Appeals - Immediate Threat

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4506
Applicant	Butler Area School District (Butler County)
Appeal Type	Second
PA ID#	019-UTN17-00
PW ID#	GMP 186554
Date Signed	2022-09-08T16:00:00

Summary Paragraph

The coronavirus (COVID-19) pandemic resulted in a major disaster declaration for the Commonwealth of Pennsylvania on March 30, 2020.  On August 31, 2021, the Applicant requested Public Assistance for force account overtime labor utilized to package and distribute meals to school-age children.  FEMA issued a Determination Memorandum (DM) and concluded that the costs incurred by the Applicant did not meet the eligibility criteria outlined in the applicable policies for purchase and distribution.  The DM was transmitted and viewed by the Applicant via Grants Manager on December 13, 2021.  The Applicant transmitted its first appeal dated January 26, 2022, directly to the Region III Regional Administrator (RA).  The Pennsylvania Emergency Management Agency (Recipient) transmitted the Applicant’s first appeal to the RA on April 21, 2022.  The RA denied the appeal, determining that the Applicant failed to follow the proper statutory and regulatory appeal requirements.  The Applicant filed a second appeal reiterating the previously raised arguments and maintains that its first appeal was sent directly to the RA and not to the Recipient; nevertheless, this should not prevent it from filing an appeal on the merits.  The Recipient concurred.

Authorities and Second Appeals

• Stafford Act § 403(a)(3).
• 44 C.F.R. §§ 206.223(a)(1), 206.225(a)(3), 206.206(a), (c)(1) and (2).
• PAPPG, at 19, 57, 63.
• FP 104-010-03, at 3 (Food Policy).
• Freehold Borough Board of Edu., FEMA-4488-DR-NJ, at 2; Union Spring Central School Dist., FEMA-4483-DR-NY, at 3; Fla. Dept. of Transp., FEMA-4068-DR-FL.

Headnotes

• The Stafford Act and 44 C.F.R. §§ 206.206(a) and (c)(1) requires that applicants file an appeal in writing through the recipient within 60 days after receipt of notice of the action that is to be appealed, at which point the recipient must forward the appeal, along with a written recommendation, to the RA within 60 days.  Failure to comply with these requirements by either the applicant or the recipient renders the appeal untimely and the applicant’s appeal rights lapse.

• The Applicant sent the appeal directly to FEMA’s Regional Administrator bypassing the Recipient and the regulatory appeals procedures.

• For the distribution of food to be considered an eligible emergency protective measure under the COVID-19 emergency, the applicant is responsible for demonstrating that the work and costs were incurred to respond to an immediate threat as a result of the COVID-19 emergency.
  • The Applicant’s circumstances do not meet the indicators for providing meals as an emergency protective measure under the FEMA Food Policy.  

Conclusion

FEMA finds the Applicant did not comply with appeal filing procedures required by FEMA regulations.  Furthermore, the Applicant did not demonstrate that the cost of school-age children’s meals was an eligible emergency protective measure in response to the COVID-19 emergency.  Therefore, this appeal is denied. 

Appeal Letter

Appeal Analysis

Background

The coronavirus (COVID-19) pandemic resulted in a major disaster declaration for the Commonwealth of Pennsylvania on March 30, 2020, and ongoing.  The Butler Area School District (Applicant) requested reimbursement under the Federal Emergency Management Agency’s (FEMA) Public Assistance (PA) Program for force account overtime labor used to package and distribute meals to school-age children residing in its district.  The Applicant stated that at the direction of Butler County (County), it began serving two meals each day to students throughout the State-mandate public-school closures.  Families enrolled in the Applicant’s COVID-19 food service program had the option of having their meals delivered or to pick them up.  In support of its reimbursement request, the Applicant provided FEMA with a copy of a fully executed Memorandum of Understanding (MOU) dated August 2021, between the Applicant and the County.[1]   

On December 13, 2021, FEMA issued a Determination Memorandum (DM), denying $331,266.84 in funding.  FEMA transmitted the DM via Grants Manager on December 13, 2021, and the Applicant viewed it the same day.  FEMA concluded that the Applicant had not satisfied the criteria for reimbursement outlined in FEMA policy, Coronavirus (COVID-19) Pandemic: Purchase and Distribution of Food Eligible for Public Assistance (Food Policy).[2]

First Appeal

The Applicant transmitted its first appeal dated January 26, 2022, directly to the Region III Regional Administrator (RA) claiming that the costs for packaging and distributing meals to school-age children complied with the MOU executed between the County and the Applicant.  Furthermore, the Applicant stated that it undertook emergency work to preserve the health and safety of its students by continuing to provide student meals.  The Applicant stated that the expenses were eligible because they met the requirements within applicable FEMA policy.[3]  On April 21, 2022,[4] the Pennsylvania Emergency Management Agency (Recipient) transmitted the first appeal to FEMA along with a letter supporting the Applicant appeal.  On May 23, 2022, the FEMA Region III Regional Administrator denied the appeal, determining that the Applicant failed to follow the proper statutory and regulatory appeal requirements.

Second Appeal

On June 7, 2022, the Applicant filed a second appeal reiterating the previously raised arguments on first appeal.  Furthermore, the Applicant maintains that while its first appeal was sent directly to the RA and not to the Recipient, this should not prevent it from requesting an appeal on the merits.  The Recipient transmitted the Applicant’s second appeal to FEMA with its support on June 9, 2022.

 

Discussion

Appeals

The Robert T. Stafford Disaster Relief and Emergency Assistance Act 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.”[5]  FEMA’s implementing regulations require that applicants file an appeal through the recipient to the RA within 60 days after receipt of notice of the action that is to be appealed.[6]  The recipient must review and evaluate all applicant appeals before submission to the RA and must forward the appeal, along with a written recommendation, to the RA within 60 days.[7]  Failure to comply with these requirements renders the appeal untimely and the applicant’s appeal rights lapse.[8] 

The Applicant viewed FEMA’s DM denial notification on December 13, 2021.  In the DM cover letter, FEMA outlined the Applicant’s right to appeal the determination to the FEMA Region III RA and instructed the Applicant to submit its appeal to the Recipient within 60 days of receipt.  In its second appeal the Applicant argues that its appeal was submitted in accordance with the DM language.  However, the DM language provides the regulatory requirement, “the Applicant must submit the appeal to the Pennsylvania Emergency Management Agency (Recipient) within 60 days of the Applicant’s receipt of this determination.”[9]  Using December 13, 2021, as the date of receipt, the Applicant had until February 11, 2022, to file its first appeal through the Recipient.  But, on January 26, 2022, the Applicant sent the appeal directly to FEMA’s Region III RA, bypassing the Recipient and failed to comply with the regulatory appeals’ procedures.[10]  As a result, the Applicant did not submit its appeal to the Recipient within the 60-calendar day timeframe required by FEMA’s regulations.[11]  Therefore, the first appeal is untimely.  

 

Immediate Threat

FEMA is authorized to provide emergency protective measures to save lives and protect public health and safety.[12]  For emergency protective measures to be eligible, the Applicant is responsible for showing the work is required due to an immediate threat resulting from the declared incident.[13]  Under the COVID-19 declarations, FEMA may provide assistance for the purchase and distribution of food under limited circumstances to meet the immediate needs of those who do not have access to food as a result of COVID-19, and to protect the public from the spread of the virus.[14]  In the COVID-19 Food Policy, FEMA established indicators that demonstrate the need for food distribution as an emergency protective measure.[15] 

The Applicant’s supporting material indicates that it delivered meals to all school-aged children in its district.  The circumstances provided by the Applicant (complying with the MOU), however, do not meet the established COVID-19 Food Policy indicators for the provision of food as an emergency protective measure.[16]  As such, the Applicant’s circumstances do not meet the indicators for providing meals to students during mandatory COVID-19 school closures as an emergency protective measure. 

 

Conclusion

FEMA finds the Applicant did not comply with appeal filing procedures required by FEMA regulations.  Furthermore, the Applicant did not demonstrate that the cost of school-age children’s meals was an eligible emergency protective measure in response to the COVID-19 emergency.  Therefore, this appeal is denied.

 

[1] According to the Memorandum of Understanding (MOU) between Butler Area School District (Applicant) and The County of Butler, Pennsylvania (Butler County), Butler County asked the Applicant “to ensure that students of Butler Area School District were provided meals during the COVID-19 Pandemic, and to provide those meals through methods that would maintain social distancing and congregant restrictions…”  MOU, between Butler Area School District (Applicant) and The County of Butler, Pennsylvania (Butler County) at 1 (Aug. 2021) [hereinafter Memorandum].  Both parties agreed that the Applicant shall seek reimbursement for the expenses incurred in the performance of the abovementioned feeding services through FEMA’s Emergency Food and Shelter Grant Program and the Emergency Management Performance Grant Program. Memorandum, at 3.

[2] FEMA Policy FP-104-010-03, Coronavirus (COVID-19) Pandemic: Purchase and Distribution of Food Eligible for Public Assistance, (Apr. 11, 2020) [hereinafter Food Policy].

[3] Letter from Attorney at Law, Dillon McCandless King Coulter & Graham L.L.P, to Reg’l Adm’r Region III, FEMA at 2 (Jan. 26, 2022).

[4] Letter from the Penn. Emergency Mgmt. Agency (Recipient) to FEMA Region III Reg’l Adm’r (Mar. 31, 2022).  The letter from the Recipient is dated March 31, 2022, however, it was digitally signed on April 21, 2022.

[5] Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act) § 423(a), United States Code (42 U.S.C) 5189a (2018).

[6] Title 44, Code of Federal Regulations (C.F.R) §§ 206.206(a), (c)(1) and (2) (2019).

[7] Id.

[8] FEMA Second Appeal Analysis, Fla. Dep’t of Transp., FEMA-4068-DR-FL, at 3, 5 (Aug. 5, 2016).

[9] Determination Memorandum, Butler Area School District (Butler County), FEMA-4506-DR-PA, at 1, 9 (Dec. 13, 2021).

[10] 44 C.F.R. § 206.206(a).

[11] Id. § 206.206(c)(1).

[12] Stafford Act §§ 403, 502, Title 42, 42 U.S.C. §§ 5170b, 5192 (2018); Title 44, Code of Federal Regulations (44 C.F.R.) § 206.225(a) (2019).

[13] 44 C.F.R. §§ 206.223(a)(1), 206.225(a)(3); Public Assistance Program and Policy Guide, FP 104-009-2, at 19, 57 (Apr. 1, 2018) [hereinafter PAPPG].

[14] Food Policy, at 1; PAPPG, at 63.

[15] Food Policy, at 3.  The indicators that demonstrate the need for food distribution are: (1) reduced mobility of people in need due to government-imposed restrictions, including “stay-at-home” orders which prevent certain populations from accessing food; (2) marked increase or atypical demand for feeding resources; and (3) disruptions to the typical food supply chain within a given jurisdiction.  Id.

[16] Food Policy, at 3.  See FEMA Second Appeal Analysis, Freehold Borough Board of Education, FEMA-4488-DR-NJ, at 2 (July 14, 2022); FEMA Second Appeal Analysis, Union Springs Central School District, FEMA-4480-DR-NY, at 2 (Jan. 24, 2022).