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Emergency Public Transportation – Increased Operating Expenses

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

DisasterFEMA-4020
ApplicantMiddleburgh Central School District
Appeal TypeSecond
PA ID#095-03061-00
PW ID#9264
Date Signed2017-08-07T00:00:00

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.       

Summary

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).

Headnotes

  • 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.

 

Appeal Letter

Barbara lee Steigerwal
Alternate Governor’s Authorized Representative
New York State Office of Emergency Management
1220 Washington Avenue, Building 7A, Suite 710
Albany, New York 12242

Re:  Second Appeal – Middleburgh Central School District, PA ID 095-03061-00, FEMA-4020-DR-NY, Project Worksheet (PW) 9264 – Emergency Public Transportation – Increased Operating Expenses

Dear Ms. Steigerwald:

This is in response to a letter from your office dated March 20, 2017, which transmitted the referenced second appeal on behalf of Middleburgh Central School District (Applicant).  The Applicant is appealing the U.S. Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of $24,933.80 in reimbursement costs for the transportation of three displaced students.

As explained in the enclosed analysis, I have determined the work was not emergency public transportation, and therefore does not implicate Section 419 of the Stafford Act.  The costs associated with the work represent increased operating expenses that are not eligible for Public Assistance.  Accordingly, I am denying the appeal. 

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

Sincerely,

/s/


Christopher Logan
Director
Public Assistance Division

Enclosure

cc: John Rabin
     Acting Regional Administrator
     FEMA Region II

 

Appeal Analysis

Background

From August 26 through September 5, 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 Middleburgh Central School District (Applicant).  On August 31, 2011, the President declared a major disaster for Hurricane Irene.  The Applicant submitted a request dated December 30, 2013 through the New York State Office of Emergency Management (Grantee) for a project worksheet (PW) to be written to reimburse costs it incurred for a driver to transport three displaced students following the disaster.  The Applicant asserted it requested these costs during initial meetings between the parties, but FEMA personnel informed it that they were not eligible for reimbursement.  Regardless, the Applicant re-submitted its request asserting that FEMA reimbursed similar costs to other schools in the New York region following Hurricane Sandy.  

On March 10, 2014, the Grantee forwarded the Applicant’s request for $24,933.80 for the costs to transport the students from early November 2011 through the end of June 2012.  On April 28, 2015, FEMA denied the request, determining it could not provide grant assistance for emergency temporary public transportation because it only had authority to provide Direct Federal Assistance (DFA) for the work.[1]  

First Appeal

On behalf of the Applicant, the Grantee filed an appeal of FEMA’s denial by letter dated November 17, 2015 and requested reimbursement in the amount of $24,933.80 for the cost of transporting the three displaced students living in temporary housing outside the school district.  The appeal asserted 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;[2] and (3) because FEMA reimbursed the same cost to other similarly situated schools, it should approve the Applicant’s costs based on precedent. 

With respect to the first assertion, the Grantee pointed out the McKinney-Vento Act allowed the displaced students to remain enrolled with the Applicant.  Consequently, it argued the Act required the Applicant to provide transportation to and from their temporary residences, as long as the temporary residences were less than 50 miles from the school.

Regarding the Grantee’s second argument, it asserted Section 419 pertained only to temporary public transportation (i.e. a service available to the general public along established routes at designated times).  As such, it conceded the costs at issue in this appeal did not implicate Section 419 because the transportation “was for a designated group of students between their temporary residences and the school, not for the general public along any portion of whatever route the vehicle travelled.”[3] 

For its last argument, the Grantee asserted FEMA’s prior determination, that DFA was the only available remedy for the Applicant’s transportation costs, was without merit.  It emphasized that FEMA had approved Public Assistance (PA) funding for the same costs to four other schools in New York following different disasters, and should therefore approve PA funding for the Applicant’s costs.  To support its argument, the Grantee specifically referenced: (1) PW 2375 (Tropical Storm Lee); (2) PW 370 (Hurricane Sandy); (3) PW 788 (Hurricane Sandy); and (4) PW 1790 (Hurricane Sandy).  The Grantee argued that FEMA made no attempt to explain why costs were eligible for other school districts but not to the Applicant.  As such, it contended FEMA’s denial was arbitrary, capricious, and wrong, because applicants similarly situated must be treated equally. 

On July 15, 2016, FEMA transmitted a final request for information (Final RFI) to the Grantee and Applicant, asking for any additional relevant documentation because there was insufficient documentation to support the assertion FEMA incorrectly denied the request for additional costs for the transportation of displaced students.  Neither the Applicant nor the Grantee submitted a response to the Final RFI. 

On December 22, 2016, FEMA Region II’s Regional Administrator (RA) denied the first appeal, determining FEMA only has authority to provide DFA for emergency public transportation.  The RA concluded the McKinney-Vento Act does not mandate FEMA provide funding for the displacement of students caused by a disaster.  Rather, the Applicant could have invoked the McKinney-Vento Act to obtain funding through the U.S. Department of Education.  Finally, the RA determined the transportation at issue in the appeal constituted an ineligible increased operating cost.  While the RA acknowledged FEMA mistakenly provided funding for similar projects, he stated those decisions did not affect this determination.    

Second Appeal

The Applicant appealed the RA’s determination by way of a letter dated February 2, 2017, arguing that: (1) the McKinney-Vento Act required the Applicant to transport the displaced students; and (2) denial of the requested reimbursements is not justified because FEMA reimbursed other applicants for comparable expenses in similar circumstances.

The Grantee forwarded the Applicant’s second appeal by way of a letter dated March 20, 2017, attaching a memorandum of support dated March 17, 2017.  It argues: (1) FEMA’s reliance on Section 419 of the Stafford Act is misplaced because the Section’s intent is to allow the commitment of large scale federal transportation resources where local public transportation systems are so damaged, direct assistance is necessary to restore the normal pattern of life; (2) neither the Stafford Act nor the McKinney-Vento Act expressly prohibit FEMA from reimbursing costs associated with transporting displaced students, and so FEMA should exercise its authority to reach a determination that benefits its citizens; (3) the short term work is eligible emergency work as the transportation allowed vulnerable school children to continue to attend school at a time when their mental and physical well-being was at great risk; and (4) the RA’s determination that the transportation costs are increased operating costs and therefore not eligible, is arbitrary, capricious, and in opposition to FEMA’s reimbursement of the costs under different disasters that occurred in the same region as the instant disaster. 

Discussion

Emergency Public Transportation

Section 419 of the Stafford Act specifically authorizes the President to only “provide temporary public transportation service in an area affected by a major disaster to meet emergency needs and to provide transportation to…schools…as may be necessary in order to enable the community to resume its normal pattern of life as soon as possible.”[4]  The requirement that the community need the emergency public transportation service is repeated in federal regulation.[5]  PA guidance, interpreting the Stafford Act, limits emergency public transportation to instances “when the essential portions of a community’s transportation system may be damaged by a disaster to such an extent that the vital functions of community life are disrupted.”[6]   PA policy, as well as a prior FEMA second appeal decision, make clear that FEMA only implements the authority given by Section 419 through DFA, confirming emergency public transportation is not otherwise eligible for PA funding.[7]

The Grantee first relies on the McKinney-Vento Act, pointing out it does not expressly prohibit FEMA from reimbursing costs associated with emergency public transportation.  This reliance is misplaced, however, because the McKinney-Vento Act only authorizes the Secretary of the Department of Education to provide grants to states in furtherance of allowing homeless children to attend school; it does not authorize FEMA to provide funding.[8]Next, the Grantee argues the intent of Section 419 of the Stafford Act was to allow the President to commit large scale resources where local public transportation systems were so damaged they could no longer service a significant portion of the population.  FEMA agrees with this position.  Emergency public transportation (i.e. a supplemental transportation service) is necessary when a community’s pre-disaster transportation service is damaged to such a point the vital functions of community life are disrupted.  Here, there is no documentation in the record that (1) the pre-disaster busing service was damaged, or (2) the Applicant did not continue to use the pre-disaster busing service to transport the non-displaced students to and from school after the disaster.  As such, the work in this appeal does not constitute emergency public transportation and does not fall under Section 419’s authority.

Increased Operating Expenses

The Stafford Act § 403(a) authorizes FEMA to provide assistance essential to meet immediate threats to life, property, public health and safety, resulting from a major disaster.[9]  Emergency protective measures, a type of emergency work,[10] must eliminate or lessen immediate threats to life, public health or safety to be eligible for PA.[11]  Examples of eligible emergency protective measures include search and rescue, emergency mass care and shelter, and the provision of temporary facilities for schools.[12]  However, services that an applicant normally provides may increase in cost due to or after a disaster, and these increased operating costs are generally not eligible for PA.[13]  In contrast, reasonable short term costs directly related to accomplishing emergency health and safety tasks as part of eligible emergency protective measures may be eligible for PA.[14] 

The Grantee finds fault with the region’s determination that the increased operating expenses are ineligible, arguing it was made without explanation.  However, neither the Grantee nor the Applicant identified with documentation, a specific immediate threat that was lessened by the transportation.  Additionally, they have not demonstrated these transportation costs were directly related to accomplishing an emergency task.  The busing of students to and from school was a service the Applicant normally provided, which increased after the disaster when it began transporting students to and from an alternate location. 

In summary, neither the Grantee nor the Applicant have demonstrated that transporting displaced students for the remainder of the school year was an emergency protective measure necessary to meet an immediate threat to life, property, public health or safety, as required by Stafford Act § 403.[15]  Therefore, as the work was not part of an eligible emergency protective measure, the RA appropriately concluded the costs are an ineligible increased operating expense.[16] 

Conclusion

The requested costs are increased operating expenses that are not eligible for PA.[17]  Therefore, the appeal is denied.

 


[1] See generally Public Assistance Guide, FEMA 322, at 75 (June 2007) [hereinafter PA Guide] (noting FEMA implements the DFA through Mission Assignments, using other appropriate Federal agencies to complete the work).

[2] The Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988, Pub. L. No. 93-288, § 419, 42 U.S.C. § 5186 (2007).

[3] Memorandum from Disaster Assistance Rep., N.Y. St. Div. of Homeland Sec. and Emergency Servs. (NYSOEM), to Disaster Assistance Officer, NYSOEM, at 2 (Nov. 12, 2015).

[4] Stafford Act § 419 (emphasis added). 

[5] Title 44 Code of Federal Regulations (44 C.F.R.) § 206.225(d) (2010).

[6] PA Guide, at 75.

[7] Id.; FEMA Second Appeal Analysis, San Mateo Cnty. Transit Dist., FEMA-1646-DR-CA, at 2 (Dec. 3, 2008).

[8] 42 U.S.C. § 11432 (2010) (gives authority to the Secretary of the Department of Education to provide grants to states for services that enable homeless children to enroll in and attend school); see generally id. § 11434a (defining “homeless” children as one who lacks a fixed, regular, and adequate nighttime residence, including children who are sharing the housing of other persons due to loss of housing, economic hardship, or a similar reason; or are living in emergency or transitional shelters).

[9] Stafford Act § 403(a); see 44 C.F.R. § 206.201(b).

[10] PA Guide, at 29.

[11] 44 C.F.R. § 206.225(a)(3); PA Guide, at 71.

[12] PA Guide, at 71-73.

[13] Id. at 54.  E.g. id. at 55 (classifying the increased cost associated with obtaining water from an alternate source as an ineligible increased operating expense).

[14] Id. at 55.

[15] See generally 44 C.F.R. § 206.204(c) and PA Guide, at 138 (noting that regulation requires emergency work to be completed within six months of the declaration date of the disaster unless a time extension is granted).  Here, the Applicant hired a driver to transport the students for seven months after the disaster declaration date, which is beyond the regulatory timeframe allowed for emergency work.  

[16] The Applicant argues for PA funding based on prior decisions by FEMA.  But see Letter from Branch Chief, FEMA N.Y. Sandy Branch, to Governor’s Authorized Rep., NYSOEM, and Dir. of School Facilities and Operation, Bellmore Merrick Central High, 1-3 (Apr. 21, 2017) (After FEMA approved PW 1790 (Version 1), the school submitted a change in scope of work (SOW) request seeking additional costs.  FEMA determined any additional costs were ineligible for PA, finding the requested costs were ineligible increased operating expenses.  Further, it stated that the original SOW approved was also ineligible for PA and was approved in error, but noted Section 705(c) of the Stafford Act precluded it from deobligating and recovering previously awarded funding because: (1) the payment was authorized by an approved agreement specifying the costs; (2) the costs were reasonable; and (3) the purpose of the grant was accomplished.).  As none of the PWs referenced by the Applicant are on appeal, this decision cannot consider the potential deficiencies related to the funding of those projects.    

[17] Additionally, FEMA has concerns the Applicant has not established it had legal responsibility to transport the displaced students; the record does not delineate the type of temporary housing the displaced students resided in, nor the exact location of the temporary residences.  However, because FEMA did not previously ask the Applicant to provide documentation in support of legal responsibility, it is not explored in this second appeal decision.

Last updated May 28, 2020