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Appeal Timeliness

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

DisasterFEMA-1603
ApplicantLSU Health Care Services Division Medical Center of Louisiana at New Orleans
Appeal TypeSecond
PA ID# 025-70275-00
PW ID#RPA
Date Signed2017-10-23T00:00:00

Conclusion:  The LSU Health Care Services Division Medical Center of Louisiana at New Orleans’ (Applicant) second appeal was untimely.  The Arbitration Agreement in United States Civilian Board of Contract Appeals case CBCA 2874-FEMA contains language that specifically bars any appeals related to Charity Hospital.

Summary Paragraph

 Hurricanes Katrina and Rita struck the Gulf Coast in August and September 2005, severely damaging Charity Hospital (Hospital) in New Orleans, Louisiana.  Afterwards, the state vacated and closed the Hospital.  FEMA prepared Project Worksheet (PW) 2175 to document the costs of permanent repairs to the Hospital.  The Grantee disagreed, believing the Hospital needed replacement instead of repair.  Arbitration occurred before the United States Civilian Board of Contract Appeals (CBCA) in cases CBCA 1741-FEMA and CBCA 2874-FEMA.  The dispute was resolved with an Arbitration Agreement (Agreement), signed by the State of Louisiana, Facility Planning and Control, the Governor’s Office of Homeland Security and Emergency Preparedness, and FEMA in January and February of 2013.  Per the Agreement, FEMA obligated $61,286,054.62 for the replacement of fixed equipment items damaged by the disasters and located in the Hospital.  In September 2013, the Applicant submitted a PW request for $232,000.00 to remove a multi-place hyperbaric chamber (HB chamber) from the Hospital and relocate it.  In May 2014, the Applicant requested an amendment to their earlier PW request to include $17,731,136.00 for the construction of an entirely new facility to house the HB chamber.  In a letter dated October 31, 2014, FEMA denied the Applicant’s request concluding the Applicant lacked the legal responsibility for the items of work requested.  FEMA also determined that funding the request was a prohibited duplication of benefits as the Applicant already received assistance under the terms of the arbitration decision in case CBCA FEMA-1741.  The Applicant appealed, and conceded that it did not own and was not legally responsible for the HB chamber prior to or during Hurricane Katrina.  However, the Applicant disputed FEMA’s determination that funding the PW request would result in a duplication of benefits.  The Applicant also asserted that the arbitration decision in CBCA FEMA-1741 did not contemplate the HB chamber and that FEMA had the discretion to fund the PW request.  FEMA sent a Final Request for Information (Final RFI) giving the Applicant a final opportunity to submit additional information in support of its appeal.  The Applicant did not respond.  On September 8, 2015, the FEMA Region VI Regional Administrator (RA) denied the appeal finding the Applicant was not legally responsible for the work.  The RA also determined FEMA’s prior subaward to replace the Hospital and its fixed equipment precluded any additional assistance, and that the CBCA FEMA-1741 arbitration decision and CBCA FEMA-2874 Agreement preempted any further claims for assistance.  The RA’s decision informed the Applicant of the timeframe to submit a second appeal.  The Grantee transmitted the decision to the Applicant in a letter dated September 15, 2015.  In a December 14, 2016 letter, the Applicant provided supplemental information related to its appeal.  FEMA responded, declining consideration of the Applicant’s supplemental information since FEMA already rendered an appeal decision and closed the Administrative Record.  FEMA reminded the Applicant of the second appeal submission requirements as listed in the first appeal decision.  By letter dated May 10, 2017, the Applicant sent FEMA information, “in support of a second appeal.”  The Applicant’s letter contained the same attachments and made the same arguments as its December 14, 2016 letter.  The Applicant’s letter also urges FEMA to re-open the Administrative Record and consider the information provided.  

Authorities and Second Appeals

  • Stafford Act § 423(a).
  • American Recovery and Reinvestment Act of 2009, § 601.
  • 44 C.F.R. §§ 206.206(a), 206.206(c)(1), 206.209(k)(3).
  • Chevra Hatzalah, FEMA-4085-DR-NY, at 4.
  • Broward Cty Sch. Bd., FEMA-1609-DR-FL, at 3.

Headnotes

  • Pursuant to Stafford Act § 423(a) and 44 C.F.R. § 206.206(c)(1), appeals must be filed within 60 days after receipt of a notice of the action that is being appealed
    • FEMA issued a first appeal decision on September 8, 2015.  The Grantee transmitted it to the Applicant in a letter dated September 15, 2015.  The Applicant filed its second appeal on May 10, 2017, making the second appeal untimely. 
  • Per 44 C.F.R. § 206.209(k)(3), a decision of the majority of the arbitration panel shall constitute a final decision, binding on all the parties.  Final decisions are not subject to further administrative review.

FEMA and the Applicant entered into an Arbitration Agreement, which was approved by the CBCA.  The Agreement preempts any other claims related to Charity Hospital, including that raised in this appeal.

Appeal Letter


James Waskom
Director
Governor’s Office of Homeland Security and Emergency Preparedness
7667 Independence Boulevard
Baton Rouge, Louisiana 70806

Re:  Second Appeal – LSU Health Care Services Division Medical Center of Louisiana at New Orleans, PA ID 025-70275-00, FEMA-1603-DR-LA, Project Worksheet Request – Appeal Timeliness

Dear Mr. Waskom:                                                                                              

This is in response to a letter from your office dated July 7, 2017, which transmitted the referenced second appeal on behalf of LSU Health Care Services Division Medical Center of Louisiana at New Orleans (Applicant).  The Applicant is appealing the U.S. Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of a Project Worksheet request for $17,731,136.00 to construct a new facility to house a multi-place hyperbaric chamber to be relocated from Charity Hospital.

As explained in the enclosed analysis, I have determined that, pursuant to 44 C.F.R. § 206.206(c), the Applicant’s appeal is untimely.  Furthermore, as previously determined by the Region VI Regional Administrator, the arbitration agreement in the United States Civilian Board of Contract Appeals case CBCA 2874-FEMA bars any appeal related to Charity Hospital.  Accordingly, I am denying the appeal. 

Please inform the Applicant of my decision.  This determination is the final Agency decision on this matter pursuant to 44 C.F.R. § 206.206, Appeals.

Sincerely,

/s/

Alex Amparo
Assistant Administrator
Recovery Directorate

Enclosure

cc: George A. Robinson
     Regional Administrator
     FEMA Region VI

 

Appeal Analysis

Background

Hurricane Katrina struck the Gulf Coast in August 2005, severely damaging Charity Hospital (Hospital) in New Orleans, Louisiana.  Afterwards, the State of Louisiana vacated and closed the Hospital.  FEMA prepared Project Worksheet (PW) 2175 to document the costs of permanent repairs to the Hospital.  The Applicant disagreed, believing the Hospital needed replacement instead of repair.[1]  As a result, the Applicant filed an arbitration case before the United States Civilian Board of Contract Appeals (CBCA) in October of 2009.[2]  Arbitration occurred before the panel in case CBCA 1741-FEMA.  The CBCA ruled in favor of the Applicant and ordered FEMA to revise PW 2175 to fund the replacement of the Hospital.  A subsequent dispute arose over the definition of fixed equipment, and whether the value of said fixed equipment was included in the result of CBCA-1741.  The Applicant brought the dispute before the CBCA in case number CBCA 2874-FEMA.  This second case was resolved with an Arbitration Agreement (Agreement), signed by the State of Louisiana, Facility Planning and Control, the Governor’s Office of Homeland Security and Emergency Preparedness (Grantee), and FEMA in January and February of 2013.  The arbitration panel acknowledged the Agreement and dismissed the case with prejudice.[3]  Per the Agreement, FEMA obligated $61,286,054.62 for the replacement of fixed equipment items damaged by the disasters and located in the Hospital. 

In September 2013, the Applicant submitted a PW request for $232,000.00 to remove a multi-place hyperbaric chamber (HB chamber) from the Hospital and relocate it.  In May 2014, the Applicant requested an amendment to their earlier PW to include $17,731,136.00 for the construction of a new facility to house the HB chamber.  In a letter dated October 31, 2014, FEMA denied the Applicant’s request, concluding the Applicant lacked legal responsibility for the items of work requested.  FEMA also determined that funding the request would result in a prohibited duplication of benefits, as the Applicant already received assistance under the terms of the arbitration decision in case CBCA FEMA-1741.  The Grantee transmitted FEMA’s decision to the Applicant in a letter dated December 4, 2014.     

First Appeal

In a letter dated February 2, 2015, the Applicant appealed FEMA’s denial of the PW request.  The Applicant conceded that it did not own and was not legally responsible for the HB chamber prior to or during Hurricane Katrina.  However, the Applicant disputed FEMA’s determination that funding the PW request would result in a duplication of benefits.  The Applicant also asserted that the arbitration decision in CBCA FEMA-1741 did not contemplate the HB chamber and that FEMA had the discretion to fund the PW request.

FEMA issued a Final Request for Information (Final RFI) seeking additional information from the Applicant to support its appeal.  The Final RFI stated that, upon issuance of the first appeal decision, the Administrative Record would close and that FEMA would not consider any additional documentation if the Applicant elected to file a second appeal.[4]  The Applicant did not respond. 

On September 8, 2015, the FEMA Region VI Regional Administrator (RA) denied the appeal finding the Applicant was not legally responsible for the work.  The RA also determined FEMA’s prior subaward to replace the Hospital, which had housed the HB chamber, as well as its fixed equipment precluded any additional assistance, and that the terms of the CBCA FEMA-1741 arbitration decision and the Agreement resolving CBCA FEMA-2874 preempted any further claims for assistance.  The RA’s decision informed the Applicant of the format, content, and timeframe requirements to submit a second appeal.  The Grantee transmitted the decision to the Applicant in a letter dated September 15, 2015.

Applicant’s Supplement to First Appeal

In a December 14, 2016 letter, the Applicant, via the Grantee, provided supplemental information related to its first appeal.  The Applicant again conceded that it was not the owner of the HB chamber, but alternatively argued that it was legally responsible for providing the facilities, equipment, and support services necessary to perform hyperbaric services.  The Applicant also asserted the CBCA decision did not address funding for the relocation and installation of the HB chamber.  The RA responded, declining consideration of the Applicant’s supplemental information since it already rendered an appeal decision and closed the Administrative Record.[5]  The RA reminded the Applicant of the second appeal submission requirements stated in its September 8, 2015 decision.[6]  The Grantee transmitted FEMA’s response to the Applicant in a letter dated March 10, 2017.

Second Appeal

By letter dated May 10, 2017, the Applicant submits through the Grantee, supplemental information in support of a second appeal.  The Applicant’s letter contains the same attachments and makes the same arguments stated in its December 14, 2016 letter with the additional request that FEMA re-open the Administrative Record to consider the information provided.

Discussion

Timeliness

The Robert T. Stafford Disaster Relief and Emergency Assistance 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.”[7]  Further implementing Stafford Act § 423, Title 44 of the Code of Federal Regulations (44 C.F.R.) § 206.206(c)(l) requires applicants to file an appeal within 60 days after receiving notice of the action that is being appealed.[8]  Neither the Stafford Act nor 44 C.F.R. authorize FEMA to grant time extensions for filing appeals.[9]  Once the time period for filing an appeal has passed, the Applicant’s appeal rights lapse and FEMA’s decision becomes the final agency action.[10]

FEMA rendered its first appeal decision on September 8, 2015.  The Grantee transmitted the appeal decision to the Applicant in a letter dated September 15, 2015.  The Applicant now attempts a second appeal by letter dated May 10, 2017, almost two years after FEMA’s first appeal decision.  Consequently, the Applicant’s appeal rights lapsed and FEMA’s first appeal decision became the Agency’s final administrative action.[11]  Nevertheless, even if timeliness were not an issue, this appeal still procedurally fails.

Finality of Arbitration Decision and Agreement

FEMA regulations governing the process for arbitration panels established by the American Recovery and Reinvestment Act of 2009 states that a decision of the panel is final and binding on all the parties.[12]  The Applicant brought its claim regarding the replacement of Charity Hospital before the arbitration panel in October 2009 and the CBCA ruled in its favor.[13]  The Applicant’s subsequent claim regarding fixed medical equipment in CBCA FEMA-2874 was mutually resolved and memorialized in the Agreement signed by FEMA, the Grantee, and the Applicant.  By signing the Agreement, all parties agreed that it reflects the:

…full and final resolution and satisfaction of any and all claims, disputes, demands, rights, and causes of action of whatsoever kind and nature, including any appeals against FEMA based on, arising from, and by rights, and by reason of any and all known and unknown claims for funding, foreseen and unforeseen, that the Applicant now has or hereafter may acquire against FEMA or its agents, servants, and employees that result or arise from the matters alleged in CBCA-2874-FEMA.[14]

Furthermore, each party to the Agreement, “forever waive[d] any and all rights to bring any actions, claims, demands, and causes of action of whatsoever kind and nature against each other . . . .”[15]  The CBCA acknowledged the Agreement and dismissed the case with prejudice.[16]  The Applicant argues that the CBCA decision did not address funding for the relocation and installation of the HB chamber.  However, the language of the Agreement, which the Grantee assented to, clearly indicates a singular, global resolution of any and all issues related to the hospital, whether foreseen or not.  As a result, this appeal is substantively without merit.

Conclusion

The Applicant’s second appeal is untimely.  Timeliness aside, the Arbitration Agreement was the complete resolution of any and all claims regarding Charity Hospital.  As such, the appeal is denied.

 


[1] The arbitration and Public Assistance (PA) appeals related to Charity Hospital involved multiple entities.  Charity Hospital is owned by the Board of Supervisors of Louisiana State University (LSU) Agricultural and Mechanical College.  However, under an order of the Governor of Louisiana dated January 19, 2006, the State of Louisiana, Facility Planning and Control (FP&C), was the applicant for Public Assistance grants on behalf of the Board of Supervisors of LSU.  The LSU Health Care Services Division (LSU HCSD) Medical Center of Louisiana at New Orleans was the applicant for various Hospital contents, including medical supplies and movable (i.e. “non-fixed”) equipment.  LSU HCSD was the nominal applicant for the first PA appeal.  LSU Health Sciences Center New Orleans (LSU HSCNO) is the applicant for this PA appeal.  It is unclear whether LSU HCSD and LSU HSCNO are separate entities, whether LSU HCSD has changed its name, or if LSU HSCNO is a successor in interest to LSU HCSD.  Regardless, LSU HCSD, FP&C and LSU HSCNO are all subordinate to the State of Louisiana, which was a signatory to the Arbitration Agreement, thus binding the various “applicants” to its terms. 

[2] Through the American Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5, § 601 (2009), Congress created an arbitration panel under FEMA’s Public Assistance program to expedite the recovery of the Gulf Coast region from Hurricanes Katrina and Rita.

[3] State of Louisiana, Facility Planning and Control, CBCA 2874-FEMA, 2 (Mar. 14, 2013) (U.S. Civilian Bd. Of Contract Appeals).

[4] Letter from Dir., Recovery Div., FEMA Region VI to Dir., Governor’s Office of Homeland Sec. and Emergency Preparedness, at 1 (Jun. 23, 2015).

[5] Letter from Reg’l Adm’r, FEMA, Region VI to Dir., Governor’s Office of Homeland Sec. and Emergency Preparedness, and Deputy Chief Exec. Officer, LSU HCSD, at 1 (Feb. 28, 2017).

[6] Id.

[7] The Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988, Pub. L. No. 93-288 § 423, 42 U.S.C. § 5189a (2005).

[8] Title 44 Code of Federal Regulations (44 C.F.R.) § 206.206(c)(l) (2004).

[9] FEMA Second Appeal Analysis, Chevra Hatzalah, FEMA-4085-DR-NY, at 4 (Mar. 15, 2017); FEMA Second Appeal Analysis, Broward Cty. Sch. Bd., FEMA-1609-DR-FL, at 3 (Aug. 22, 2016).

[10] See Broward Cty. Sch. Bd. of Fla., FEMA-1609-DR-FL, at 3 (stating “[a]fter the 60-day period ends, an applicant’s right to appeal is exhausted, the opportunity to seek remedy through the administrative PA appeals process lapses, and the Agency’s action becomes final.”).

[11] See FEMA Second Appeal Analysis, City of Boynton Beach, FEMA-1545-DR-FL, at 2 (Aug. 31, 2105) (denying the applicant’s second appeal which was filed two and a half years after FEMA’s first appeal decision).

[12] 44 C.F.R. § 206.209(k)(3) (2009).

[13] State of Louisiana, Facility Planning and Control, CBCA 1741-FEMA, 6 (Jan. 27, 2010) (U.S. Civilian Bd. Of Contract Appeals).

[14] Arbitration Agreement, Facility, Planning and Control v. Federal Emergency Management Agency, CBCA 2874-FEMA, at 4 (Feb. 7, 2013) (emphasis added).

[15] Id. at 4-5.

[16] State of Louisiana, Facility Planning and Control, CBCA 2874-FEMA, 2 (Mar. 14, 2013) (U.S. Civilian Bd. Of Contract Appeals).

Last updated May 28, 2020