In August 2004, Hurricane Charley caused damage to the Applicant’s Facility. FEMA prepared Project Worksheet (PW) 7081 to document the damage and associated costs to repair the Facility. PW 7081 Version 1 noted anticipated costs of $498,542.70 and anticipated insurance proceeds of $400,000.00, and thus allocated $98,542.70 in PA funding. At closeout, the Applicant provided FEMA with documentation demonstrating the actual costs totaled $488,673.33 and the actual insurance proceeds it received were $468,673.33, after the Applicant paid a $20,000.00 deductible. FEMA prepared PW 7081 Version 2 with a cost underrun of $78,542.70 reflecting the prior PA allocation less the deductible paid by the Applicant. Subsequently, the Applicant appealed FEMA’s closeout determination claiming additional expenditures including repair work, labor costs and phone charges at a temporary location, were not covered by insurance and should have been included on PW 7081. FEMA sent a Request for Information for a copy of the insurance policy in effect at time of disaster, a Statement of Loss or coverage denial letter from insurer or invoices and receipts for claimed additional expenses, documentation supporting eligibility for phone, storage and relocation costs, payroll information and policies, and timesheets for all force account employees, both regular and overtime rates and fringe benefits info. The Applicant responded with an incomplete copy of its insurance policy, as well as an explanation that the insurance company did not cover the costs associated with the expenditures. In addition, the Applicant stated that many items were the responsibility of its contractor, but it failed to provide such items. FEMA contacted the Applicant again requesting all statements and correspondence from the insurance company, receiving no reply. The Regional Administrator (RA) denied the appeal, stating that the Applicant did not provide documentation to support FEMA’s reimbursement of the costs presented on appeal and also found that the first appeal was untimely. The Applicant appeals the RA’s decision and claims that the additional expenses should have been included in the PW.
Authorities and Second Appeals
- Stafford Act §§ 312, 423.
- 44 C.F.R. §§ 206.206(a), 206.206(c), 206.225(a), 206.250(c).
- 2 C.F.R. §§ 215.21(b)(7), 215.41.
- PA Guide, at 33, 35, 56, 58, 94-95.
- RRP 9525.3, at 2-3.
- City of Springfield, FEMA-1994-DR-MA, at 4.
- Broward County School Board of Florida, FEMA-1609-DR-FL, at 2.
- Village of Waterford, FEMA-4020-DR-NY, at 4.
- Stafford Act § 423, as implemented by 44 C.F.R. § 206.206(c), allows an applicant to appeal any PA determination within 60 days of receiving notice of the appealable action.
- The Grantee did not notify the Applicant until January 2015 of FEMA’s determination, and as such, the Applicant’s first appeal was timely.
- Pursuant to Stafford Act § 312 and 44 C.F.R. § 206.250, FEMA must reduce the amount of PA to an applicant by the amount of financial assistance it will receive from insurance.
- The Applicant did not demonstrate that the repairs and other costs claimed were not a duplication of insurance benefits.
- Per 44 C.F.R. § 206.206(a), an appeal must contain documented justification supporting the applicant’s position. Per 44 C.F.R.
§ 206.228(a)(2), FEMA may reimburse an applicant for regular time and overtime of its employees for eligible permanent work.
- The Applicant did not demonstrate through its support documentation that the labor costs claimed are eligible.
- Though costs of operating a facility may increase due to or after a disaster, increased operating costs for PNP services are not eligible.
- The costs claimed by the Applicant related to setting up and utilizing a phone system following the disaster are increased operating costs and are ineligible for PA.