Nearly five years after Superstorm Sandy, bipartisan legislation has been introduced in the U.S. Senate to extend the National Flood Insurance Program (“NFIP”) for six years that, if enacted, would significantly alter standard flood policies and the claims process.

The NFIP expires on September 30, 2017.

The “Sustainable, Affordable, Fair, and Efficient National Flood Insurance Program Reauthorization Act of 2017” is cosponsored by U.S. Senators Bob Menendez (D-N.J.), John Kennedy (R-La.), Chris Van Hollen (D-Md.), Marco Rubio (R-Fla.), Elizabeth Warren (D-Mass.) and Thad Cochran (R-Miss.), all members of the Senate Banking and Appropriations Committees who ultimately are charged with writing the NFIP reauthorization legislation, Cory Booker (D-N.J.), and Bill Nelson (D-Fla.).

The bill, among other things, would:

- Cap all premium rate hikes at 10 percent.

- Prohibit the Federal Emergency Management Agency (“FEMA”), which administers the NFIP, from increasing premium rates above 10 percent per year on any policyholder for six years. Currently, premiums can increase by as much as 25 percent per year.

- Exclude catastrophic loss years in the average historical loss year calculation.

- Require FEMA to offer zero or low-interest loans to fund mitigation projects by homeowners such as elevation and flood-proofing to reduce flood risk

- Require FEMA to provide financial assistance to offset any NFIP premiums and/or mitigation loan payments that cause housing costs to exceed 30 percent of the household's adjusted gross income.

- Increase policy coverage limits to $500,000 for residences and $1,500,000 for multifamily and business structures.

- Require FEMA to conduct a study on offering business interruption coverage in the NFIP policy.

- Increase the maximum increased cost of compliance (“ICC) payment from $30,000 to $100,000.

- Add ICC coverage to all NFIP policies.

- Exempt ICC payment amounts from the maximum payout of a NFIP policy.

- Authorize $500 million per year for six years for the pre-disaster mitigation (“PDM”) program.

- Authorize $800 million per year for six years for activities to fund LiDAR and mapping of the entire country.

- Requires FEMA to give priority to flood mitigation activities that (1) provide benefits on a floodplain-wide or community-wide basis to have impact on a community or specific part of a community, (2) consider all available and practicable approaches, and (3) are determined be technically feasible, have the highest net benefits, and consistent with mitigation plans that are approved by the administrator.

- Freeze interest accrual on the NFIP's debt to the Treasury for six years after enactment.

- Cap “write-your-own” insurer compensation at 22.46 percent of written premiums, while maintaining agent commission at 15 percent of written premiums.

In addition, the bill would:

- Mandate that earth movement resulting from flooding not be used as an exclusion to making a claim.

- Remove the basement exemption for a limited subset of policies for pre-FIRM condominium buildings with lowest floor not more than four feet below lowest adjacent grade.

- Clarify that damage from mold generally is covered if caused by flood.

- Require the FEMA administrator to establish an appeals process.

- Extend the deadline for a policyholder to appeal his or her claim determination to FEMA to one year after the determination was made.

- Require FEMA to respond to a claims appeals within 90 days.

- Require FEMA to establish a process to allow policyholder to request his or her appeal be heard through independent, binding arbitration rather than through FEMA.

- Require FEMA to require WYOs to pay FEMA the amount the WYO underpaid a policyholder.

- Give policyholders the right to access to all documents used in processing a claim within seven days of the request, free of charge.

- Require notice to policyholders within 30 days of making a claim that claim-related documents are available upon request.

- Increase the statute of limitations for policyholders to file a lawsuit challenging their flood insurance claim to two years after a determination is made.

- Institute fee-shifting, whereby a policyholder, when prevailing in an administrative appeal process or in litigation, is entitled to receive attorneys' fees and expert fees.

- Require that FEMA refer policyholder lawsuits, including those against a WYO, to the Department of Justice rather than hiring outside counsel with bills paid by FEMA.

- Provide that, under no circumstances, may the Justice Department seek to throw out lawsuits with potential meritorious claims because of good faith errors or omissions by the policyholder in the policyholder's proof of loss.

- Ease proof of loss requirements by clarifying that honest errors or omissions by the policyholder must be pointed out to the policyholder for revision and not used to deny the policyholder a claim, or the right to appeal, or to litigate and clarify that the proof of loss must be “non-burdensome” on the policyholder and require only that information necessary for the insurer to make a decision.

- Eliminate the 60 day proof of loss deadline and make the deadline for the notice of damage one full year after the flood event, with an additional year for supplemental claims, in the case of later-discovered mold.

- Require FEMA to process all flood claims within 30 days of the policyholder filing with an extension of 15 days under extraordinary circumstances.

- Require engineers to be licensed in the state where services are performed on behalf of the NFIP.

- Require an individual retained to perform engineering services in connection with assessing any claim of loss covered by a SFIP to also be certified by FEMA via initial training and annual renewal of certification through continuing education.

- Prohibit an engineering report from being modified or manipulated by anyone who has not sealed the report.

Steven A. Meyerowitz

Steven A. Meyerowitz

Steven A. Meyerowitz, a Harvard Law School graduate, is the founder and president of Meyerowitz Communications Inc., a law firm marketing communications consulting company. He may be contacted at [email protected].

More from this author ⟶