Texas Housers Issues Public Comment on FEMA Notice

WASHINGTON, Aug. 1 -- Julia Orduna, community navigator in disaster recovery at Texas Housers, Austin, has issued a public comment on the Federal Emergency Management Agency notice entitled "Request for Information on FEMA Programs, Regulations, and Policies". The comment was posted on July 22, 2021:

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Texas Housers (incorporated as Texas Low Income Housing Information Service) is a Texas, IRS classified 501(c)3 nonprofit organization incorporated in 1988. It operates from offices in Houston, Austin and San Antonio. The mission of Texas Housers is to support low-income Texans' efforts to achieve the American dream of a decent, affordable home in a quality neighborhood.

Texas Housers has been extensively involved with state and local government and disaster survivors during Hurricanes Rita, Dolly, Ike and Harvey to make recovery successful. Our staff works to understand the policies and practices of government agencies involved with disaster recovery and relief and the disaster recovery experience of survivors with low incomes, especially focusing on issues of racial equity.

We applaud the Biden Administration's attention to racial equity and environmental justice in the administration of FEMA programs demonstrated through this request for comments. In approaching this topic, it is important to first appreciate that, in our experience, many disaster survivors are people of color. This is largely because of past government and private discrimination has forced the geographic concentration of people of color into low-lying, floodprone areas that often lack publicly funded and maintained storm water protection. These neighborhoods are often in lower-property value areas which affects the residents ability to obtain an adequate level of compensation to rebuild their homes from FEMA's property value based qualification and compensation approach. People of color, a vastly overrepresented amount of survivors with low incomes, are thus doubly disadvantaged by residential isolation in high disaster impact risk areas and by having lower incomes in general.

As observers of and participants in the federal, state and local disaster recovery process since 2008, Texas Housers has seen that in many aspects the recovery process is racially discriminatory. We have observed FEMA Individual Assistance (IA) and Public Assistance (PA) benefits administered in a manner that discriminates both directly and through disparate racial impact against survivors and communities of color. We have also seen FEMA PA funds misused when cities and states deny or steer away FEMA and HUD recovery and mitigation benefits from low-income communities of color. Thus denied equal access to federal FEMA benefits, far too many people of color and other marginalized populations have been forced to return to racially segregated, high disaster risk, disaster exposed areas that are unmitigated.

In the regulatory and bureaucratic systems that have been established to administer disaster assistance programs, too often we lose sight of the goal. Texas Housers, along with state, and local providers, advocates and disaster survivors, have developed seven principles for disaster recovery.

1. Securing help from government of all levels is accessible, understandable and timely.

2. Everyone in need receives safe, temporary, accessible housing where they can reconnect with family and community.

3. Displaced people have access to all the resources they need to recover housing, personal property and transportation; disaster rebuilding jobs and contracts are locally sourced and provide fair wages.

4. Everyone is fairly assisted to fully and promptly recover through transparent and accountable programs and compliance with civil rights laws, with survivors having a say in the way assistance is provided.

5. All homeowners are able to quickly repair or rebuild in safe, quality neighborhoods of their choice that fit the needs of their families.

6. Renters quickly get quality, affordable, accessible rental property in safe, quality neighborhoods of their choice that fits the needs of their families.

7. All neighborhoods are free from environmental hazards, have equal quality public infrastructure and are safe and resilient.

There are four key recommendations in our comments:

1. Administer the FEMA IA program through a "trauma-informed" approach to meet the specific needs of low-income and marginalized survivors.

2. Correct policies and practices that unfairly deny benefits to two traditionally excluded populations: low income renters and very low-income homeowners.

3. Address the effect of residential racial segregation on the impacted population in a disaster and ensure that federal, state and city program administration includes actions to overcome the forced isolation of people of color and other impacted populations in undesirable neighborhoods.

4. Collect data on disaster impacted households and those receiving assistance to ensure federal benefits are equitably made available to people of color by FEMA, states and local governments.

In this invitation for comment, FEMA poses 11 general questions. We will organize our comments around these questions. Texas Housers will provide comments to eight of those questions.

(FEMA QUESTION 1) Are there FEMA programs, regulations, and/or policies that perpetuate systemic barriers to opportunities and benefits for people of color and/or other underserved groups as defined in Executive Order 13985 and, if so, what are they?

How can those programs, regulations, and/or policies be modified, expanded, streamlined, or repealed to deliver resources and benefits more equitably?

There are FEMA programs, regulations, and/or policies that perpetuate systemic barriers to opportunities and benefits for people of color and/or other underserved groups as defined in Executive Order 13985. We will discuss some of those programs, regulations and policies below and propose solutions to deliver resources and benefits more equitably.

A. Administer IA programs through a trauma-informed approach. This first comment may be the most difficult for FEMA to act on because it requires a culture change. We are asking FEMA to address inequities in the experience of individuals seeking FEMA assistance. FEMA currently administers IA programs in the standardized, bureaucratized manner of a government agency. FEMA needs to modify this approach when dealing with low-income and other marginalized and underserved populations. FEMA must stop administering disaster assistance like it is the post office or a government benefits agency and instead adopt a "trauma-informed" approach to program administration. The disaster experience of people with low-incomes, who are disproportionately people of color and marginalized individuals, it's substantially different from people with higher incomes. In particular, the ability to deal with bureaucratic systems is significantly different. When survivors of a disaster interact with FEMA, most have not recovered from the traumatic effects of the disaster. For many, the trams of disaster is ongoing. Their lives are no longer intact, their homes and possessions are destroyed, and it will take months to years to become whole, if ever. A trauma-informed approach recognizes and adapts to this reality in the same way professional staff in other fields who deal with trauma survivors (emergency room workers, behavioral health specialist, etc.) use their best practices to interact with the people they encounter. A FEMA trauma-informed approach requires a number of changes in programs and practices, many, but not all outlined in our comments below. Some of these changes include assigning a unique, permanent case worker to each applicant, employing skills of social work, providing low-income survivors extra assistance to secure documents and complete applications, extending deadlines for applicants who need it, providing more one-on-one support, providing information and advice to applicants in their native languages, offering alternatives to online portals that some applicants cannot access or navigate, and many more. There have been a number of studies done since Hurricane Katrina that detail this approach. Implementing it should be the core of FEMA's response to the President's Executive Order.

B. Extend application deadlines, IA benefits, and temporary housing for households whose lives are disrupted for long periods. Low-income and other marginalized and underserved populations (and hence survivors of color) often experience longer-term disruptions to their lives than other survivors. FEMA should not operate under an assumption that all survivors have equal time and access to resources to complete the documentation FEMA requires for applicants to collect. Further, these populations may need benefits in the form of temporary housing and cash support for considerably longer periods of time than the general population. The supply of low-rent rental housing across that nation is dramatically less than that for middle-income populations. In Houston for example, National Low Income Housing Coalition's (NLIHC) report The Gap reports that there are fewer than 19 affordable and available renter housing units for every 100 households earning at or below 30% of the area median family income. There are more than 100 such units available for every 100 households earning 80% or more than the area median family income. When FEMA sets a deadline to the end of temporary housing assistance following a disaster, the impact of those families with income below 30% area median family income is much more traumatic than the impact on middle-income households. This is an example of the need for a trauma-informed process. Similar inequities based on income are experienced in the application process for FEMA assistance. Many survivors lack access to internet, scanners, fax, or computers, as well as lacking accessibility to documents and bills, unlike people who are not in disaster mode. Page 11 of the Individual Assistance Program and Policy Guide, Version 1.1 (IAPPG) shares a timeline of IA programs. Many application windows close 30 or 60 days after the disaster declaration. It may take residents days to weeks to be able to return to their home post-disaster, much less find the bandwidth to fulfill all the application requirements in bureaucratic timelines. Extended comments about applicant barriers can be found in questions 6 and 10.

C. Under assessment of IA needs of renters with low-incomes. FEMA data collects both the real property and personal property loss of homeowners, but only determines the IA needs of renters based on their personal property loss. The only programs that provide assistance to renters ignore substantial unmet housing needs for renter direct financial assistance. As noted above, the housing needs of low-income (and generally people of color) are many times greater than middle-income survivors. In an analysis of FEMA's Harvey allocations, Texas Housers found that though renters and owners make up roughly equal percentages of the total registrations that FEMA received for IA, more owners received the inspections that are necessary to qualify for cash assistance than renters. Of total awarded applicants, 84% of Individual and Household Programs (IHP) assistance was received by owners and only 16% was offered to renters in Texas. For renters, the breakdown of IHP designations was 0% for "Repair / Replacement" (renters are not eligible for this type of assistance, as they do not own the structure), 34% for "Rent" and 66% "Other Needs". The average IHP FEMA provided to a renter household was only $1,765 per month. Renters seeking to recover damaged person property property and vehicles are required to submit an application for a Small Business Administration (SBA) loan before being considered for FEMA IA grants. This can delay their application process, especially as the SBA has been found to have experienced major backlogs during the Harvey hurricane season. Exclusion of FEMA data for the actual damage suffered by rental units and using only a personal property standard to show unmet renter need severely undercounts renter damages by FEMA, which in turn will be overlooked in the allocation of disaster recovery funding streams and underrepresented in the distribution of Community Development Block Grant - Disaster Recovery (CDBG-DR) funding between home repair and increasing affordable housing stock. FEMA should either increase the levels of direct assistance provided to renter households or adjust the temporary housing benefits to provide rent assistance over a much longer period of time to allow renters to recover in the tight affordable housing markets. CDBG-DR distribution concerns are further explained in 1G & 1H.

D. Survivors overburdened in the IA application process. Applying a trauma-informed lens to programs and policies will assist FEMA in understanding the cost and difficulty that survivors face in navigating the FEMA IA programs. Access to time and money are lower for many low-income and other marginalized and underserved populations. These low-income survivors living with the consequences of disaster are financially- and resource-stressed even before the disaster. Collecting all the information that is required to apply for IA becomes an arduous ordeal for them. Many do not have time to be calling other government agencies to track down paperwork or have extra money to pay for notary services, faxing services, printing services, and other requirements that require financial support. We will touch more on the overburden placed upon applicants in question 6 and the need to collaborate across government agencies in question 5.

E. IA policies and rules reinforce racial residential segregation. Serious efforts must be directed to overcome the extreme levels of racial and economic housing segregation that exists in low-income, polluting industry fenceline communities that have felt the brunt of disaster impacts in Texas. Simply rebuilding housing in place, and thus limiting low income and minority households to their existing neighborhoods, will reinforce existing segregated housing patterns and will be an explicit failure to meet the requirement under the Fair Housing Act and Executive Orders to "affirmatively further fair housing" that should be followed by all governmental entities using disaster recovery funds. The recovery program is legally required to permit people of color a choice to move to neighborhoods that are safer, with better schools and access to jobs. To date FEMA has failed to even consider these requirements much less comply with these laws. Residential choice and persistent patterns of racial segregation are systemic barriers to opportunity rooted in racism. Disaster recovery is fundamentally about having a decent home in a safe neighborhood. The choice of where to live must be built into FEMA recovery programs. Housing choice segregation is further expanded in 3A.

F. PA policies and rules reinforce racial residential segregation and fail to prevent discrimination by cities and states in project selection. The pernicious effects of residential racial segregation are not just seen in FEMA's IA program. They can also be found in the grant programs that FEMA makes available to state and local governments. An essential element of racial equity is the selection of locations that state and local governments choose to receive FEMA PA grant funds. In Texas, our experience has shown that state and local government agencies routinely elect to expand FEMA PA funds in neighborhoods that are overwhelmingly white and that are often neighborhoods with significantly smaller populations of low income households. It is not uncommon to see FEMA PA Funds directed to neighborhoods that were less impacted by the disaster while neighborhoods of extremely low income people of color are excluded. We have never seen FEMA undertake any sort of analysis with regards to the civil rights or fair housing impact of the applications it receives from state and local governments for PA funds. This is inconsistent with federal law, and FEMA should review each application for PA for compliance with Title VI of the Civil Rights Act of 1964 as well as Title VIII of the Civil Rights Act of 1968 (Fair Housing Act). As it reviews an application received from a state or city, FEMA should do an equity analysis. At the least, this analysis should look at the geographic and demographic characteristics of applications for IA that FEMA has received and compare this with the areas which the state or city proposes just served with a PA grant. There should be an equitable use of these funds in which people of color are, at a minimum, proportionally served by the PA grant to the ratio of the population determined to have been impacted by the disaster. FEMA should also establish a hierarchy of needs for the use of PA funds in which projects are required to demonstrate that their grants are prioritizing critical health and safety concerns over the use of FEMA funds to engage in general, more routine modernization and improvement activities. We elaborate further the need to support civil rights concerns in 3A.

G. FEMA-determined household damage data is critical data, yet the FEMA data is often incomplete, biased and inaccurate. While FEMA data is often the only available data source of disaster damages, it systematically undercounts hurricane survivors with low- or moderate-incomes and, in effect, people of color effectively undermining the quality and accuracy of the data. Studies have shown a significant non-participation rate in the FEMA IA program stemming from the past problems of the program, immigrants fear of interaction with government and other factors. More robust outreach is needed to address this. FEMA should undertake outreach and communications efforts to reach all survivors; include door-to-door canvassing and special outreach efforts to hard-to-reach populations; and distribute easily understandable multilingual materials. The strategy should identify hard-to-reach populations including language minorities. It should employ linguistically and culturally appropriate messaging strategies. FEMA, along with the government entities involved in recovery should coordinate the production of materials and the process for ongoing communications to keep disaster survivors fully informed of where they stand in the IA application and in follow-up recovery program processes including CDBG-DR. The outreach and communications strategy should incorporate door-to-door outreach to low-income communities and marginalized populations including seniors and persons with severe disabilities who either do not have information about the resources available or are unable to apply for the resources. FEMA should employ alternative survey techniques to identify characteristics of under-applying populations and develop strategies to reach these populations. FEMA should develop and employ a methodology to report to users of its data for future long-term disaster recovery an estimate of the populations that were impacted by the disaster but did not make application for IA. We further address the concerns of data collection as an access point to the entire disaster recovery mechanism in 5D.

H. FEMA data is not only for IA eligibility but for the subsequent allocation of much greater amounts of CDBG-DR for long term recovery. To determine unmet needs of survivors of disaster in establishing CDBG-DR programs, making regional allocations of funds, and designing and targeting programs, many states such as Texas rely on FEMA household damage data. To ensure that rebuilding begins as quickly as possible, it is critical that the initial damage estimation be carried out in a timely manner because many of the initial response activities are dependent upon this assessment. The initial damage assessment is crucial for the authorities to get a sense for the scale of the disaster- it should be a replacement cost damage assessment. While information needs to be accurate, there does not need to be a focus on precision. A distinction should also be made between structural damage and other types of damage, such as flood damage. Current FEMA procedures are summarized as percentage damage estimates which "do not adequately capture variation in types and level of damage" (Bates, 2007). "Questionable methodology combined with inspectors unfamiliar with the area's architecture and pre-storm conditions" led to inaccurate damage estimates in the aftermath of Hurricane Katrina (Bates, 2007).

I. FEMA's assessment process leads to too many wrongful denials. In 2017, the NLIHC was able to obtain FEMA Harvey application data. Analysis of the data shows that by October 13, over 800,000 applications had been submitted; however, only 321,244 had been approved for IA. In 2018, Texas Housers acquired FEMA denial rate data for homeowners and renters who applied for IA during Hurricane Harvey through a protracted FOIA request. The denial rate for all homeowner applicants was 26%, but those making less than $15K/year had a denial rate of 46%. As a household's income climbed, their likelihood of being approved by FEMA also increased. Dramatically, those who reported their income as over $70K/year had only a 10% FEMA determined ineligibility rate. FEMA has resisted making data like this available to organizations like Texas Housers who wish to monitor the data for possible civil rights violations. This is in addition to a general lack of transparency around FEMA's inspection and eligibility determination process. In the limited instances and limited extent of the data made available, Texas Housers has noted that the denial codes offer only vague evidence as to what has gone wrong with applications from renters and low-income homeowners that have produced these anomalous denial rates. For example, more than ten thousand Hurricane Harvey households were denied because the FEMA inspector wasn't able to contact them. A full 95% of homeowners denied for "Failed Identity Verification" make less than $30K/year. For renters in the same income bracket, the number was denied on these basis was even higher. Other disproportionately common problems for lower-income applicants include the applicant's identity couldn't be verified by FEMA (meaning their social security number and name weren't matched in FEMA's system); their application was either determined by FEMA to be a duplicate or there was something that caused FEMA to flag it for duplicate review; the applicant couldn't prove that they lived in the home at the time of the disaster; the inspector wasn't able to contact the applicant to complete an inspection of their home; and the applicant missed their inspection appointment. These are huge numbers and denial rates among low-income homeowners and renters who are largely people of color and other marginalized persons. FEMA refuses to release data that would allow for a determination if a significant number of these denials were made incorrectly. We suggest that that is indeed the case. In any event, FEMA should examine the data and account for these disturbing anomalies. We expand on the issue of FEMA inspections in 4F.

J. "Deferred maintenance" IA denials systemically exclude low-income and other marginalized and underserved populations. FEMA's policy of refusing to assist low-income households whose homes were in need of repairs before a hurricane (termed "deferred maintenance") came to light in the wake of hurricanes Dolly and Ike in 2008, leaving 115,000 Texas elderly, disabled and low-wage homeowners without the help they need to repair their homes. The greatest amount of work on this problem has been done in South Texas among impoverished Mexican-Americans living in subdivisions lacking stormwater infrastructure locally referred to as "colonia." It is important to understand the history of this systematic denial of low-income homeowners during previous hurricanes. Though inspectors classified the denial reason as "insufficient damage," homeowners were told often that the condition of their home prior to the storm was so bad that there was no way to tell whether the storms had caused the damage apparent at the time of inspection. Inspectors called this "deferred maintenance." This barred people from receiving rebuilding help who likely had too few assets and meager savings to keep their home in tiptop shape. FEMA has a policy that discriminates against people because they are poor. Texas Housers' partners La Union del Pueblo Entero and Texas RioGrande Legal Aid filed the lawsuit that resulted in an eight-year legal battle. The federal court ruled that FEMA violated the law by using a secret rule to deny more than 24,000 families in the Texas Rio Grande Valley housing repair assistance. These practices are illustrated in eleven stories we report here: https://texashousers.org/2008/11/20/eleven-texas-families-stories-document-femasillegal-and-systemic-discrimination-against-the-poor/

K. Denial of IA based on non-traditional ownership structures results in disparate impact on low-income and other marginalized and underserved populations. Low-income households may not always have a traditional homeownership title because they purchase their home with no traditional financing methods such as contract for deed, deed in lieu, lease-option sale, heirship estates and various informal owner finance agreements that result in no transfer document being filed on the county deed records. FEMA needs to make clear that these forms of ownership are not bars to receiving assistance. That information should be conveyed upfront to FEMA applicants and FEMA workers should be trained in this policy to prevent denials or delays occasioned by denial appeals.

L. FEMA Verified Loss (FVL) fails to fully reflect actual loss. Some of the lowest-income Hurricane Harvey survivors living in massively substandard conditions have been denied CDBG-DR housing assistance (especially affordable rental housing) because the bureaucratic eligibility process has determined they have "no unmet need" according to FEMA. In the role of administering the CDBG-DR home rebuilding

program, state agencies base eligibility calculations on what is called "FEMA Verified Loss" -- the loss that a hurricane survivor sustained, according to FEMA. This determination is based on the storm's impact solely on people's property, rather than giving considerations to the loss of housing by renters. According to IAPPG p 96, FVL is calculated as a "verified loss-amount of at least $12 per square foot." In order to be considered an unmet need in this methodology, a household's FVL must be at least $8,000 for owners and $2,000 for renters. In Hurricane Harvey, 58% of FEMA-eligible extremely low-income renters and 54% of renters at 30-50% of the area median income are below this FEMA threshold and thus not considered to have unmet needs during Hurricane Harvey. Homeowners with clearly damaged homes have been told they have a FVL of $0 and therefore, do not have any unmet need and do not qualify for assistance. This methodology further widens the gap in ability to recover between low-income survivors and those well off because, in administering CDBG-DR, the state uses this data to apply for assistance, allocate the funds regionally, as well as divide the allocated funding between homeowners and renters. We are aware that FEMA's reaction to this might be to state that this is a problem of the states misusing FEMA data. We would reject that argument because FEMA is the only authoritative data source available to establish individual needs as a result of the disaster. In other words, it's the only data available and follow up recovery programs are going to use it. Second, such an argument would be an example of FEMA "siloing" it's programs off from subsequent recovery programs like CDBG-DR. If the goal is to help Americans recover from disaster, FEMA needs to be cognizant of the importance of its role in presenting data that can be useful to achieve the recovery. We recommend that FEMA analysts utilize an equity framework and instead relate a household's FVL to a household's income in order to consider the level of impact on a household, rather than only the impact on their property. We would point to Issue #2 of our comments submitted to state of Texas Hurricane Harvey Action Plan to further breakdown the methodology and recommendations found here: https://www.scribd.com/document/372077298/Supplemental-Comments-to-GLO-DraftAction-Plan-2-20-18

View full comment at: https://downloads.regulations.gov/FEMA-2021-0011-0277/attachment_1.pdf

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The notice can be viewed at: https://www.regulations.gov/document/FEMA-2021-0011-0001

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