Evacuation, Medical Care, and Sheltering

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4394
Applicant	Coastal Carolina University
Appeal Type	Second
PA ID#	000-UBWIX-00
PW ID#	GMP 76569
Date Signed	2021-08-24T16:00:00

Summary Paragraph

Coastal Carolina University (Applicant) closed its campus for 17 days in response to Hurricane Florence.  Student athletes for five of the Applicant’s athletic teams were not instructed to self-evacuate like the general student population and instead continued traveling for competitions.  These student athletes could not return to the closed campus between competitions, so the Applicant incurred expenses providing transportation, food, and lodging at various hotels.  FEMA issued a Determination Memorandum denying all expenses as ineligible increased operating costs for school-related sporting events rather than eligible emergency protective measures.  The Applicant appealed, contending the costs were emergency protective measures.  The FEMA Region IV Regional Administrator (RA) denied the appeal, concluding that the claimed costs were not eligible protective measures.  The RA reasoned that the expense of travel between venues while campus remained closed stemmed from the Applicant’s decision to proceed with athletic competitions during the disaster.  The Applicant submits its second appeal for $566,774.94, reiterating first appeal arguments. 

Authorities and Second Appeals

• Stafford Act § 403.
• 44 C.F.R. §§ 206.223(a)(1), 206.225(a).
• PAPPG, at 42, 58, 60-61, 63, 65.

Headnotes

• The Stafford Act grants FEMA discretionary authority to provide assistance that is essential to meet immediate threats to life and property resulting from a disaster.  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.
  • The operating costs of housing student athletes traveling for school-related sporting activities were not specifically related to eligible emergency actions to save lives or protect public health and safety or improved property directly resulting from the disaster.

Conclusion

The Applicant’s costs to provide transportation, lodging, and meals to its athletic teams between athletic events are not related to eligible emergency protective measures.  Accordingly, the claimed costs are not eligible for PA funding and this appeal is denied.

Appeal Letter

Appeal Analysis

Background

On September 10, 2018, as Hurricane Florence approached landfall, the Governor of South Carolina issued Executive Orders calling for the closure of colleges and universities and the evacuation of Horry County.[1]  Coastal Carolina University (Applicant), located in Horry County, closed its campus for 17 days.[2]

The Applicant’s emergency procedures required all students residing on-campus to complete Personal Evacuation Plans prior to the start of a semester.[3]  Rather than activating Personal Evacuation Plans and self-evacuating like the general student population,[4] student athletes for five of the Applicant’s athletic teams traveled for athletic competitions that were pre-scheduled, rescheduled, or relocated due to the disaster.  These student athletes could not return to campus during the period of closure.  The Applicant determined that these athletic teams were to stay together to ensure their safety during the duration of the disaster,[5] and incurred expenses for transportation, food, and lodging at various hotels for the teams.  The Applicant submitted a claim to FEMA for reimbursement of these expenses, and FEMA prepared Grants Manager Project (GMP) 76569 in the amount of $676,875.99 to document the expenses.

FEMA issued a Determination Memorandum on September 10, 2019,[6] denying all costs for GMP 76569 as ineligible increased operating costs.  FEMA concluded that the claimed transportation, non-congregate lodging, and food for athletic teams representing the Applicant in school-related sporting events were operating costs (already part of its annual budget) for the Applicant’s sports program and did not constitute emergency protective measures.

 

First Appeal

The Applicant submitted a first appeal letter to the South Carolina Emergency Management Division (Grantee) on November 12, 2019, contending its claimed expenses for student athlete transportation and interim accommodations were eligible emergency protective measures.  The Applicant argued that: (1) its budget only accounted for athletic event expenses; (2) the costs were incurred to protect student athletes from the threat that existed on campus; (3) it transported students to areas not impacted by the disaster; (4) congregate sheltering was not available outside of the disaster area; and (5) the need for immediate action did not afford time to seek pre-approval for non-congregate sheltering.  In a transmittal letter dated January 6, 2020, the Grantee expressed support for the appeal.

The FEMA Region IV Regional Administrator denied the first appeal in a January 7, 2021 decision, finding the claimed costs to be ineligible operating expenses and not eligible emergency protective measures.  FEMA determined that, unlike the general student population, student athletes were not required to follow their Personal Evacuation Plans or Applicant-assisted evacuations for those unable to self-evacuate.  Instead, the Applicant elected to proceed with various athletic competitions scheduled at venues outside and away from the hurricane impact zone.  FEMA concluded that these increased operating costs to travel between various sports venues while the Applicant’s campus remained closed were not eligible for Public Assistance (PA) funding.  FEMA noted that, but for the Applicant’s decision to transport its teams to participate in sports competitions, the on-campus residents could have either self-evacuated or have been evacuated to other colleges or universities in the region for shelter.  Lastly, FEMA noted that the Applicant did not seek FEMA pre-approval, as required, for non-congregate sheltering and additionally denied requested costs on that basis.

 

Second Appeal

The Applicant’s March 8, 2021 second appeal acknowledges a portion of previously submitted costs are ineligible for PA funding and requests a reduced total of $566,774.94.[7]  The Applicant argues that: (1) its actions were emergency protective measures to reduce immediate threats by sheltering student athletes until they could return to campus; (2) student athletes were evacuated because of the disaster and not in an effort to continue participating in athletic competitions; and (3) congregate sheltering was not available and the process for obtaining non-congregate sheltering approval was impractical.  In a transmittal letter dated May 3, 2021, the Grantee expresses support for the appeal at the revised amount.

 

Discussion

FEMA is authorized to provide assistance for emergency protective measures to save lives or to protect public health and safety.[8]  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.[9]  Eligible emergency protective measures may include evacuation and sheltering.[10]  Increased costs of operating a facility or providing a service are generally not eligible, even when directly related to the incident.[11] 

The Applicant did not incur eligible transportation expenses to evacuate those survivors unable to self-evacuate to emergency shelters, but instead incurred consecutive expenses to transport its athletic teams to, from, and between sporting events at multiple venues.  The claimed hotel and meal costs were incurred to house athletic teams traveling for athletic events, not emergency sheltering for survivors.  Despite the conditions that existed on its campus, the Applicant was not evacuating its athletic teams.  Rather, the Applicant incurred these expenses as a result of its decision to continue participating in athletic events and keep its athletic teams together to preserve its athletics schedules.  Emergency procedures existed for the Applicant’s student population, but the Applicant did not apply these provisions to its athletics teams.[12]  These activities were not evacuation and sheltering measures required due to an immediate threat resulting from the disaster.  The Applicant incurred transportation, lodging, and meal expenses for traveling between athletic events as part of its normal operation of providing higher education services.[13]

 

Conclusion

The Applicant’s costs to provide transportation, lodging, and meals to its athletic teams between athletic events are not related to eligible emergency protective measures.  Accordingly, the claimed costs are not eligible for PA funding and this appeal is denied.

 

[1] Hurricane Florence produced heavy winds, rainfall, and flooding across portions of South Carolina.  The President issued a major disaster declaration on September 16, 2018, with an incident period of September 8 through October 8, 2018.

[2] The Applicant closed its campus from September 11 through September 28, 2018.

[3] See Coastal Carolina University, Emergency Procedures, https://www.coastal.edu/hurricane/faqs/ (last visited July 23, 2021).

[4] The Applicant reported a fall semester opening occupancy of 4,458 students in its residence halls.  In accordance with the Applicant’s emergency response plans, it notified students living on-campus to activate their Personal Evacuation Plans; advising students to return home or accompany a friend returning home.  The Applicant transported 51 students unable to evacuate to Clemson University, with whom the Applicant arranged accommodations.

[5] First Appeal Letter from Emergency Mgmt. Dir., CCU, to Pub. Assistance Manager, S.C. Emergency Mgmt. Div., at 2 (Dec. 16, 2019).

[6] The Applicant received the Determination Memorandum on September 13, 2019.

[7] Second Appeal Letter from Emergency Mgmt. Dir., CCU, to Pub. Assistance Manager, S.C. Emergency Mgmt. Div. (Mar. 8, 2021).  The Applicant’s revised claim removes costs associated with rescheduling its home football game against Campbell University, pet lodging fees, meal costs for spouses, meal costs for those who could return home while staying in Myrtle Beach, Alabama rental car costs, women’s golf expenses incurred for the Lady Paladin Invitational, women’s soccer travel expenses to Kennesaw, Georgia and Boone, North Carolina, and men’s soccer lodging expenses for September 23-25, 2018.

[8] Robert T. Stafford Disaster Relief and Emergency Assistance Act § 403(a)(3), Title 42, United States Code § 5170b(a)(3) (2018); Title 44 Code of Federal Regulations (44 C.F.R.) § 206.225(a)(1) (2017).

[9] 44 C.F.R. §§ 206.223(a)(1), 206.225(a)(3)(i); Public Assistance Program and Policy Guide, FP 104-009-2, at 19 (Apr. 1, 2018) [hereinafter PAPPG].

[10] PAPPG, at 58, 65.

[11] Id., at 42, 60-61, 63 (Additional costs related to operating a facility as a result of the incident because of an increased demand for the services the facility provides are only eligible if certain requirements are met, including that the services be specifically related to eligible emergency actions to save lives or protect public health and safety.  Ineligible operating costs include, but are not limited to, costs for fuel for school bus service and provision of food, except when meals are part of an eligible emergency protective measure such as operating an Emergency Operations Center.).

[12] See CCU, Hurricane Florence After-Action Report and Improvement Plan, at 13 (Sept. 2018) (acknowledging the challenges of accommodating athletic teams during the extended campus closure and recommending development of a plan for athletic teams based on status in their “championship” or “non-championship” segments).

[13] In addition, the Applicant neither sought prior approval for its use of non-congregate sheltering nor provided justification for the non-congregate sheltering options used for its athletic teams.  Accordingly, the Applicant has not shown sufficient justification for use of non-congregate lodging in this case (See PAPPG, at 66-67, stating that applicants must submit a request justifying the need for non-congregate sheltering and obtain FEMA approval prior to sheltering survivors in non-congregate facilities, such as hotels.).