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Applicant Eligibility

Appeal Brief Appeal Letter

Appeal Brief

DisasterFEMA-1609-DR
ApplicantMount Sinai Medical Center
Appeal TypeSecond
PA ID#086-U7KTQ-00
PW ID#9137
Date Signed2012-05-15T04:00:00

Citation:         FEMA-1609-DR-FL; Mount Sinai Medical Center; Applicant Eligibility, PW 9137

Cross -            Applicant Eligibility, Emergency Protective Measures

Reference:     

Summary:      In response to Hurricane Wilma, Mount Sinai Medical Center (Applicant) incurred costs for activating its facility as a Medical Maintenance Facility.  The Applicant entered into a Memorandum of Understanding (MOU) with the Miami-Dade Office of Emergency Management (OEM) prior to the disaster.  The Applicant’s facility was intended to maintain the health, safety, and well being of individuals who were dependent on oxygen or electricity dependent during a disaster.  On January 22, 2007, FEMA prepared PW 9137 for $160,040 to reimburse the Applicant for force account labor.  At final inspection, FEMA disallowed all cost associated with PW 9137 because the work was considered an increased operating expense.   

                        In its first appeal submitted on April 30, 2010, the Applicant requested that FEMA reinstate the reduction of assistance.  The Applicant claimed it was operating as a special needs shelter under the MOU with the OEM.  On September 30, 2010, the Regional Administrator denied the appeal because the Applicant was not eligible to apply for FEMA funds as the requesting entity under FEMA’s Mutual Aid Policy.

The Applicant submitted its second appeal on October 29, 2010, claiming its facility was operating as a subsection of the OEM and is eligible for reimbursement.

The Applicant has not provided documentation that the medical facility is in fact part of the OEM or is eligible to apply for disaster assistance as the eligible applicant.

Issue:              Is the Applicant eligible to apply for disaster assistance for emergency protective measures as an agency of the OEM?

Finding:          No.  The Applicant is not eligible to apply for disaster assistance because it was under the operational control of the OEM.  The OEM must be the requesting entity for FEMA assistance.    

Rationale:      44 CFR §206.223(a)(3) General Work Eligibility; DAP9523.6, Mutual Aid Agreements for Public Assistance, dated September 22, 2004; FEMA Public Assistance Guide (FEMA 322), Eligibility, page 33, dated October 1999.


Appeal Letter

May 15, 2012

Bryan Koon

Director

Florida Division of Emergency Management

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399-2100

Re:  Second Appeal–Mount Sinai Medical Center, PA ID 086-U7KTQ-00, Applicant Eligibility, FEMA-1609-DR-FL, Project Worksheet (PW) 9137

Dear Mr. Koon:

This letter is in response to a letter from your office dated January 13, 2011, which transmitted the referenced second appeal on behalf of the Mount Sinai Medical Center (Applicant).  The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of funding in the amount of $160,040 for emergency protective measures.

Background

As part of the response to Hurricane Wilma, the Applicant incurred costs for activating its facility as a Medical Maintenance Facility during the period of October 24, 2005 through October 26, 2005.  The Applicant entered into a Memorandum of Understanding (MOU) with the Miami-Dade Office of Emergency Management (OEM) to provide such emergency services.  Under the MOU, the Applicant’s facility was intended to maintain the health, safety, and well being of individuals who were medically dependent on oxygen or electricity during a disaster.  On January 22, 2007, FEMA prepared PW 9137 for $160,040 to reimburse the Applicant for the cost of force account labor for operating an emergency medical shelter.  The Applicant submitted force account labor information, lab fees, and other costs.  The PW was written for the full number of estimated overtime hours, with the condition that all hours and costs would be verified at project close out.   

At final inspection, FEMA disallowed all cost associated with the project because the work was considered an increased operating expense and not eligible for funding.  The Applicant was unable to demonstrate that it operated as a separate sheltering facility during the disaster.  All force account labor and other costs for this project were considered an increased operating expense and on May 20, 2009, FEMA reduced PW 9137 to zero dollars.  FEMA determination did note that the OEM could submit the Applicant’s expenses for evaluation as mutual aid costs because they were operating under an MOU between the Applicant and the OEM.

First Appeal

The State transmitted the Applicant’s first appeal to FEMA in a letter dated April 30, 2010.  The Applicant claimed it was operating as a special needs shelter under an MOU with the OEM and requested that FEMA reinstate $160,040 in funding.  On September 30, 2010, the Regional Administrator denied the appeal because the Applicant was not eligible to apply for Public Assistance funds as the requesting entity, as outlined in FEMA Disaster Assistance Policy DAP9523.6, Mutual Aid Agreements for Public Assistance.  The Regional Administrator also determined that costs for emergency protective measures performed by the entry may be eligible if submitted by the OEM as the requesting entity.      

Second Appeal

The Applicant submitted its second appeal on October 29, 2010, which the State forwarded to FEMA on January 13, 2011.  The Applicant reiterated the claim in the first appeal that its facility was operating as an agency of the OEM and is eligible for reimbursement.  The Applicant contends that the MOU establishes the Applicant as a hybrid entity of the OEM and is therefore eligible to apply for assistance on their behalf.

Discussion

In Disaster Assistance Policy DAP9523.6, Mutual Aid Agreements for Public Assistance, dated September 24, 2004, “Only requesting entities are eligible applicants for FEMA public assistance.”  In the MOU, the requesting entity is the OEM and the providing entity is the Applicant.  In accordance with 44 CFR §206.223 (a) General Work Eligibility, “To be eligible for financial assistance, an item of work must: (3) Be the legal responsibility of an eligible applicant.”  The Applicant stated that the emergency protective measures performed were at the request of the OEM, and did not demonstrate legal responsibility to independently perform these measures. 

In addition, because the Applicant is a PNP, it is not eligible to apply directly to FEMA for reimbursement of its costs for labor, equipment use, and other supplies.  FEMA Public Assistance Guide (FEMA 322, dated October 1999) states that “PNP operating costs for providing services are not eligible, even if increased by the disaster event.  The ineligible items include labor, material, and equipment costs for providing assistance services to disaster victims, even if the services are not the same as the organization’s basic mission.”  However, as determined by the Regional Administrator and in accordance with DAP9523.6, Mutual Aid Agreements for Public Assistance, the OEM may apply for reimbursement of those costs on the Applicant’s (providing entity) behalf. 

Conclusion

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.

Sincerely,

/s/

Deborah Ingram

Assistant Administrator

Recovery Directorate

cc:  Major P. May

       Regional Administrator

       FEMA Region IV