Appeal Timeliness, Support Documentation

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	FEMA-4031
Applicant	New York State Department of Transportation
Appeal Type	Second
PA ID#	000-U0065-00
PW ID#	PW 2594
Date Signed	2017-12-19T00:00:00

Conclusion:  The New York State Department of Transportation’s (Applicant) second appeal is untimely because the New York State Division of Homeland Security and Emergency Services (Grantee) submitted it beyond the 60‑day regulatory timeline.  The second appeal would otherwise be denied for failing to comply with 44 C.F.R. § 206.206(a), which requires the Applicant to substantiate its appeal with documented justification.   

 

Summary Paragraph

Tropical Storm Lee caused damage throughout the State of New York from September 7 to 11, 2011, which prompted the Applicant to activate its Statewide Transportation Incident Coordination Center (STICC) and Regional Emergency Operations Centers (EOCs).  FEMA prepared Project Worksheet (PW) 2594 to document lodging and meal costs incurred by the Applicant’s force account labor while traveling to disaster-impacted areas to perform emergency protective measures at its STICC and Regional EOCs.  On June 20, June 27, and July 3, 2012, a FEMA Project Specialist notified the Applicant of its responsibility to provide the necessary documentation for PW 2594.  After contacting the Applicant multiple times, FEMA received no documentation of the travel expenses incurred, and obligated zero dollars for PW 2594 in October 2012.  The Applicant appealed asserting it was unable to submit documentation in a timely manner due to lack of staff and the magnitude of the disaster, and provided a travel expense report and a sampling of its travel expense documentation to support its appeal.  The Grantee supported the appeal and argued: (1) the Applicant’s costs were incurred to deploy its force account labor to provide disaster-related construction assistance; (2) the costs and the underlying work would have been deemed eligible if the Applicant had provided proper documentation; and (3) the Applicant’s sampling of travel expense documentation complied with FEMA policy.  The FEMA Region II Regional Administrator (RA) denied the appeal concluding the Applicant did not provide documentation demonstrating that the claimed costs were incurred in the performance of eligible emergency protective measures, or that those costs were necessary and reasonable under OMB Circular A-87.  The Grantee received the Applicant’s second appeal on May 25, 2016, arguing that the requested costs were incurred by its employees to save lives and to protect public health and safety.  The Grantee forwarded the appeal on August 8, 2016, which FEMA received on August 12, 2016.  The Grantee’s support letter argues: (1) the Applicant was not required to provide anything to FEMA for PW 2594 other than its claimed costs because “the PW was eligible” according to a comment in EMMIE;  (2) FEMA did not request detailed work descriptions and work locations until four years after the PW was prepared; (3) the Applicant’s November 5, 2015 response to the Final Requests for Information (RFIs) in two other appeals should be included as part of this appeal’s administrative record; (4) the Applicant provided an adequate description of the underlying work because it provided each employee’s job title in a spreadsheet attached with its November 5, 2015 Final RFI response for two other appeals; (5) the work locations are discernable from the lodging locations in the Applicant’s travel expense documentation; and (6) the additional documentation submitted with the Applicant’s second appeal is a sufficient substitute for work logs. 

Authorities and Second Appeals

• Stafford Act §§ 403, 423.

• 44 C.F.R. §§ 206.201(b), 206.206(c)(2), 206.225.

• PA Guide, at 40, 73, 103–109, 137.

• PA Applicant Handbook, at 33–34, 53–56.

• Chambers County, FEMA-1791-DR-TX, at 8 (May 25, 2017).

• Department of Transportation, FEMA-4068-DR-FL, at 5 (Aug. 5, 2016).

• Florida Department of Transportation, FEMA-1785-DR-FL, at 3 (July 9, 2016).

• Village of Waterford, FEMA-4020-DR-NY, at 4 (Sept. 4, 2014).

 

Headnotes

• Per 44 C.F.R. § 206.206(c)(2), a grantee must review and forward an applicant’s appeal to FEMA within 60-days of receipt.  FEMA has no authority under the Stafford Act or 44 C.F.R. to grant time extensions for filing appeals.

  • The Grantee submitted the second appeal 79 days after receipt, thus it is untimely.

• Pursuant to 44 C.F.R. § 206.206(a), the burden to substantiate appeals with documented justification falls to the applicant, who must clearly articulate its position in addition to providing supporting documentation.      

  • The Applicant has not demonstrated compliance with § 206.206(a) because it does not demonstrate the eligibility of its claimed lodging and meal costs, nor does it show its costs were tied to eligible work.

 

 

 

Appeal Letter

Appeal Analysis

Background

Tropical Storm Lee caused damage throughout the State of New York from September 7 to September 11, 2011, which prompted the New York State Department of Transportation (Applicant) to activate its Statewide Transportation Incident Coordination Center (STICC) and Regional Emergency Operations Centers (EOCs) in order to provide: (1) coordination of the Applicant’s assets and personnel; (2) administrative support for the affected regions; (3) information to the public regarding travel, closures, detours, and damaged areas; and (4) support for local agencies as requested by the New York State Division of Homeland Security and Emergency Services (Grantee).  FEMA prepared Project Worksheet (PW) 2594 to document lodging and meal costs incurred by the Applicant’s force account labor while traveling to disaster-impacted areas of the state to perform emergency protective measures. 

 

On June 20, June 27, and July 3, 2012, a FEMA Project Specialist notified the Applicant of its “responsibility to provide the necessary documentation to produce this project worksheet.”[1]  After contacting the Applicant multiple times, FEMA received no documentation of the travel expenses incurred.  Consequently, FEMA obligated zero dollars for PW 2594, and sent notification of its determination on May 2, 2013.

 

First Appeal

In a letter dated June 19, 2013, the Applicant appealed FEMA’s determination to obligate zero dollars in PW 2594, and requested $363,996.08 in lodging and meal costs incurred by its employees deployed to disaster-impacted areas of the state to perform emergency work.[2]  The Applicant argued that it was unable to submit documentation of its travel expenses in a timely manner due to the magnitude of the disaster and its lack of staff. 

 

The Applicant’s support documentation for its appeal included a travel expense report and a self-selected sampling of travel expense documentation.  The travel expense report provided information for 596 instances of travel, such as travel dates, lodging locations (by county), and lodging and meal costs.  The lodging locations listed for 210 of those instances of travel were outside the disaster’s designated area for Public Assistance (PA).[3]  The sampling of travel expense documentation included 48 travel vouchers and 24 travel advance forms, but 13 of those travel vouchers and six of the travel advance forms referenced Hurricane Irene (FEMA-4020-DR-NY) as the purpose of travel.  The Applicant also explained that it would make all other travel expense documentation available for review at its office upon request. 

 

The Grantee submitted the first appeal to FEMA with a recommendation letter dated August 5, 2013, and an attached support memorandum.[4]  The Grantee argued that FEMA should grant the appeal because the claimed travel expenses and underlying work would have been deemed eligible if the Applicant had provided the proper support documentation.  The Grantee also stressed that the Applicant provided a sufficient random sample of documentation in accordance with FEMA policy, and offered to make all other documentation available upon request.  Lastly, the Grantee explained that it conducted a review of the Applicant’s support documentation, and found it sufficient to satisfy the requirements outlined in the PA Guide.[5]

 

FEMA issued a Final Request for Information (RFI) on September 25, 2015, advising the Applicant that the appeal would likely be denied due to lack of supporting documentation.[6]  FEMA requested that the Applicant provide any other information supportive of its appeal, such as: (1) evidence that the work associated with the claim constitutes eligible emergency protective measures;[7] (2) reasonably detailed descriptions of the activities and locations of the work performed on a daily basis by each employee in connection with the claimed lodging and meal costs;[8] and (3) the Applicant’s written policies pertaining to reimbursement of lodging and meal costs.  The Applicant did not respond to the Final RFI.

 

The FEMA Region II Regional Administrator (RA) denied the appeal on March 25, 2016.  The RA found that the Applicant did not demonstrate the costs were incurred for eligible emergency protective measures because it did not provide documentation describing the activities and the locations of the work performed.  The RA also concluded that the Applicant did not demonstrate its costs were necessary and reasonable for the work performed in accordance with the Office of Management and Budget Circular A-87, Cost Principles for State, Local, and Indian Tribal Governments.[9]

 

Second Appeal

In a letter dated May 25, 2016, the Applicant appeals the RA’s decision and requests $363,996.08 in lodging and meal costs incurred by its employees deployed to disaster-impacted areas of the state to perform emergency protective measures.[10]  On second appeal, the Applicant argues that FEMA should grant the appeal because the claimed costs were incurred for emergency protective measures to save lives and to protect public health and safety.  The Applicant also submitted additional support documentation with the second appeal, which includes its November 5, 2015 Final RFI response for two other appeals (FEMA-4031-DR-NY, PW 2595 and FEMA-4020-DR-NY, PW 8977) and its Incident Command Procedures for three STICC positions (i.e., Information Officer, Finance and Administration Section Chief, and Liaison Officer).

 

The Grantee submitted the second appeal to FEMA with a recommendation letter dated August 8, 2016, and an attached support memorandum.[11]  In its memorandum, the Grantee argues that the Applicant was not required to provide “anything other than the documented costs” because the PW was found eligible according to a comment in the Emergency Management Mission Integrated Environment (EMMIE)[12] dated October 29, 2012.[13]  The Grantee also states that the attached November 5, 2015 Final RFI response for two other appeals should be included as part of this appeal’s administrative record. 

 

In addition, the Grantee emphasizes that the Applicant might have had access to the information needed to create daily work logs if FEMA would have requested them during the PW’s initial preparation, but it was impossible for the Applicant to retrospectively create the work logs upon FEMA’s request in the Final RFI four years later.  The Grantee also asserts that the work locations are discernable from the lodging locations in the Applicant’s travel expense documentation.  Further, the Grantee states that the employee job titles provided with the Applicant’s November 5, 2015 Final RFI response adequately describe the work performed, and the Incident Command Procedures for three STICC positions submitted with the second appeal are a sufficient substitute for daily work logs.

 

Discussion

 

Appeal Timeliness

The Robert T. Stafford Disaster Relief and Emergency Act (Stafford Act) § 423 provides that: “[a]ny decision regarding eligibility for, from, or amount of assistance under this title may be appealed within 60 days after the date on which the applicant for such assistance is notified of the award or denial of award of such assistance.”[14]  Furthermore, Title 44 of the Code of Federal Regulations (44 C.F.R.) § 206.206(c)(2) requires the grantee to review and forward an applicant’s appeal, together with a written recommendation, to the FEMA RA within a 60-day timeframe triggered by the date the grantee receives the applicant’s appeal.[15]  Neither the Stafford Act nor 44 C.F.R. provides FEMA with authority to grant time extensions for filing appeals.[16]

 

The Grantee received the Applicant’s second appeal on May 25, 2016, which it transmitted to FEMA with a letter dated August 8, 2016.[17]  FEMA Region II received it on August 12, 2016.[18]  As the Grantee forwarded the second appeal beyond the 60-day timeframe stipulated by 44 C.F.R. § 206.206(c)(2), the submission is untimely.  Timeliness aside, the Applicant’s second appeal would otherwise be denied because it did not comply with other appeal procedures.

 

Support Documentation

Pursuant to 44 C.F.R. § 206.206(a), an appeal must contain documented justification supporting an applicant’s position.[19]  The burden to fully substantiate appeals with documented justification falls exclusively to the applicant and hinges upon its ability to produce its own records and to clearly explain how those records should be interpreted as relevant to support the appeal.[20]  In considering the second appeal, FEMA must rely exclusively upon the administrative record.  In order to establish eligibility of the Applicant’s lodging and meal costs requested on appeal, the administrative record must contain information demonstrating those costs are directly tied to the performance of eligible work.[21]  More specifically, the record must include the information necessary to substantiate the Applicant’s claim that it incurred those costs to perform emergency protective measures.

 

Section 403(a) of the Stafford Act, as implemented by 44 C.F.R. § 206.225, authorizes FEMA to reimburse costs for emergency protective measures necessary to eliminate or lessen immediate threats to life, public he­­­alth, safety, and improved property.[22]  Examples of eligible emergency protective measures include “clearance of roads . . . necessary to the performance of emergency tasks” and “dissemination of public information and assistance regarding health and safety measures.”[23]  An applicant’s activation of a State or local EOC may also be eligible as an emergency protective measure, but the applicant must keep track of the duties performed by EOC personnel.[24]  Under the PA program, it is the applicant’s responsibility to document all costs and to provide FEMA with the necessary documentation supporting the eligibility of its claims.[25]  Both the PA Applicant Handbook and PA Guide provide detailed information on the documentation and record keeping requirements for PA projects, as well as recommended best practices.[26]

 

The Applicant argues that it incurred the claimed lodging and meal costs in the performance of emergency protective measures to save lives and to protect public health and safety when it deployed its force account labor and activated the STICC and Regional EOCs.  However, the Applicant’s support documentation provides no description of the activities or locations of actual work performed, not did it describe any specific eligible emergency protective measures its personnel performed in connection with the claimed costs.  Its documentation consists of a travel expense report listing 596 instances of travel and a sampling of travel expense backup documentation, but includes no information about the underlying work performed.  The Applicant was also required to keep track of the work performed by its EOC personnel,[27] but did not provide that information in its support documentation.  

 

The Grantee claims that the Applicant provided adequate descriptions of the work by providing employee job titles[28] in its November 5, 2015 Final RFI response for two other appeals, and the STICC Incident Command Procedures submitted by the Applicant on second appeal are a sufficient substitute for daily work logs.[29]  The Grantee also insists that the work locations are discernable from the lodging invoices provided in the Applicant’s sampling of documentation.  Even if the November 5, 2015 Final RFI response and Incident Command Procedures submitted on second appeal could be included in the administrative record, both do not describe any of the actual work performed, nor do they provide any information needed to demonstrate the underlying work’s eligibility.  Also, the lodging invoices contain some of the lodging locations associated with the Applicant’s claim, but the Grantee does not explain how or why the lodging invoices have any relevance to the work locations.  The Applicant’s documentation also contains inconsistencies and patterns of deviation that have not been explained to justify eligibility.[30]  For example, 210 of the lodging locations in that documentation were in counties outside of the disaster’s designated area, and the sampling of documentation included travel expenses related to Hurricane Irene.

 

The Grantee argues that it was impossible for the Applicant to retrospectively create daily work logs with the level of detail requested in the Final RFI, and FEMA should have requested that information from the Applicant four years earlier.  As noted in the PW, a FEMA Project Specialist made the Applicant aware of its “responsibility to provide the necessary documentation to produce this project worksheet” on June 20, June 27, and July 3, 2012, and received no documentation supporting the Applicant’s claim before obligating zero dollars for PW 2594 in October 2012.[31]  Regardless, it is the applicant’s responsibility to document all costs and to provide FEMA with the necessary documentation supporting the eligibility of its claims even if FEMA does not specifically request it.[32] 

 

As explained above, the Applicant did not demonstrate the eligibility of its claimed lodging and meal costs, nor did it show those costs were tied to eligible work.  Consequently, the Applicant’s second appeal is not supported with documented justification in accordance with 44 C.F.R. § 206.206(a).

 

Conclusion

The Applicant’s second appeal is untimely because the Grantee submitted it beyond the timeframe stipulated by 44 C.F.R. § 206.206(c)(2).  Timeliness aside, the appeal does not comply with 44 C.F.R. § 206.206(a), which requires the Applicant to substantiate its appeal with documented justification.  Accordingly, the Applicant’s second appeal is denied. 

 

[1] Project Worksheet 2594, New York State Department of Transportation, Version 0 (Oct. 29, 2012).

[2] Letter from Dir. of Accounting Bureau, N.Y. State Dep’t of Transp., to Project Officer, N.Y. State Div. of Homeland Sec. and Emergency Servs. (June 19, 2013). 

[3] The counties designated for PA funding under FEMA-4031-DR-NY were approved for all categories of work (categories A–G), and include: Broome, Chemung, Chenango, Delaware, Herkimer, Montgomery, Oneida, Orange, Otsego, Schenectady, Schoharie, Tioga, Tompkins, and Ulster.  The Applicant’s travel expense report included 210 instances of travel with lodging locations outside the disaster’s designated area in counties such as Albany, Clinton, Cortland, Essex, and Greene.

[4] Letter from Alternate Governor’s Authorized Representative, N.Y. State Div. of Homeland Sec. and Emergency Servs., to Acting Reg’l Adm’r, FEMA Region II (Aug. 5, 2013).

[5] Id. at Attachment (citing to the Public Assistance Guide, FEMA 322, at 103 (June 2007) [hereinafter PA Guide]).

[6] Letter from Recovery Div. Deputy Dir., FEMA Region II, to Dir. of Accounting Bureau, N.Y. State Dep’t of Transp., and Alt. Governor’s Auth. Repr., N.Y. State Div. of Homeland Sec. and Emergency Servs. (Sept. 25, 2015) [hereinafter Final RFI].

[7] FEMA advised the Applicant to refer to the PA Guide at 54–55 and 71–74 for guidance on whether the claimed costs constitute ineligible increased operating expenses rather than eligible emergency protective measures.  Id. at 2; PA Guide, at 54–55, 71–74.

[8] FEMA explained this could be achieved by “categorizing the type of work performed and then listing the employees that were assigned to perform the described work.”  Final RFI, at 2.

[9] Office of Mgmt. & Budget, Exec. Office of the President, OMB Circular A-87, Cost Principles for State, Local, and Indian Tribal Governments (2004) (codified at 2 C.F.R. pt. 225).

[10]  Letter from Dir. of Accounting Bureau, N.Y. State Dep’t of Transp., to Disaster Assistance Officer, N.Y. State Div. of Homeland Sec. and Emergency Servs. (May 25, 2016). 

[11] Letter from Comm’r, N.Y. State Div. of Homeland Sec. and Emergency Servs., to Reg’l Adm’r, FEMA Region II (Aug. 8, 2016) [hereinafter Grantee’s Second Appeal Letter].

[12] EMMIE is FEMA’s internet-based grants management system.

[13] See id. at Attachment.  The Grantee states that an October 29, 2012 comment in EMMIE noted that “the PW was eligible, but that the costs needed to be documented.” Id.  However, the actual comment in EMMIE dated October 29, 2012, states: “[n]o issue found, work is eligible.”  Another comment in EMMIE dated October 26, 2012, also states: “the project was written for zero dollars due to lack of documentation as per FEMA Public Assistance Guide (FEMA 322, June 2007) pg. 103 . . . [t]he time and materials method is used to summarize actual costs of force account labor, equipment, and materials.  Costs must be documented by payroll information, equipment logs, or usage records, and other records, such as invoices, receipts, or work orders prepared by the applicant.”

[14] The Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988, Pub. L. No. 93-288, § 423(a), 42

U.S.C. 5189a (2007).

[15] 44 C.F.R. § 206.206(c)(2) (2010).

[16] See FEMA Second Appeal Analysis, Florida Dep’t of Transp., FEMA-1785-DR-FL, at 3 (July 19, 2016) (citing FEMA Second Appeal Analysis, Broward County School Board of Florida, FEMA-1609-DR-FL, at 2 (Sep. 4, 2014)).

[17] See Email from Assoc. Accountant, Accounting Bureau, N.Y. State Dep’t of Transp., to Disaster Assistance Officer, N.Y. State Div. of Homeland Sec. and Emergency Servs. (May 25, 2016, 11:01 AM) (transmitting the Applicant’s second appeal letter to the Grantee via email attachment).

[18] See Memorandum from Reg’l Adm’r, FEMA Region II, to Assistant Adm’r, Recovery Directorate, FEMA (Aug. 18, 2016) (confirming that FEMA Region II received the Grantee’s second appeal transmission on August 12, 2016); see also Grantee’s Second Appeal Letter (displaying a date stamp confirming FEMA received the appeal from the Grantee on August 12, 2016).

[19] 44 C.F.R. § 206.206(a).

[20] FEMA Second Appeal Analysis, Village of Waterford, FEMA-4020-DR-NY, at 4 (Sep. 4, 2014); FEMA Second Appeal Analysis, Department of Transportation, FEMA-4068-DR-FL, at 5 (Aug. 5, 2016).

[21] PA Guide, at 40.

[22] Stafford Act § 403(a); 44 C.F.R. § 206.225.

[23] Stafford Act § 403(a)(3).

[24] PA Guide, at 73.

[25] Public Assistance Applicant Handbook, FEMA P-323 (March 2010), at 32–34 [hereinafter PA Applicant Handbook].

[26] Id. at 53–56; PA Guide, at 103–09, 137.

[27] Id. at 73.

[28] Examples of the job titles provided include: “CIVIL ENGR 2,” “KEYBOARD SPEC 1,” “CLERK 1,” etc.

[29] The additional documentation submitted on second appeal consisted of the STICC’s Incident Command Procedures for the following positions: Information Officer, Finance and Administration Section Chief, and Liaison Officer.

[30] See FEMA Second Appeal Analysis, Chambers County, FEMA-1791-DR-TX (May 25, 2017), at 8 (finding that the Applicant’s support documentation contained omissions, inconsistencies, and patterns of deviation that have not been explained to justify eligibility).

[31] Project Worksheet 2594, New York State Department of Transportation, Version 0 (Oct. 29, 2012).

[32] PA Applicant Handbook, at 32–34; PA Guide, at 103–09.