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Second Appeal Analysis
PA ID# 071-UDDT8-00; Knowledge is Power Program (KIPP)
PW ID# 20948; Direct Result of Disaster – Legal Responsibility
Hurricane Katrina struck Louisiana on August 29, 2005, causing catastrophic damage throughout Orleans Parish. A school building, which housed a Knowledge is Power Program (KIPP or Applicant) charter school, suffered severe damage and resulted in the displacement of the Applicant’s educational services. For nine months following the disaster, the Applicant operated its charter school in Houston, Texas but returned to a temporary facility in New Orleans for the 2006-2007 school year. The Applicant provided its 5th through 8th grade curriculum, as specified in the Charter School Contract (but under the name of KIPP Believe College Prep). The temporary facility was located six miles from the original damaged school and consequently required students to be transported to the new location. These transportation services, which the Recovery School District (RSD) contracted to a private busing company to perform, provided service to students of several damaged schools that were relocated to temporary facilities across Orleans Parish. FEMA reimbursed RSD for transportation costs through September 30, 2013; the date FEMA determined RSD would resume normal bus service operations.
In 2011, the Applicant entered into a new charter school contract with the Louisiana Board of Elementary and Secondary Education (BESE), which authorized provision of kindergarten through 4th grade education services at a new school facility. This new school, KIPP Believe Primary, opened at an available temporary modular facility for the 2012-2013 school year. The Applicant and RSD entered into a Shared Service Agreement in July 2012 that stipulated the Applicant would contract with RSD for support services including transportation of students.
The Applicant requested $364,299.00 in Public Assistance (PA) funding for transportation costs incurred during the 2012-2013 school year. In March 2015, FEMA prepared project worksheet (PW) 20948 to document the request and its determination that the transportation costs associated with KIPP Believe Primary were ineligible because (1) they were not incurred as a direct result of the declared event; (2) KIPP Believe Primary was not an eligible Applicant, as it was not in existence at the time of the disaster; and (3) FEMA already reimbursed RSD in a separate PW for busing costs associated with the temporary modular facility used by the Applicant for the 2012-2013 school year. The Grantee notified the Applicant of the determination in a letter dated June 11, 2015.
On August 6, 2015, the Applicant appealed FEMA’s decision to deny its request for $364,299.00 in transportation costs. The Applicant argued that KIPP New Orleans School, the non-profit corporation that manages the charter schools, is the eligible applicant not the individual charter school named KIPP Believe Primary. The Applicant asserted that it was in existence as an approved charter school provider at the time of Hurricane Katrina and was operating a school that provided educational services similar to that of KIPP Believe Primary, an affiliate of KIPP Believe College Prep. Additionally, the Applicant argued that PA funding for emergency public transportation is available even if a facility is not damaged and that the Applicant in fact incurred such costs. The Applicant indicated that because FEMA acknowledged a need for supplemental transportation through a PW written for RSD to cover the cost of student transportation from 2006-2013, the Applicant’s costs should also be eligible for assistance as a Type 5 Charter School provider overseen by RSD. The Governor’s Office of Homeland Security (Grantee) supported the Applicant’s appeal through its analysis, in a letter dated October 5, 2015.
The Regional Administrator (RA) denied the first appeal on April 15, 2016 finding that although the Applicant was in existence at the time of the disaster and eligible for PA funding as a private non-profit, neither the Applicant’s KIPP Believe Primary facility nor the offering of kindergarten through 4th grade educational services existed at the time of the disaster. As such, the RA concluded that associated transportation services are not eligible pursuant to the terms of 44 C.F.R. § 206.225(d), emergency public transportation. Additionally, the appeal was denied because the temporary transportation request is beyond the August 29, 2009 completion of emergency work deadline. The Grantee notified the Applicant in a letter dated April 26, 2016.
In its May 24, 2016 second appeal, the Applicant argues that FEMA regulations and policy in effect at the time of the disaster did not require the provision of the exact same education services in order to be eligible for PA funding. Additionally, the Applicant argues that its transportation costs should be reimbursed because FEMA funded RSD’s emergency transportation costs for students assigned to temporary facilities through the 2013 school year even though RSD assumed control over the additional schools in November 2005, three months after Hurricane Katrina. Moreover, the Applicant’s charter school students were all part of the RSD educational program. The Grantee forwarded the appeal on July 21, 2016 with a letter and analysis supporting the Applicant’s arguments.
Section 403 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act allows for the provision of temporary facilities for schools and other essential community services. Under federal regulation, FEMA may fund the cost of emergency public transportation to public places and other such places as necessary for the community to resume its normal patterns of life. To be eligible, however, emergency public transportation work must meet all other regulatory grant requirements.
Work Eligibility - Direct Result of the Declared Event
An item of work must be required as the result of the major disaster event in order to be eligible for assistance. At the time of the disaster, pursuant to a charter contract, the Applicant operated a school for 5th to 8th grade students. The charter school’s intended enrollment was for students residing within walking distance to the school, defined as a one mile radius. Hurricane Katrina severely damaged the school, displaced students to a temporary facility, and disrupted the ability for those students to walk to their school. This necessitated transportation of those 5th to 8th grade students to KIPP Believe College Prep’s temporary facility beginning with the 2006–2007 school year. FEMA accordingly reimbursed RSD for providing emergency transportation of school students until a permanent school became available or at the latest, September 30, 2013, a date FEMA determined that the RSD returned the bus service function to normal operations.
In this instance, however, the Applicant was not operating KIPP Believe Primary or a similar charter school for kindergarten through 4th grade students at the time of the disaster. Consequently, the Applicant did not have a need nor responsibility to provide emergency transportation for such students following the disaster. Instead, this transportation need arose nearly seven years after Hurricane Katrina when the Applicant entered into a new charter school contract with BESE in June 2011 for the 2012-2013 school year. The Applicant provided the newly authorized kindergarten through 4th grade educational services under a new school name and in a separate location from KIPP Believe College Prep. As the KIPP Believe Primary facility and its associated educational services did not exist when Hurricane Katrina struck, the need to provide transportation for kindergarten through 4th grade students was not required as a result of Hurricane Katrina but rather by the creation of the new charter school. Consequently, the $364,299.00 in transportation costs are not eligible for reimbursement.
In accordance with 44 C.F.R. 206.223(a)(3), an item of work must be the legal responsibility of the eligible applicant to be eligible for financial assistance. FEMA applies this provision “at the time of the disaster.”
The Applicant, pursuant to its original June 16, 2005 charter school contract, was responsible for providing educational services to 5th through 8th grade students at a specific school location. In order to expand educational services, the Applicant was required to receive written approval from BESE. The Applicant became responsible for kindergarten through 4th grade educational services at a separate school location, KIPP Believe Primary, almost seven years after the disaster. As the Applicant did not have legal responsibility to provide educational services or transportation for kindergarten through 4th grade students at the time of the disaster and the transportation costs incurred during the 2012-2013 school year are not eligible for PA funding.
The Applicant did not have legal responsibility at the time of Hurricane Katrina to provide the KIPP Believe Primary charter school curriculum. Moreover, the transportation costs associated with establishing the school, nearly seven years after the event, were not incurred as a direct result of the disaster. Consequently, those costs are not eligible for PA.
 The Applicant’s legal name is KIPP New Orleans, Inc. as verified by the Articles of Incorporation (Feb. 2, 2005). However, variations of the name appear in other official documents such as KIPP New Orleans Schools, KIPP New Orleans Schools Inc. or simply KIPP which is the name FEMA documents use.
 Charter School Contract between KIPP New Orleans, Inc. and La. State Board of Elementary and Secondary Educ., 2 (Nov. 23, 2005) [hereinafter Charter School Contract] (the charter school was originally named Edward H. Philips Learning Academy).
 Project Worksheet 19286, Recovery School District, Version 2, at 6 (July 23, 2012).
 Letter from Dir., FEMA La. Recovery Office, to Deputy Dir. Disaster Recovery Div., Governor’s Office of Homeland Sec. (Jan. 14, 2014).
 Type 5 Charter Contract between KIPP New Orleans Schools: Edwards H. Phillips Learning Academy, and the La. Dep’t of Educ. (June 1, 2011) [hereinafter Type 5 Charter Contract].
 Shared Service Agreement between KIPP Schools and Dep’t of Educ., Recovery School Dist., at addendum A (Sep. 13, 2012) (including services for nine charter schools under the purview of the Applicant).
 Project Worksheet 20948, KIPP, Version 0 (May 6, 2015).
 The Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988, Pub. L. No. 93-288, § 403(a)(3)(D), 42 U.S.C. § 5170b(a)(3)(D) (2003).
 Title 44 Code of Federal Regulations (44 C.F.R.) § 206.225(d) (2004).
 Id. § 206.223(a)(1).
 Charter School Contract, Exhibit C, att. 44-1.
 Id. Exhibit C, att. 35-1.
 Type 5 Charter Contract, Exhibit E, at 1.
 Public Assistance Guide, FEMA 322, at 25 (Oct. 1999).
 Charter School Contract, Exhibit C, att. 44-1.
 Type 5 Charter Contract, Exhibit E, at 1.