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Second Appeal Letter
PA ID# 000-URY5G-00; Sanford Health
PW ID# N/A; Request for Public Assistance
June 26, 2012
Lonnie G. Hoffer
Disaster Recovery Chief
North Dakota Department of Emergency Services
P.O. Box 5511
Bismarck, ND 58506-5511
Re: Second Appeal-Sanford Health, PA ID 000-URY5G-00, Request for Public Assistance, FEMA-1907-DR-ND
Dear Mr. Hoffer:
This letter is in response to your letter dated November 8, 2011, which transmitted the referenced second appeal on behalf of Sanford Health (Applicant). The Applicant is appealing the U.S. Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of its Request for Public Assistance (Request).
Rapid snow melt caused by excessive snowfall followed by warm temperatures resulted in severe overland and riverine flooding throughout central and eastern North Dakota beginning on February 26, 2010. Major disaster FEMA-1907-DR-ND was declared on April 30, 2010. On December 13, 2010, the Applicant, under its former name of MeritCare Health System, submitted a Request to the North Dakota Department of Emergency Services (Grantee). The Applicant claimed to have incurred $98,510 in emergency work costs and submitted a Category B - Project Worksheet (PW) along with the Request. The Grantee noted in a December 18, 2010, letter forwarding the Request to FEMA, that the ongoing merger of MeritCare Health System and Sanford Health before, during, and after the disaster contributed to the oversight in timely filing of the Request. The Grantee further noted that the logs of attendees showed that the Applicant’s representatives had not attended any of the Applicants’ Briefing meetings. With correspondence dated March 3, 2011, FEMA denied the Request as it was submitted more than seven months after the disaster declaration and well after the 30-day deadline established in Title 44 Code of Federal Regulations (44 CFR) §206.202 (c), Applicant procedures, Request for Public Assistance (Request).
The Applicant acknowledged, in its May 12, 2011, first appeal letter, that the delayed submittal of the Request was an oversight, but emphasized that the PW “was filed timely and in the required format.” The Grantee forwarded the first appeal to FEMA without recommendation on May 18, 2011. On August 17, 2011, the Regional Administrator denied the first appeal stating that the merger of the two companies was not an extenuating circumstance beyond the Applicant’s control that would justify extending the Request deadline by more than seven months.
The Vogel Law Firm (Agent), acting as an agent of the Applicant filed a second appeal on October 24, 2011. The Agent argues that FEMA should grant the Applicant a time extension because addressing the administrative complications resulting from the merger while concurrently responding to and recovering from the flooding, should qualify as unavoidable extenuating circumstances that hindered prompt submittal of the Request. The Agent not only notes that the regulatory provision, 44 CFR §206.202 (f)(2), Applicant procedures, Exceptions, allows FEMA to extend the 30-day time limitation for Requests, but states that FEMA has used this discretionary ability in the past to approve extensions for other applicants. Furthermore, the Agent reiterates that despite having filed the Request after the regulatory deadline, it maintains that the Applicant filed the PW in a timely manner. The Grantee forwarded the second appeal to FEMA on November 8, 2012, without a recommendation.
FEMA’s regulations at 44 CFR §206.202 (c), Application procedures, Request for Public Assistance (Request), require that the Grantee must submit a Request for each applicant to FEMA within 30 days after designation of the area where the damage occurred. The Applicant’s Request identified MeritCare locations in Barnes, Cass, Ransom, Richland, Stutsman and Traill counties. Each of these counties was designated for Federal disaster assistance under FEMA’s Public Assistance Grant Program on April 30, 2012. Even though the Agent concedes that the Request was filed after the regulatory deadline, it provides no reasoning to support its claim that the PW was filed in compliance with the provisions in 44 CFR §206.202 (d), Application procedures, Project Worksheets, which allow the applicant “60 days following its first substantive meeting with [FEMA] to identify and to report damage.” Typically, FEMA conducts Kickoff meetings with each applicant within 2 weeks of receipt of the Request. However, in this case, the absence of the Request did not afford FEMA the opportunity to schedule this meeting with the Applicant, thereby failing to establish a date from which to measure the applicable 60 day timeframe.
While it is likely that the merger of Sanford Health and Merit Care Health System placed an administrative burden on the organization, that increased burden does not qualify as an extenuating circumstance beyond the control of the Grantee or the Applicant that would warrant a time extension of more than seven months for submittal of the Request, a form which the Office of Management and Budget estimates as having an average burden of 10 minutes. Further, the Applicant applied for Public Assistance under MeritCare Health System in disaster 1829-DR-ND but did not request or receive funding. Therefore the Applicant should be familiar with the Public Assistance process. Therefore, as the Applicant has not submitted documentation that would justify a time extension under 44 CFR §206.202(f)(2), the Applicant is not eligible for assistance under FEMA-1907-DR-ND.
I have reviewed the information submitted with the appeal and have determined that the Regional Administrator’s decision in the first appeal is consistent with Public Assistance regulations and policy. Accordingly, I am denying the second appeal.
Please inform the Applicant of my decision. This determination is the final decision on this matter pursuant to 44 CFR §206.206, Appeals.
cc: Robin Finegan
FEMA Region VIII