Appeals, Immediate Threat

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4487
Applicant	Brunswick County
Appeal Type	Second
PA ID#	019-99019-00
PW ID#	PW 490, GMP 184371
Date Signed	2022-11-23T17:00:00

Summary Paragraph

The coronavirus (COVID-19) pandemic resulted in a major disaster declaration for the State of North Carolina.  The Applicant requested $6,692.33 in PA funding for the purchase of personal protective equipment, meals for staff, and conference call services.  On January 7, 2022, the Applicant received FEMA’s Determination Memorandum (DM) denying $2,717.70 for the purchase of meals and conference call services.  FEMA found that the Applicant did not demonstrate that the purchase of meals was eligible under FEMA’s policy.  FEMA also found that the fees for the conference call services represented an ineligible increased operating cost.  On March 2, 2022, the Applicant appealed, stating that the denied items of work were for staff on its emergency operation center (EOC) in response to COVID-19.  The FEMA Region IV Regional Administrator denied the appeal, finding that it was submitted after the 60-day timeframe required by FEMA.  FEMA stated that the Applicant received FEMA’s DM on January 7, 2022 and submitted its first appeal in a letter dated March 23, 2022, 15 days after the 60-day regulatory timeframe.  The Applicant submitted a second appeal reiterating its prior arguments pertaining to the purchase of the meals and the conference call services.  The Applicant states the first appeal was submitted on March 2, 2022, six days prior to the appeal deadline, and provides a screenshot from FEMA’s Grants Portal showing it uploaded a document on March 2, 2022.    

Authorities and Second Appeals

• Stafford Act §§ 403(a), 423(a).
• 44 C.F.R. §§ 206.206(a), 206.206(c), 206.223(a)(1), 206.225(a).
• PAPPG, at 19, 21, 23, 58, 62-63, 146.
• Fact Sheet, Eligible Emergency Protective Measures, at 1; FP 104-22-0001, FEMA Policy: Public Assistance Appeals and Arbitration,  at 2; FP 104-009-19, Coronavirus (COVID-19) Pandemic: Work Eligible for Public Assistance (Interim).

Headnotes

• The Stafford Act and 44 C.F.R. §§ 206.206(a) and (c)(1) require 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.  For disasters predating January 1, 2022, Applicants and Recipients are encouraged to use the Grants Portal system to submit appeals. 
  • The Applicant has provided documentation that demonstrates its first appeal was timely submitted.
• To be eligible for reimbursement, costs must be directly tied to the performance of eligible work and be adequately documented. 
  • The Applicant did not demonstrate its claimed costs were directly tied to the performance ofemergency work in response to COVID-19.  Therefore, the cost related to the conference call service is ineligible for PA.  
• Under limited circumstances, the provision of food may be an eligible emergency protective measure. 
  • The documentation does not establish eligibility for meals under FEMA policy.

Conclusion

The Applicant has demonstrated its first appeal was timely submitted.  However, the Applicant did not demonstrate the requested costs are associated with eligible emergency protective measures.  Therefore, this appeal is denied.

Appeal Letter

Appeal Analysis

Background

The coronavirus (COVID-19) pandemic resulted in a major disaster declaration for the State of North Carolina, during the incident period of January 20, 2020 and continuing.  Due to the pandemic, Brunswick County (Applicant) requested $6,692.33 from the Federal Emergency Management Agency (FEMA)’s Public Assistance (PA) program for the purchase of personal protective equipment (PPE), meals for its Emergency Operation Centers (EOC) staff, and cost for an internet-based telephone service used at its EOC.  The work was completed from September 1, 2020 through November 30, 2020.

FEMA transmitted a Determination Memorandum (DM) on January 7, 2022.  FEMA denied $2,717.70 for the purchase of the meals and the cost for the conference call services.  FEMA found that the Applicant did not demonstrate that the purchase of meals for staff adhered to the eligibility requirements of this cost under the FEMA’s Public Assistance Program and Policy Guide (PAPPG).[1]  Also, FEMA stated that the conference call service was not a routine/normal phone service, and the Applicant did not demonstrate that a regular communications system was not available or was insufficient to sustain the response activities conducted at its EOC.  As a result, FEMA concluded that the meals and the telephone service were not associated with eligible emergency protective measures.

First Appeal

In a letter dated March 23, 2022, the Applicant stated that the denied items were for operating its EOC in response to COVID-19.  The Applicant stated that its staff and volunteers worked with the local health department, hospitals, nursing homes, business, and citizens to respond to the COVID-19 pandemic, providing measures such as disseminating information and distribution of PPE.  The Applicant claimed that the meals were purchased and delivered to the staff working in the EOC, who worked extended hours with limited access to food because of the location of the EOC and the stay-at-home orders.  Regarding the conference call service, the Applicant stated that the conference calls were conducted with government, medical, and private partners to share information about the COVID-19 pandemic and jointly reach decisions regarding COVID-19 coordination efforts.  The Applicant asserted that the utility costs and meals for employees at the EOC were specifically eligible under FEMA’s Policy Coronavirus (COVID-19) Pandemic: Work Eligible for Public Assistance (Interim),[2] and the PAPPG.  On March 25, 2022, the North Carolina Emergency Management (Recipient) transmitted the Applicant’s first appeal to FEMA, with its support.   

The FEMA Region IV Regional Administrator (RA) denied the appeal, finding that it was submitted after the 60-day timeframe required by FEMA’s regulations, and was therefore untimely.  FEMA stated that the Applicant received FEMA’s DM on January 7, 2022 and submitted its first appeal to the Recipient in a letter dated March 23, 2022, after the 60-day regulatory timeframe.

Second Appeal

The Applicant submitted a second appeal dated August 22, 2022, which reiterates its prior arguments pertaining to the purchase of meals and cost for the conference call services.  The Applicant clarifies the timeline of its first appeal submission, stating that it received the DM on January 7, 2022, and submitted the appeal for this project on March 2, 2022, six days prior to the appeal deadline.  The Applicant explains that a revised first appeal dated March 23, 2022, was submitted in Grants Portal on March 25, 2022.  The Applicant provides supporting documentation including a screenshot from FEMA’s Grants Portal showing an original submission on March 2, 2022 and two later submissions on March 25, 2022.  On August 25, 2022, the Recipient transmitted the second appeal with its support.

 

Discussion

Appeals

The Robert T. Stafford Disaster Relief and Emergency Assistance Act provides that any decision regarding eligibility may be appealed within 60 days after the date on which the applicant is notified of the denial of assistance.[3]  Implementing regulations require that applicants file an appeal with the recipient within 60 days after receipt of a notice of the action that is being appealed .[4]  For disasters predating January 1, 2022, applicants and recipients are encouraged to use the FEMA Grants Portal system to submit appeals when available for that disaster.[5]

According to the administrative record, the Applicant received notice of FEMA’s DM denial on January 7, 2022.  On second appeal, the Applicant provided supporting documentation showing that the first appeal was submitted on March 2, 2022 to FEMA’s Grants Portal.  This was within the 60-day timeframe required by FEMA’s regulations, making the Applicant’s first appeal timely. 

Immediate Threat

FEMA may provide assistance to eligible PA applicants for emergency protectives measures implemented to save lives and reduce immediate threats to public health and safety, such as EOC-related costs.[6]  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.[7]  To be eligible for PA, costs must be directly tied to the performance of eligible work and be adequately documented.[8]  Increased utility costs and meal costs associated with operating an EOC may be eligible for PA.[9]  In order to be eligible, however, EOC-meal costs must meet the requirements set forth in FEMA policy.[10]  Provision of meals, including beverages and meal supplies, for employees and volunteers engaged in eligible emergency work, including those at EOCs, is eligible provided the individuals are not receiving per diem, and one of the following circumstances applies: (1) meals are required based on a labor policy or written agreement that meets certain requirements; (2) conditions constitute a level of severity that requires employees to work abnormal, extended work hours without a reasonable amount of time to provide for their own meals; or (3) food or water is not reasonably available for employees to purchase.[11]  FEMA only reimburses the cost of meals that are brought to the work location and purchased in a cost effective and reasonable manner, such as bulk meals.[12] 

Here, the Applicant notes that conference call services were for the operation of its EOC.  However, no detailed information or documentation was submitted concerning the work performed by its staff and volunteers in the EOC.  Consequently, the Applicant did not demonstrate that the conference call services were necessary for the performance of emergency protective work related to COVID-19.  

Likewise, the Applicant claims the meals were purchased and delivered to the staff working at the EOC, who had limited access to food due to government restrictions.  The Applicant submitted invoices of the meals provided.  However, the Applicant did not provide: (1) any written agreement for the provision of meals; (2) documentation demonstrating that its employees did not have time to provide its own meals; or, (3) that during the time period of the purchases, food was not reasonably available.  FEMA is unable to determine that the meal purchases comply with FEMA policy, therefore the Applicant’s meal purchases are ineligible for PA funding. 

 

Conclusion

The Applicant has demonstrated its first appeal was timely submitted.  However, the Applicant did not demonstrate the requested costs are associated with eligible emergency protective measures.  Therefore, this appeal is denied.

 

[1] FEMA stated that the Applicant did not establish that these meals were required based on a labor policy or written agreement, or that severe conditions required employees to work abnormal, extended work hours without a reasonable amount of time to provide for their own meals; or that food or water was not reasonably available for employees to purchase.  See generally, Public Assistance Program and Policy Guide, FP 104-009-2, at 63 (Apr. 1, 2018) [hereinafter PAPPG].

[2] FEMA Policy 104-009-19, Coronavirus (COVID-19) Pandemic: Work Eligible for Public Assistance (Interim) (Sept. 1, 2020) [hereinafter Work Eligible for Public Assistance Policy].

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

[4] Title 44, Code of Federal Regulations (44 C.F.R) §§ 206.206(a); 206.206(c) (2019); PAPPG at 146.

[5] FEMA Policy 104-22-0001, FEMA Policy: Public Assistance Appeals and Arbitration, at 2, n.5 (Feb. 24, 2022).  Grants Portal automatically routes Applicant and Recipient appeals documents appropriately.  Id. at 2, n.7.

[6] Stafford Act § 403(a), 42 U.S.C § 5170b(a); 44 C.F.R. § 206.225(a); PAPPG, at 58, 62; Work Eligible for Public Assistance Policy, at 3; FEMA Fact Sheet, Coronavirus (COVID-19) Pandemic: Eligible Emergency Protective Measures, at 1 (Mar. 19, 2020).          

[7] 44 C.F.R. §§ 206.223(a)(1), 206.225(a)(3); PAPPG, at 19.

[8] PAPPG, at 21.

[9] Id. at 62.

[10] Id. at 62-63.

[11] Id. at 63; see generally, PAPPG, at 23 (outlining the pay policy requirements).

[12] PAPPG, at 63.