This policy provides guidance in determining the eligibility of private nonprofit (PNP) organizations and facilities not specifically identified in 44 CFR 206.221. The guidelines for eligibility of PNP organizations and facilities have been refined over the past several years as eligibility issues have surfaced. The regulatory definition of a PNP organization and facility can be found in 44 CFR 206.221. However, PNP organizations offer so many types of services that it still is necessary to provide this additional policy guidance regarding organizations and services listed in the regulations and in the preamble of the final rule of September 14, 1993. The terms, "purposes," "activities," "uses," and "services" as used in this policy are derived from the governing statute, regulations and customary usage and may overlap.
This policy is archived and has been superseded by the policy currently in effect.
Date Published: April 25, 2000
Response and Recovery Directorate Policy Number: 9521.3
Title: Private Nonprofit Facility (PNP) Eligibility
Purpose: This policy provides guidance in determining the eligibility of private nonprofit (PNP) organizations and facilities not specifically identified in 44 CFR 206.221.
Scope and Audience: This policy is applicable to all major disasters and emergencies declared on or after the publication date of this policy. It is intended for Federal Emergency Management Agency (FEMA) personnel involved in making eligibility determinations for the Public Assistance Program.
Background: The guidelines for eligibility of PNP organizations and facilities have been refined over the past several years as eligibility issues have surfaced. The regulatory definition of a PNP organization and facility can be found in 44 CFR 206.221. However, PNP organizations offer so many types of services that it still is necessary to provide this additional policy guidance regarding organizations and services listed in the regulations and in the preamble of the final rule of September 14, 1993. The terms, "purposes," "activities," "uses," and "services" as used in this policy are derived from the governing statute, regulations and customary usage and may overlap.
Policy: Guidance for determining the eligibility of PNP organizations and their facilities follows:
Applicants - Basic Requirements.
The applicant must have a ruling letter from the U.S. Internal Revenue Service or satisfactory evidence from the State that they are nonprofit organizations doing business under State law.
The applicant must meet requirements as listed in 44 CFR 206.221 - 44 CFR 206.223, including the need to own or operate an eligible facility and to be legally responsible for disaster-related repairs.
Facilities - Basic Requirements/Information.
The facility, at a minimum, must meet the criteria outlined in 44 CFR 206.221(e).
The facility must be primarily used for one of the services or facilities listed in 44 CFR 206.221(e).
The facility must be open to the general public.
Eligible PNP Facilities. The following generally are eligible for assistance:
educational facilities (as defined in 44 CFR 206.221 (e)),
utilities (as defined in 44 CFR 206.221 (e)),
emergency facilities (as defined in 44 CFR 206.221 (e)),
medical facilities (as defined in 44 CFR 206.221 (e)),
custodial care facilities (as defined in 44 CFR 206.221 (e)),
facilities which provide essential governmental services, such as:
senior citizen centers,
shelter workshops, and
examples of facilities that provide health and safety services of a governmental nature include:
low-income housing (as defined by Federal, State or local law or regulation),
alcohol and drug rehabilitation centers,
residences and other facilities offering programs for battered spouses,
animal control facilities directly related to public health and safety,
facilities offering food programs for the needy, and
daycare centers for children, senior citizens and those individuals with special needs (e.g., those with Alzheimer's disease, autism, muscular dystrophy, etc.).
Ineligible PNP Facilities. Some PNP facilities that might have been assisted prior to 1993 are no longer eligible. Examples include:
job counseling and training centers,
facilities for advocacy groups not directly providing health services,
public housing (other than low-income),
performing arts facilities,
facilities maintained by property owners associations such as roads and recreational facilities (except those facilities that could be classified as utilities or emergency facilities), and
daycare centers for other than those included above as eligible.
Facility Eligibility Based on Primary Use. Even though an organization that owns the facility is an eligible PNP, the facility itself must be primarily used for eligible services. Space, time and number of persons involved in the eligible purposes/missions of an organization are parameters in determining if a facility is eligible.1
A facility must have over 50% of its space dedicated to eligible uses in order for any of the facility to be eligible. Common space (lobbies, restrooms, utility closets, janitorial closets, elevators, stairs, parking, etc.) is not included in calculating the proportion. A facility is assessed as an entire structure and not its individual parts such as a basement, floor or building wing.
When space is not dedicated to specific activities, the primary use is determined by examining the amount of time for eligible services and number of people using the facility for eligible services.
Space dedicated to or primarily used for religious purposes is not eligible for Public Assistance Program assistance. An otherwise eligible use occurring in a place of worship does not create eligibility for the place of worship. However, if a potentially eligible function occurs separately or in space segregated from the place of worship, it will be evaluated for eligibility on its own merits vis-à-vis its space.
FEMA will consider damages to the entire facility, not just to the portion occupied by the eligible services. However, the assistance is in direct proportion to the percentage of space dedicated to eligible services. The balance of costs to repair damages or replace a facility will not be funded by FEMA.
Contents that are the responsibility of an ineligible occupant are not eligible for reimbursement if damaged.
Ownership. There are instances when an eligible organization will use part of a facility for eligible services and lease the remaining portion to an ineligible organization. In other situations an eligible organization may be a partial owner in a facility with an ineligible organization. The following guidelines are to be used in determining the eligible costs for such facilities.
Total Ownership by PNP. A facility must have over 50% of its space dedicated to an eligible purpose/mission in order to be eligible.
If the facility meets the 50% threshold, then the eligibility of the repairs is in direct proportion to the percentage of space dedicated to its eligible purpose/mission. In any event, the applicant must repair the entire building. Exceptions to repairing the entire building may be granted in unusual situations.
A facility that does not meet the 50% space threshold is not an eligible PNP facility.
A Section 406 Hazard Mitigation grant would be eligible at the same percentage as the repair. However, the applicant must mitigate the entire building if the applicant opts to request the pro-rated mitigation project funding.
Partial Ownership by PNP. Reimbursement depends upon the percentage of ownership, amount of space being occupied by the applicant and amount of space dedicated to eligible services. The grant assistance may fund work in any part of the facility; however, reimbursement is contingent upon the entire facility being repaired. Exceptions to repairing the entire building may be granted in unusual situations.
The eligible applicant: (1) must own more than 50% of the facility, and (2) must occupy and use for eligible services more than 50% of the facility's space at the time of the disaster. If the eligible space meets that threshold, funding is in direct proportion to the percentage of space dedicated to the eligible use.
The percentage eligible cannot exceed the percentage represented by the space being occupied by the applicant. For example, if the applicant owns 70% of the building but only uses 60% for its eligible purposes, then the maximum eligible percentage is 60%.
A Section 406 Hazard Mitigation grant would be eligible at the same percentage as the repair. However, the applicant and/or other owners must mitigate the entire building if the pro-rated mitigation project funding is requested.
Alternate project or improved project funding may be approved but reimbursement is limited to the eligible funding of the original repairs. A Section 406 Hazard Mitigation grant is not eligible for either of these funding options with the exception of an improved project that maintains the same facility for which the mitigation is approved.
If a partnership agreement states the repair responsibilities of each partner, the eligible reimbursement will be based on the percentage of responsibility.
Defining "open to the general public." Being "open to the general public" and "providing services to the general public," are requirements for an organization to be eligible for assistance. There are organizations that charge membership fees for use of their facilities. The collection of membership fees may cause an organization to be ineligible because the fee may restrict use by the general public.
An organization is ineligible when:
A membership fee is of such magnitude as to preclude access to the facility by a significant portion of the community.
The membership fee clearly exceeds what would be considered an appropriate user fee based upon a reasonable assumed use of a facility.
Membership is limited to a certain number of people in the community.
Membership is limited to a defined group of individuals who have a financial interest in the facilities managed by the PNP (for example, a condominium association).
Membership excludes individuals of certain discrete groups, or is limited to individuals from some geographic area that is more restrictive than the community from which the facility in question could normally be expected to draw users.
A review is required, but an organization likely meets the "open to the general public" requirement if:
It is open to the general public,
Membership fees, if any, are nominal,
Membership fees, if any, can be waived in instances in which someone can show inability to pay the fee, and
Use restrictions, if any, are clearly related to the nature of the facility. (Facilities for senior citizens, child day-care, children with cancer and other disabilities, or abused spouses could be restricted to that group and might still be eligible.)
Lease Agreements. An eligible applicant must be legally responsible for disaster-related repairs whether they own a facility or lease it. An eligible applicant that leases an asset of an otherwise ineligible applicant and uses it in a way that normally would qualify it for assistance may be eligible for assistance. The lease, pre-dating the disaster, must clearly specify that the eligible applicant is responsible for repair of major damage and not just maintenance or minor repairs.
Examples. Several examples are offered for clarification purposes in the attached Appendix A. In addition, RR Policy #9521.1, "Community Center Eligibility," should be reviewed as a complementary policy and for more examples of partial eligible use.
Memorandum from Grant C. Peterson to Regional Directors dated April 27, 1990, Subject: Private Nonprofit Facilities.
Memorandum from Dennis H. Kwiatkowski to Regional Directors dated October 4, 1993, Subject: Final Rules - 44 CFR Part 206- Private Nonprofit Facilities.
Memorandum from Richard W. Krimm to Regional Directors and Disaster Recovery Managers dated May 4, 1994, Subject: Private Nonprofits - Eligibility of "essential governmental services facilities".
Memorandum from William C. Tidball to Leland R. Wilson dated July 22, 1996, Subject: Guidance for Eligibility of Medical Office Buildings.
All other relevant provisions of other public assistance policy documents on this subject.
Authorities: Robert T. Stafford Disaster Relief and Emergency Assistance Act, as amended; 44 CFR 206.221 - 44 CFR 206.223.
Originating Office: Infrastructure Division, Response and Recovery Directorate
Review Date: Five years from date of publication.
Lacy E. Suiter
Executive Associate Director
Response and Recovery Directorate
Distribution: Regional Directors, Regional and Headquarters R&R Division Directors
1 PNP irrigation facilities used in delivering water for essential governmental services are exempt from this requirement.