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Second Appeal Brief
PA ID# 095-03061-00; Middleburgh Central School District
PW ID# 9264; Emergency Public Transportation – Increased Operating Expenses
Conclusion: The Applicant’s transportation of the displaced students at issue does not constitute emergency public transportation. Additionally, the costs were not the result of emergency protective measures but rather were increased operating expenses not eligible for PA.
From August through September 2011, Hurricane Irene caused flooding in Schoharie County, New York, which resulted in the displacement of three students who attended a school operated by the Applicant. The Applicant hired a driver to transport the three displaced students for seven months after the disaster. It submitted a request for reimbursement when it learned that FEMA reimbursed similar costs to other schools. FEMA denied the request, determining it only had authority to provide Direct Federal Assistance (DFA) for the work. On behalf of the Applicant, the Grantee filed an appeal of FEMA’s denial, arguing for reimbursement in the amount of $24,933.80, asserting that: (1) the Applicant was required to provide transportation to the displaced students under the McKinney-Vento Act; (2) Section 419 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, which pertains to emergency public transportation, was not applicable; and (3) because FEMA reimbursed the same cost to other schools as emergency work, it should approve the Applicant’s costs based on precedent. FEMA Region II’s Regional Administrator denied the first appeal, determining the work was not eligible for Public Assistance (PA) reimbursement. It first noted FEMA only has authority to provide DFA for emergency public transportation, and then concluded the transportation at issue in the appeal constituted an ineligible increased operating cost. The Applicant and Grantee raise similar arguments on second appeal as those raised on first appeal.
Authorities and Second Appeals
- Stafford Act §§ 403, 419, 705(c).
- 42 U.S.C. §§ 11432, 11434a.
- 44 C.F.R. §§ 206.201(b), 206.204(c), 206.225.
- PA Guide, at 29, 54, 55, 71-73, 75, 138.
- San Mateo Cnty. Transit Dist., FEMA-1646-DR-CA, at 2 (Dec. 3, 2008).
- Stafford Act § 419 allows FEMA to provide DFA for emergency public transportation that is necessary when a community’s transportation services have been so damaged by a disaster that the vital functions of community life are disrupted.
- The work was not emergency public transportation, and consequently Section 419 is not applicable.
- PA Guide notes that although the cost of providing a service may increase due to or after a disaster, these increased operating costs are generally not eligible for PA unless they are directly related to accomplishing emergency health and safety tasks as part of eligible emergency protective measures.
- The Applicant has not demonstrated any specific emergency health and safety task that was accomplished by the transportation, nor that the costs associated with the transportation were completed as part of an eligible emergency protective measure. As such, the costs are ineligible increased operating expenses.