Immediate Threat, Force Account Labor & Equipment Costs

Appeal Brief

Summary Paragraph

The coronavirus (COVID-19) pandemic resulted in a disaster declaration for the state of Kentucky. The Elsmere Fire Protection District (Applicant) requested Public Assistance funding for FAL OT for paramedics and emergency medical technicians; FAE for the use of ambulances; and materials. The Applicant provided work schedules, payroll documents, timesheets, invoices, and spreadsheets. FEMA issued a Determination Memorandum, denying $124,363.27 in FAL OT, FAE, and ineligible materials, finding that the costs were not directly related to eligible COVID-19 medical care. However, FEMA funded $4,764.87 for eligible materials, including thermometers, disinfectant cleaning supplies, and PPE. The Applicant appealed, requesting a lesser amount of $110,040.12, stating that the claimed costs were for COVID-19 emergency medical care and transport, including operating ambulances, temperature scanning, disinfecting equipment, and performing PPE training. The Applicant argued that FAL OT costs were eligible for employees that replaced permanent budgeted employees who were unable to work due to COVID-19 illness and/or exposure, and the additional materials costs were for items to protect staff and minimize transmission of COVID-19. The FEMA Region 4 Regional Administrator denied the appeal, finding that the Applicant did not demonstrate that the FAL OT, FAE, and additional materials costs were eligible emergency protective measures related to the COVID-19 pandemic. The Applicant submitted a second appeal, requesting $110,040.12 and restating first appeal arguments. The Kentucky Emergency Management transmitted the Applicant’s second appeal in a letter dated January 22, 2024, with its support. 

Authorities

• Stafford Act § 403(a)(3).
• 44 C.F.R. §§ 206.206 (a), 206.223(a)(1), 206.225(a).
• PAPPG, at 19, 21, 24, 57, 63-64.
• Work Eligibility Policy, at 3-5; Medical Care Policy, at 2, 6-8; O&O Policy, at 5: FEMA Fact Sheet Eligible Protective Measures, at 2.
• Anchorage Middletown Fire & EMS, FEMA-497-DR-KY, at 3; City of Niceville, FEMA-4486-DR-FL, at 3-4.

Headnotes

• To be eligible, costs must be directly tied to the performance of eligible work.
  • The Applicant has not substantiated that the costs are directly tied to eligible emergency protective measures in response to COVID-19.

Conclusion

The Applicant has not demonstrated that the claimed FAL OT, FAE, and materials costs are directly tied to the performance of eligible emergency protective measures related to COVID-19. Therefore, the appeal is denied.

Appeal Letter

Appeal Analysis

Background

The coronavirus (COVID-19) pandemic resulted in a disaster declaration for the state of Kentucky on March 28, 2020, with an incident period from January 20, 2020, to May 11, 2023. The Elsmere Fire Protection District (Applicant), a special government district, requested Public Assistance (PA) funding totaling $129,128.14 for force account labor overtime (FAL OT) for work performed by the Applicant’s paramedics and emergency medical technicians; force account equipment (FAE) for the use of ambulances; and materials for the purchase of medical supplies, personal protective equipment (PPE), cleaning and disinfecting supplies, food for its personnel, and other items. The Applicant’s claimed costs were associated with work performed through December 30, 2020. In support of its request, the Applicant provided employee work schedules, payroll documents, timesheets, materials invoices, and cost summary spreadsheets. On March 9, 2023, FEMA issued a Determination Memorandum, denying $124,363.27 in FAL OT, FAE, and ineligible materials, finding that the costs were not directly related to eligible COVID-19 medical care and were increased operating costs associated with operating in a COVID-19 environment. However, FEMA approved a total of $4,764.87 for eligible materials, including thermometers, disinfectant cleaning supplies, and PPE, including gloves, masks, coveralls, and face shields.

First Appeal 

In a letter dated May 5, 2023, the Applicant appealed, requesting $110,040.12 ($66,496.87 in FAL OT; $36,711.97 in FAE; and $6,831.28 in materials). First, the Applicant stated that certain FAL OT pertained to backfill employees who the Applicant reassigned to replace COVID-19 positive staff who were quarantined. Additionally, it stated it incurred other FAL OT for COVID-19-related work that included daily physical exams of staff to confirm health and readiness for shift, staffing of ambulances, cleaning and disinfecting ambulances after each run, disinfecting stations, ordering and inventorying supplies, researching new and alternative PPE to be used, attending weekly regional and state planning meetings to track the spread of COVID-19 and keep updated on recommendations, and working with two nursing homes in the district to set up and implement evacuation plans for their patients who had COVID-19 to reduce the spread of illness to other residents. Second, the Applicant requested FAE for two ambulances that the Applicant stated were engaged in providing COVID-19 services. Third, the Applicant requested costs for materials and supplies it purchased to protect staff and patient health and safety by minimizing the transmission of COVID-19. In support of its appeal, the Applicant provided additional documentation, including activity logs, incident logs and updated cost summary spreadsheets. In a letter dated June 8, 2023, Kentucky Emergency Management (Recipient) transmitted the appeal to FEMA, with its support. 

The FEMA Region 4 Regional Administrator denied the appeal, finding that the Applicant did not demonstrate that the FAL OT, FAE, and additional materials costs were tied to the performance of eligible emergency protective measures related to the COVID-19 pandemic. FEMA found that the payroll records, summary spreadsheets incident logs, and activity logs neither demonstrated that the claimed FAL OT hours were associated with eligible COVID-19 emergency work rather than routine ineligible activities, nor distinguished potentially eligible COVID-19 activities from ineligible routine work. As such, FEMA could also not determine the amount of corresponding FAE that was eligible. Finally, FEMA found that documentation, including cost spreadsheets, showed the claimed costs included ineligible materials such as food, floor cleaning supplies, medical supplies (including bandages, needles, electrodes, and non-COVID medications), laundry detergent, paper goods, computer accessories, and items purchased to repair ambulances.

Second Appeal

In a letter dated January 29, 2024, the Applicant submitted a second appeal, requesting $110,040.12, and reiterating its first appeal arguments. The Recipient transmitted the Applicant’s second appeal in a letter dated January 22, 2024, with its support.

Discussion

FEMA is authorized to provide assistance for emergency protective measures to save lives or to protect public health and safety.^[1] 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.^[2] In response to COVID-19, eligible emergency protective measures include certain measures implemented to facilitate the safe opening and operation of eligible facilities, including the purchase and distribution of face masks and personal protective equipment, cleaning and disinfection, COVID-19 diagnostic testing, screening and temperature scanning, and purchase and installation of temporary physical barriers and signage.[3] FEMA may also provide assistance for eligible medical care, which may include: (1) emergency and inpatient treatment for patients both with confirmed and suspected cases of COVID-19 including: medical transport related to COVID-19; triage and medical necessary tests and diagnosis related to COVID-19; and medically necessary treatment of COVID-19 patients; and (2) the purchase, lease, and delivery of specialized medical equipment necessary to respond to COVID-19.[4] FEMA may also provide assistance for training and technical assistance specific to COVID-19, as well as the purchase and distribution of food for employees engaged in eligible emergency work.[5]

The applicant may need to temporarily replace an employee who is responding to the incident.[6] OT costs for backfill employees are eligible, even if the backfill employees are not performing eligible work, as long as the employees they are replacing are performing eligible emergency work.[7] FEMA may also provide assistance for FAL OT costs that are directly tied to the performance of eligible work (e.g., OT for budgeted medical staff providing treatment to COVID-19 patients) and adequately documented.[8] It is the applicant’s responsibility to provide documentation to substantiate its claim as eligible and to clearly explain how those records support its appeal.[9]

Here, the Applicant requests reimbursement for FAL OT costs on two bases. First the Applicant states FAL OT was incurred by employees who replaced employees that were quarantined due to COVID-19. However, quarantining employees does not constitute an eligible emergency protective measure under FEMA’s COVID-19 policies. Therefore, the FAL OT costs of these employees may not be considered eligible for reimbursement under provisions in FEMA policy applicable to backfill employees.[10] Second, the Applicant states that other FAL OT relates to employees who performed eligible work related to COVID-19. In support, the Applicant lists certain activities that are potentially eligible emergency protective measures such as daily physical exams of staff (e.g., screening and temperature scanning), cleaning and disinfection, providing COVID-19-related medical care, and attending meetings (e.g., trainings) to keep updated on COVID-19. However, the Applicant does not provide documentation that differentiates which FAL OT costs, if any, are directly tied to the performance of eligible emergency work. For example, the Applicant provides timesheets showing employees’ work dates, OT hours, and pay rates, with an associated 171-page daily incident log from March 2020 through December 2020 that includes calls for non-specific incidents, fires, strokes, seizures, falls, emotional crises, accidents, and difficulty breathing. Similarly, the documentation does not differentiate which FAL OT hours were directly tied to other potentially eligible emergency work, like screening and temperature scanning, cleaning and disinfection, and training and technical assistance specific to COVID-19. Therefore, the Applicant has not demonstrated the requested FAL OT costs are directly tied to the performance of eligible work in response to COVID-19.

Next, regarding the claimed FAE costs, the Applicant did not demonstrate how many hours, if any, it operated the ambulances in the performance of eligible emergency work (e.g., COVID-19-related medical calls). The documentation does not detail eligible emergency work connected with the claimed FAE. Instead, the spreadsheets show FAE hours without itemization and/or detailed information. 

Finally, the Applicant requests costs for materials. The documentation includes costs for food, non-COVID-19 medical supplies (including bandages, needles, electrodes, and non-COVID medications, among other items), floor cleaning supplies, laundry detergent, paper goods, computer accessories, and items purchased to repair ambulances. However, the Applicant does not demonstrate how any of these costs are eligible in accordance with FEMA policy. For example, it does not establish that: (1) food was provided to employees performing eligible work; (2) non-COVID-19 medical supplies were used in the performance of eligible COVID-19 medical care; or (3) other supplies were implemented to facilitate the safe opening and operation of eligible facilities in accordance with the applicable FEMA COVID-19 policy cited above. Based on the documentation in the record, the Applicant has not demonstrated its claimed materials costs are directly tied to the performance of eligible work in response to COVID-19.  

Conclusion

The Applicant has not demonstrated that the claimed FAL OT, FAE, and materials costs are directly tied to the performance of eligible emergency protective measures related to COVID-19. Therefore, the appeal is denied.