Suggestions for Reform













THREE GENERAL  PROBLEMS AND SOLUTIONS

Each topic below will identify a challenge uncovered in the administrative organization of FEMA and other disaster management agencies in their response to Hurricane Katrina.  It will then provide the general suggestion or goal necessary to remedy the issue and will conclude with the specific tasks required to implement the suggestion. 

(A more detailed discussion of the issues FEMA confronted responding to Hurricane Katrina was prepared for the conference at California Western School of Law.  This along with the comments of Richard Skinner, Inspector General of the Department of Homeland Security, follow the three general problems and solutions.)

 

PROBLEM:  FEDERAL GOVERNMENT ROLE IN RECOVERY AND REBUILDING: INATTENTION TO FEMA REGIONAL OFFICES HAS WEAKENED LOCAL RESPONSE COORDINATION.

 

The Federal government has taken the lead in the response, recovery and rebuilding effort with recommendations to create national strategies and plans for implementation.  However, the issues and problems associated with natural disasters are different for each state and local municipality. For example, the level of damage from the hurricane presents a different set of priorities and strategies than those affected  by flood, or earthquakes, mudslides and fires in areas like California.   Moreover, natural disasters require some common strategies that are inapposite to the strategies for addressing domestic terrorism. Strategies for combating domestic terrorism focus on  prevention through intelligence gathering and preserving evidence in the event after the fact.   By contrast,  planning for natural disasters focus on  preparation and evacuation because disasters cannot be prevented, and then clean-up and removal after the fact.  FEMA has let staffing and support of their classic regional offices erode to the point where most of those offices do not even have a Director.  This apparent lack of support for regional offices creates the impression that FEMA is acting in a top-down manner rather than maintaining their traditional image as a coordinator and facilitator of support who can mediate between federal, state, and local agencies and businesses.

 

SOLUTION:  REFOCUS SUPPORT AND STAFFING ON FEMA'S TRADITIONAL FRONT-LINE REGIONAL OFFICES AND THEIR COORDINATION WITH LOCAL AUTHORITIES AND BUSINESSES. 

  • Appoint or hire Directors for FEMA regional offices and provide them the financial and staffing support to revitalize FEMA’s classic regional coordination role.

  • Prescreening of contract vendors and target orders for emergency and recovery relief and standardizing a process for letting contracts with expedited procedures with appropriate representation of local, minority and small business concerns.

  • Retool grants to state and local first responders to incentivize compliance with or implementation of national priorities, and provide for detailed reporting and oversight between OIG’s at the federal and state level.

  • Enable states affected by Katrina to retain and administer donated funds for education, health care, and housing needs that are set to expire before the end of FY 2006 past this expiration date.

  • Provide grants to states to reassign prosecutors and public defenders to affected areas, contract with private lawyers or nonprofit organizations that provide legal assistance to  address backlog in criminal and civil dockets; assist in processing release of prisoners who have completed their sentence, parole hearings, and prosecution of charges arising from or delayed by Katrina.

 

PROBLEM:  OFFICE OF INSPECTOR GENERAL'S OVERSIGHT: THERE IS A DISCONNECT BETWEEN REPORTING OUTPUTS AND EFFECTING OUTCOMES

 

 

There is a perceived disconnect between outputs identified by Office of the Inspector General (OIG) and mission outcomes that ensure proper implementation of recommendations made in reports from the Government Accounting Office (GAO), FEMA, Department of Homeland Security (FEMA's parent agency), and the Executive Office. OIG’s goals of prevention and instituting adequate controls against waste cannot be effectively implemented if the performance goals are outputs rather than outcomes. OIG has neither the authority nor the role to implement policy changes.  For example, OIG’s goals are output driven: to audit 75 percent of DHS strategic objectives, report within six months on 75 percent of inspections, and implement employee training program.  The only goal that may result in an outcome is to obtain 75 percent concurrence with recommendations.  However, there is no assurance that DHS or any other agency will implement proposed recommendations.  This seems to be an organizational problem with having OIG as the sole authority for accountability, rather than including an outside oversight body comprised of stakeholders to work in concert with OIG to oversee implementation. 

 

SOLUTION:  EFFECT IMPLEMENTATION OF APPROPRIATE RECOMMENDATIONS THROUGH  AN  INDEPENDENT, BIPARTISAN BODY 

  • Establish an independent  board composed of congressional leaders, academicians, economists, and governmental entities at federal, state and local levels to oversee implementation of responsive recommendations.

  • Enforce existing laws to prosecute contractors who fail to perform or overcharge, and ensure that all contracts released for bid include provisions that require reimbursement of monies paid for non-performance; penalties for abuse or misuse of funds; and liquidated damages.

  • Contract with academic institutions and/or nonprofit organizations to conduct feasibility studies and cost analysis on existing and previously recommended programs that may be responsive to current government recommendations, in order to capitalize on lessons learned from previous disasters rather than reinventing the wheel. Report the findings to intergovernmental task forces for appropriate implementation, affected agencies, congressional oversight and appropriation subcommittees.

 

PROBLEM:  INTERGOVERNMENTAL COORDINATION: INEFFECTIVE COMMUNICATION, COORDINATION,  AND COOPERATION  WITH STATE   AND  LOCAL  OFFICIALS   

 There is a perceived lack of or inadequate coordination and review of intergovernmental processes that serve to ensure 1) effective planning and implementation of disaster plans and recovery for first responders at the state and local levels; 2) prescreening or pre-contracting of private contractors at the local and state level who may assist as needed in emergency recovery; cleaning and demolition, and rebuilding efforts; 3) a centralized database for disbursing and tracking funds to evacuees is maintained that could be cross-referenced against data from state identification or driver’s license to minimize identity theft.   For example, when FEMA was brought within DHS, FEMA’s regional support was significantly curtailed. Had  FEMA’s regional support been in place, the necessary personnel with the appropriate expertise would have been available to make a reliable assessment of the conditions and communicate both the status and needs to the various stakeholders for a timely response. Lines of authority and chains of command could have been established from a single point of command and disseminated to appropriate agencies at the state, federal and local levels.

 

SOLUTION:  ESTABLISH  REGIONAL  INTERGOVERNMENTAL  TASK FORCES  TO  PLAN AND ENSURE  COMPLIANCE WITH NATIONAL PRIORITIES FOR DISASTER RESPONSE, RECOVERY AND RELIEF

  • Establish a series of  regional intergovernmental task forces composed of federal-state-local officials, and where appropriate, private stakeholders for 1) planning and emergency needs assessment; 2) allocation of government resources and deployment of personnel at the local, state and federal levels; 3) oversight of command and control among local law enforcement, military personnel, and  national guard;  4) standards for information technology used for intergovernmental communications, disbursement and  tracking of government assistance, and management of resources.

  • Incentivize cooperation through planning grants, reimbursement plans, and/or low interest loans to state and local agencies that initiate efforts in these areas with proper oversight from FEMA.

  • Use these task forces to award more contract bids to local contractors by funneling grants from the federal level to the states or local governments whose contracting procedures may be less onerous or burdensome.

 


 

DETAILED DISCUSSION OF OF FEMA RESPONSE

FEMA AND OIG IN THE WAKE OF A DISASTER 

Professor  Andrea L. Johnson    3/21/06

California Western School of Law

Administrative Law

 

An Administrative Law class at California Western School of Law evaluated the organization of Federal Emergency Management Agency (FEMA) and other disaster management agencies in the wake of Hurricane Katrina. The issues and proposed solutions are identified below. Students focused on the issues in five areas: Interagency Coordination, Land Use, Information Technology, Contracting, and Time Sensitive matters. These recommendations were presented to Richard Skinner, Inspector General of the Department of Homeland Security.  Where feasible, his commitments have been included.

 

INTERGOVERNMENTAL   COORDINATION

I. PROBLEM

A lack of intergovernmental coordination hampered the government’s response to hurricane Katrina in several ways.  Preceding, during and following the disaster, communication failures between local, state and federal officials exacerbated the situation. Lack of communication, and therefore coordination between local first responders, the National Guard, and the Department of Defense (DoD) resulted in duplicative efforts, a waste of valuable assets, and may have cost lives.

Governmental interoperability was also an issue in the area of healthcare.  When FEMA was moved into the Department of Homeland Security, the National Disaster Medical System (NDMS) was moved from the Department of Health and Human Services to FEMA. This caused difficulties for both FEMA and NDMS because of fundamental differences in their modes of operation.  The FEMA model typically provides assistance primarily through grants and contracting when local and state emergency resources are overtaxed.  The NDMS is a quick-response team of skilled volunteer medical professionals who provide medical services in disaster emergencies without needing to wait for a request from the state or federal government for funding. FEMA’s attempt to impose full-time federal employee restrictions on health professionals who are normally only deployed during emergencies has discouraged them from volunteering.

A lack of coordination also seems responsible for delays and inefficiency in debris and structural debris removal. Moreover,  upon notification from the EPA, the U.S. Army Corps of Engineers had to stop grinding operations at one landfill because they were uncertain what type of debris non-USACE contractors were dumping there.  At least one parish that  let  their own contracts for debris removal  faced delays in FEMA reimbursement, which  forced the parish to borrow millions in order to keep their contractors working.

A lack of unity of command between the National Guard and DoD was responsible for problems as well.  There was confusion concerning who should be deployed to the area and how and where resources were being used.  Another problem was the DoD’s lack of familiarity with emergency operational procedures and personnel at the state level.

The National Response Plan was flawed or incomplete at the time of the catastrophe. The Catastrophic Incident Supplement was supposed to change the method by which the National Response Plan was implemented.  Under the Plan, when local authorities are overwhelmed, the Supplement should allow the federal government to interject and take authority in the disaster response.

II. PROPOSED  SOLUTION

A uniform communications system must be developed to enable communications between local police, the National Guard and the Department of Defense during the response to a catastrophic disaster.

Implementation of the National Response Plan must also be improved. The government must be prepared to implement the push system provided by the Catastrophic Incident Supplement in the event of another disaster of this magnitude. Interagency exercises, simulations and trainings should engage all local, state and federal first responders. 

Regional intergovernmental task forces should be created in order to integrate local information with federal resources.  The following task forces should be created to deal with the specific problems addressed here.

1.       Emergency healthcare: Collaboration by federal, state and local health officials.

2.       Debris removal and structural damage: The U.S. Army Corps of Engineers, the Environmental Protection Agency, and local officials should coordinate the contracting, removal and final disposition of debris.

3.       Unity of command: A single active duty military commander should be appointed to unify the troops, coordinate the National Guard units reporting from states, and act as a single point of contact for FEMA and DHS.  This commander should report to the Governor and the state’s Adjutant General, and also serve as a contact on the ground locally who reports back to the President.

III. THE  INSPECTOR  GENERAL’S  RESPONSE  

The Inspector General of DHS, Richard Skinner, recognized and acknowledged the problems discussed.  He explained why some of the problems occurred. He also confessed that his office has no authority to force implementation of its recommendations.  OIG’s role is limited to providing oversight, which includes investigative programs to detect and prevent fraud, reporting “on the economy, efficiency, and effectiveness of operations,” and making recommendations. 

Concerning the lack of a uniform communications system, Mr. Skinner’s replied, “We have plans, but that’s all they are plans.” He said this issue would definitely be addressed in a report that will be released from his office in April of 2006.  He acknowledged the importance of this issue, saying if he only dealt with five issues, communications would be in that top five.  Eleven billion dollars of grant money is spent annually to support firefighters, police, state and local law equipment capabilities, and he would like to see that grant money premised on a requirement that equipment purchases meet certain standards.  He admitted that those standards have yet to be defined.

Mr. Skinner agreed with the problems concerning the National Response Plan (NRP).  He said, “The NRP is very, very new, never been tested, only exercised once last Spring.”   A report was generated regarding the problems that were recognized during that exercise.  He claims that some federal agencies and departments “had not read the federal response plan, did not understand  their responsibilities, and were reacting to the scenario as opposed to being prepared.”  He admitted this is a big problem.  “We should be prepared before the disaster strikes, we shouldn’t be studying the National Response Plan in the middle of a disaster.”  Also, Skinner remarked on the confusion caused by the lack of guidelines for implementation of the Catastrophic Supplement.  He said the pull system would work in 99.9% of natural disasters but in a catastrophic disaster we need a push system.  Skinner said the federal government should have known the local and state responders would be unable to deal with Katrina.  “We should have pushed our resources in earlier on, instead of waiting until we were asked for help.”

In response to our remarks about the need for a unified command, Mr. Skinner proposed that the head should be the Secretary of Homeland Security and there should also be a principal federal officer, a federal coordinating officer, and reporting capabilities that go through a chain of command up to the President, so that we know what we need.  Also, he suggested that in addition to the problem of interoperability that we identified, we should also consider the problem with intraoperability.  The federal level could not communicate for example, with the Coast Guard, DoD, and the National Guard from other states who came to assist could not communicate with each other.  He said this created waste and inefficiency.

Mr. Skinner agreed that there was a problem with the medical response as well. He said the NDMS has “never been challenged like this before.”  He claims there should be a plan that starts at the local level and works up to the state and then federal levels, and that each level should have a disaster medical response system that they should all exercise together.  This supports our idea of establishing an intergovernmental task force in this area. He also remarked that rebuilding was a collaborative effort, and that after engineers and experts estimate damages, the locals decide whether to rebuild.

IV. Reactions and Proposed Action Steps

We were impressed by Mr. Skinner’s candor and true concern for the problems we addressed. We wanted to know more about the unified command issue, but were pleased overall with the information he shared concerning the issues we raised.  We are frustrated by the fact that even where he agrees with us, he does not have the authority to implement any of our solutions.  We feel that part of the problem is that a lot of reporting gets done, but little action is actually taken to change, develop and implement  actions where necessary to improve the governmental response to natural disasters.  It appears that the government has not given itself a vehicle to make change.

Congress must be compelled to make the necessary changes to plans that are flawed, and to implement plans that will permit the various government agencies and officials to respond to natural disasters in an efficient and effective manner. Unnecessary levels of bureaucracy should be eliminated, and first responders must be given the tools and authority necessary to act quickly.  While the preparation for response to terrorism should not be decreased or minimized, the DHS and FEMA must define responsibilities, make guidelines and initiate training exercises so that responders at all levels are also prepared for catastrophic disasters like Katrina.

The OIG will be issuing their report in April of 2006, and it will hopefully get the full attention from Congress that it deserves. In the meantime, voters should pressure their local members of Congress, and the relevant legislative committees, to bring about the necessary changes.   

Contributors: Michael Sage (Conn.), Shelley Rowe-Krusic, Robert P. Beaurivage (CA), Tara D. Newberry (CA), Abelard Godoy (CA), Kitty A. Baker


 

 

LAND USE

IBackground

Prior to 2003 the Federal Emergency Management Agency (FEMA) was organized as an independent agency whose main purpose was disaster response and preparedness. FEMA was subsequently reorganized under the Department of Homeland Security (DHS) to act as DHS’ emergency response wing. Although we believe FEMA as an independent agency would function more efficiently to meet the United States’ disaster and emergency needs, we realize this suggestion is not necessarily feasible and would most likely cause more delay and bureaucratic bickering than solve any problems.

II. ISSUE

Under the DHS’ current disaster response plan there is no local response. All response follows a “top down” approach. By “top down” we mean response begins with an assessment of the problem from FEMA’s headquarters in Washington. The problem this poses is that an accurate and efficient response is not made since officials from and in the area of the disaster or emergency have limited involvement.    Furthermore,  the creation and implementation of mitigation programs is limited and currently has no local or regional involvement. This is problematic since local responders are not involved in the procedure, meaning there is no local assessment or input with regards to the response. The result is an increase in crucial response time and a decrease in efficiency. 

III. PROPOSED SOLUTION

Re-fund and re-institute Project Impact Initiative in which local communities or regions engage in their own pre-disaster planning so as to mitigate damage. This initiative allows the region to plan according to their specific needs, meaning California communities would not follow the same plan as Florida communities since one region faces potential earthquakes while the other faces hurricanes. The plan has been used in response to earthquakes, tornados, hurricanes and even area where no major disaster has yet struck.

IV. EXAMPLE OF SUCCESS

The following is merely an illustrative and by no means exhaustive list of communities that have engaged in such regional planning in preparation for various forms of disaster.

1)       Project Impact Seattle[1]

a)      This private-public initiative has taken measures to make the Seattle area a more disaster resistance community by creating and following plans such as:

i)        Home Retrofit

ii)      School Retrofit

iii)    Hazard Mapping

iv)     Disaster Resistant Business

2)       Project Impact Arkadelphia[2]

a)      Created in Arkadelphia, AR after a category F4 tornado with winds over 260 miles per hour tore through this small Arkansas town.

3)       Project Impact Tarpon Springs[3]

a)      Tarpon Springs, FL has used the plan for hurricane preparedness

4)       Clearwater County[4]

a)      A community in Idaho has used the plan for wildfire and landslide preparedness

5)       Village of East Rockaway[5]

a)      A community in New York has used the plan for winter storm, hurricane and flood preparedness

6)       Change in California Build Codes

a)      After the 1989 Loma Prieta Earthquake and the 1994 Northridge Earthquake CA cities starting requiring the retrofitting of old buildings that posed significant threat should a quake strike. Additionally building and construction codes were updated to account for seismic activity.

Contributors:   Michael Favale (NJ), Michael Gianelli (CA), Tim Flanagan (CA), Carol Harris (WI), Hesaam Moallem (TX) and Gary Nolan (CA).


 

Information  Technology

I. PROBLEM

One of the issues arises out of the Katrina disaster is the federal government’s inability to track people and funds. The government has an interest in tracking the whereabouts of the evacuees, especially those that fled the disaster region, as well as  an interest in tracking both the financial assistance given to evacuees and the economic injuries caused by identity theft resulting from lost or stolen identification documents.

II. PROPOSED  SOLUTION

A.      National Identification Systems

The government needs to implement a centralized national database that will provide uniformity of identification systems throughout local, state and national agencies.  There needs to be a national database  that is integrated with state and local agencies databases, such as the DMV, to provide an up-to-date record of individuals.

1.       In tracking people, this centralized database will allow evacuees to opt in or out of the system, to designate whether they wish to be tracked by family members and/or to continuously track those displaced family members, as they move away from disaster affected areas.  The evacuees will be provided a tracking number assessable nationwide that can be linked to social security numbers, driver’s license or state identification numbers.

2.       In tracking funds, having a centralized database will deter double claims for benefits, as well as discourage people from using stolen information to claim federal and state aid.  Thus, using the centralized database will deter potential crimes such as identity theft and decrease the amount of prosecutions.

B. Government Challenges in Implementation

1.       The government has to be mindful of privacy concerns of individuals, especially with regards to how the government will use the information in the database. Current national and state laws restrict government use of private information. Furthermore, there are also potential risks associated with possible breaches in the system or hackers gaining access to the information in the database.

2.       There also needs to be cooperation and coordination among the states to identify common portals and standards for data sharing.  Such efforts have begun for law enforcement to combat terrorism but need to focus on the consequence of natural disasters.  Grants could be made available to states to develop IT plans.  Persons without a state-issued identification card or driver license would need to register.  As such, in order to implement the solution, a standard policy on how data will be obtained or kept nationally would need to be adopted to sufficiently protect the information from theft or abuse.  This would also require coordination procedures between local, state and federal agencies.

III. THE  INSPECTOR  GENERAL’S  RESPONSE

Mr. Skinner endorsed the importance of a centralized database.  The national database could cut down on the bureaucracy and duplication of effort which slowed the process of locating missing children. The national database could also be used to register and track sexual offenders on the move from one jurisdiction to another. To address security and privacy concerns the following should be implemented:

1.       The information collected in the database should be general in nature.

2.       The government would have to establish adequate security safeguards e.g. firewalls and watermarks. to protect the data from internal and external breaches.

3.       The government would have to conduct periodic reviews of the system to ensure that the system functions properly.

4.       The national database would only be accessed in response to an executive declaration of disaster. 

Contributors:  Shacasey Rogers (CA), Chris Madison (Utah), Daisy Li (CA)

  

CONTRACTING

I. PROBLEM

The Contracting process was not specific or targeted enough to be effective, and was largely reactive in nature. This resulted in confusion between local, state and national responders. Moreover, only large contractors like Bechtel or Haliburton can afford the reimbursement float time, leaving the affected small/local/minority businesses impacted by disaster left out of rebuilding contracts

Wages were  driven down so workers would not return to compete in bids.  Proper preparation was not possible because the unique needs of each area had not been  identified.  Finally, the need for speed led to no bid contracts, resulting in preventable waste and fraud. 

II. SOLUTIONS

            1. OIG's Office should retain procurement oversight. OIG has the necessary expertise in place. 

            2. FEMA’s regional offices should implement prescreening of contract vendors.      

a.       Create standardized process for regional businesses for letting contracts in advance – i.e., possibly renewable every two years.

b.       Put pre-contracted for target orders in place.

c.       Put partial-draw or expedited-reimbursement processes in place so that small businesses can compete.

            3. Recommend that reimbursement and/or penalty clauses should be included in FEMA contracts.

                        a.  Reimbursement for overcharging can be discovered through the audit process.

                        b.  Add liquidated damages clauses for non-performance.

                        c.  Add Penalty clauses for fraud, waste, misappropriation, etc.

            4. Insist that existing technology is used to reduce fraud and waste.

    1. Place the same restrictions on cash cards as food stamp-type cards. The technology has been in place in California for several years,  and prohibits certain types of purchases.
    2. Limit and renew cash availability.

Contributors:  Joe D’Alonzo (PA), James McNair (CA), Christopher Rothfus (HI), Chris Reichman (CA), and Chris Young (CA). 

 

TIME SENSITIVE MATTERS

I. PROBLEM

Following Hurricane Katrina and continuing today, many critical legally protected rights and privileges are being denied to residents of the Gulf Coast.  Denial of these interests could force judges to release persons charged with crimes, cause low-income individuals  to go without medical attention, and open the state and federal governments to potential liability. 

These rights and privileges include:

1.       Health care of affected people including Katrina-related health issues and the already existing health issues pre-Katrina.

2.       In education, maximizing the one-time use of funds available under the "Hurricane Education Recovery Act."

3.       Inmate issues, including violations of speedy trial  rights, destruction of exculpatory evidence, and destruction of records.

4.       Prosecution of fraudulent claims (identity theft issues).

II. COMMON TRENDS

      1. Procedural issues

  • Education funds under the Hurricane Education Recovery Act need to be extended for the next two years.    The problem, however, is procedural: Is the application process too burdensome, given the limited lifetime of this legislation?

      2. Dealing with all of these issues comes down to the same problem: money is needed to resolve the issues above.

  • Where is the money going to come from?

  • Example: if there was not enough money to provide health care to people pre-Katrina, where will the money come from in order to take care of people=s health now?

      3. Resource issues

  • To resolve  fraudulent claims, there are not enough attorneys available to handle the prosecutions.  Assuming that there are funds to pay them, where do you find attorneys authorized to practice in the affected jurisdictions?

III. SOLUTIONS  

      1. Stop Gap Measures

  • Continue existing extensions in Medicaid and education funding

  • Use donated money from private sources.   Continue publicity on current state of things in affected areas emphasizing that  there are lots of things that still need to be done.

      2. Procedural and Jurisdictional Measures

  • Legislation with sunset provisions in order to relax application requirements, jurisdictional requirements, etc.

Contributors: Jacob-Greenwall-Grillot (IL), Choining Dorji (Bhutan), Michael Robinson (NY),Vida Maria Navarro (CA)