Immediate Threat

Appeal Brief

Summary Paragraph

On March 20, 2020, the President issued a major disaster declaration for the state of New York with an incident period of January 20, 2020, to May 11, 2023, for COVID-19. The Applicant incurred costs to refrigerate and deliver meals to students using its bus contractor, and requested $474,855.98 in Public Assistance for the work. FEMA denied the request in a Determination Memorandum, finding the work ineligible because school districts typically do not have legal responsibility to distribute food during declared emergencies and the Applicant did not establish that its food distribution plan met the requirements of FEMA’s COVID-19 Food Policy. FEMA stated that the Applicant did not demonstrate that food was not easily accessible for purchase nor that its students were impacted by reduced mobility. The Applicant submitted a first appeal, asserting that its actions were a recognized emergency protective measure, and it had legal responsibility for the work. FEMA denied the appeal, finding that the Applicant was not legally responsible for the work and did not establish that its food distribution program met the requirements of the COVID-19 Food Policy. The Applicant submits a second appeal, reiterating first appeal arguments.

Authorities

• Stafford Act §§ 403.
• 44 C.F.R. §§ 206.223(a)(1), 206.225(a).
• PAPPG at 19, 42, 57, 63. 
• Food Policy at 1, 3.
• Freehold Borough Board of Education, FEMA-4488-DR-NJ at 2, Union Springs Cent. Sch. Dist., FEMA-4480-DR-NY, at 3. 

Headnotes

• For the distribution of food to be considered an eligible emergency protective measure under the COVID-19 Food Policy, the applicant is responsible for demonstrating that the work and costs were incurred to respond to an immediate threat as a result of the COVID-19 emergency. Increased costs of operating a facility or providing a service are generally not eligible, even when directly related to the incident.
  • Here, the Applicant incurred increased operating costs to continue a food distribution program it was providing prior to the COVID-19 pandemic. The Applicant has not demonstrated that the transportation or refrigeration supply costs for its food distribution service are eligible emergency protective measures in response to COVID-19.

Conclusion

FEMA finds that the Applicant has not demonstrated that the costs incurred for providing meals to students are related to an eligible emergency protective measure in response to COVID-19. Therefore, this appeal is denied.

Appeal Letter

Appeal Analysis

Background

The coronavirus (COVID-19) pandemic resulted in a major disaster declaration for the state of New York on March 20, 2020, with an incident period of January 20, 2020, to May 11, 2023. On March 16, 2020, the Governor of New York issued Executive Order 202.4, which directed that “school districts shall develop a plan for alternative instructional options, distribution and availability of meals, and childcare, with an emphasis on serving children of parents in the health care profession or first responders.”[1] The Board of Cooperative Education – Eastern Suffolk (Applicant) requested Public Assistance (PA) funding to refrigerate food and transport breakfast and lunch through its bus contractor to students. FEMA prepared Grants Manager Project 141952, totaling $474,855.98, to document the claimed work and costs.

On February 28, 2023, FEMA issued a Determination Memorandum denying the requested funding. FEMA found the claimed work for preparation and distribution of meals were ineligible because the Applicant did not establish that its districtwide food distribution services met the requirements of FEMA’s Coronavirus (COVID-19) Pandemic: Purchase and Distribution of Food Eligible for Public Assistance policy (Food Policy).[2] FEMA explained that school districts typically do not have the legal responsibility to distribute food during declared emergencies. Instead, school districts are considered a unit of local government with limited authority, and emergency powers to protect the overall community are typically limited to a government’s chief executive and legislatures. FEMA added that distribution of meals to the Applicant’s students was not considered an eligible emergency protective measure for the declared incident, explaining that the Applicant did not demonstrate that the lack of physical access to food was due to the COVID-19 pandemic as required by the Food Policy.

First Appeal

The Applicant filed a first appeal in a letter dated April 11, 2023, seeking $474,855.98 in previously denied funding. The Applicant stated that the Governor of New York provided legal authority and responsibility to public school districts to provide food to its students through Executive Order 202.4. The Applicant stated the majority of its students were considered special needs under the Individuals with Disabilities Education Act, with over 65 percent qualifying under the United States Department of Agriculture’s Community Eligibility Provision (CEP) school program. As such, the Applicant emphasized that these students were medically fragile or from financially disadvantaged families, which meant they were unable to gain access to meals during the disaster. On June 13, 2023, the New York State Division of Homeland Security and Emergency Services (Recipient) forwarded the appeal to FEMA, along with its letter of recommendation supporting the Applicant’s position.

In a letter dated November 7, 2023, the FEMA Region 2 Regional Administrator denied the Applicant’s first appeal. FEMA found that the circumstances described by the Applicant did not meet the criteria for the provision of food as an emergency protective measure. FEMA concluded that the Applicant did not demonstrate that the described lack of mobility was due to a government-imposed restriction, the students’ families were unable to physically access food, or that there were disruptions to the food supply chain or a marked need for feeding resources. FEMA cited a second appeal decision, Freehold Borough Board of Education, which found that the financial need of the families was not one of indicators listed in the Food Policy that may demonstrate the need for food as an emergency protective measure.[3] Therefore, FEMA found the claimed costs associated with transportation services and refrigeration supplies used for food distribution were ineligible for PA funding.

Second Appeal

In a letter dated January 8, 2024, the Applicant filed a second appeal, emphasizing that it was legally responsible under Executive Order 202.4 to perform the work of transporting and packaging meals and contending that the work should be found eligible per the Food Policy. The Applicant references and provides numerous documents, including news articles and a commission report on the welfare of the county during COVID-19, to demonstrate the lack of mobility for residents during the disaster. The Recipient, in a letter dated March 8, 2024, forwards the second appeal to FEMA with its recommendation of approving the Applicant’s claim.

Discussion

FEMA is authorized to provide emergency protective measures to save lives and protect public health and safety.[4]  For emergency protective measures to be eligible, the applicant is responsible for showing the work is required due to an immediate threat resulting from the declared incident.[5]Under limited circumstances, the provision of food may be an eligible emergency protective measure.[6] Under the COVID-19 declarations, FEMA may provide assistance for the purchase and distribution of food under limited circumstances to meet the immediate needs of those who do not have access to food as a result of COVID-19, and to protect the public from the spread of the virus.[7]Increased costs of operating a facility or providing a service are generally not eligible, even when directly related to the incident.[8]

In the Food Policy, FEMA established indicators that may demonstrate the need for food as an emergency protective measure.[9] The Applicant states that students were subject to stay-at-home orders and due to medical fragility or economic hardships could not access food during the COVID-19 pandemic; however the circumstances described by the Applicant in this case do not meet the criteria for the provision of food as an emergency protective measure due to an immediate threat from the declared incident.[10] Here, the Applicant provided meals to students through the year-round CEP program prior to the onset of the COVID-19 public health emergency and continued providing meals to students during the COVID-19 public health emergency. Although the Applicant incurred additional costs related to refrigeration and transportation of food, the Applicant’s additional costs are increased operating costs, not eligible for PA, even when directly related to the incident.^[11] 

Conclusion

The Applicant has not demonstrated that the costs incurred for providing meals to students are related to an eligible emergency protective measure in response to COVID-19.^[12] Therefore, this appeal is denied.