 U.S.C. 5121-5207) provides that eligible emergency protective measures (also referred to as “Category B” costs) performed by an eligible applicant to respond to COVID-19 may receive reimbursement from the FEMA Public Assistance fund (FEMA Public Assistance Program and Policy Guide, April 2018). These measures must be performed at the direction or guidance of public health officials and must be the legal responsibility of the eligible applicant. For more information, see the March 19, 2020, FEMA COVID-19 Eligible Emergency Protective Measures Fact Sheet.
According to FEMA’s Fact Sheet and Policy Guide, some emergency protective measures that may be eligible for funding include:
- Management, control and reduction of immediate threats to public health and safety
- Emergency medical care
- Medical sheltering (e.g., when existing facilities are reasonably forecasted to become overloaded in the near future and cannot accommodate needs)
Emergency medical care activities may also be eligible for FEMA Public Assistance funding as emergency protective measures. Governmental entities that engage in emergency work and PNPs that own or operate a medical or custodial care facility are eligible for certain cost reimbursement where the work was necessary as a direct result of the COVID-19 emergency. All such emergency medical care costs must be directly related to COVID-19. According to FEMA’s Fact Sheet, the costs for personal protective equipment (PPE) for health care providers treating COVID-19 patients are eligible costs. For more information, see the March 31, 2020, FEMA COVID-19 Emergency Medical Care Fact Sheet.
FEMA Cost Share
Under the President’s national emergency declaration, FEMA Public Assistance for the COVID-19 emergency will be provided at 75% federal/25% non-federal cost share. Some states offer additional cost sharing for the 25% non-federal portion.
Currently, all 50 states, five territories and 23 tribes are working directly with FEMA under emergency declarations specific to each Recipient. For a tribal government to be eligible for FEMA Public Assistance funding as a Recipient, the President must issue a tribe-specific declaration of emergency as provided under the Stafford Act. The Chief Executive of the affected tribal government (or Governor of the state on behalf of the tribal government) must submit this request directly to FEMA. For more information, see the January 2017 FEMA Tribal Declarations Pilot Guidance.
As the number of cases around the world grows, Faegre Drinker’s Coronavirus Resource Center is available to help you understand and assess the legal, regulatory and commercial implications of COVID-19.