Evacuation, Medical Care, and Sheltering

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4458
Applicant	Military Department, St. of LA, National Guard
Appeal Type	Second
PA ID#	000-U04DA-00
PW ID#	PW 348
Date Signed	2021-11-19T17:00:00

Summary Paragraph

The Louisiana Military Department (Applicant) used National Guard aerial support to aid parishes and local governments with disaster support in July 2019, due to Hurricane Barry.  The Applicant requested funding for force account equipment (helicopters) used in its 29 flights, including its pre-positioning of helicopter resources prior to the disaster.  FEMA issued a Determination Memorandum finding that only 14 of the 29 flights were eligible for funding.  The Applicant appealed 14 of the 15 denied flights, contending it conducted some of these flights to perform safety inspections and that the pre-positioning of helicopter resources was prudent and necessary to avoid the storm’s path and provide ready access for evacuation or providing emergency medical care during the evacuation period.  FEMA denied the appeal, finding that the flights were used for post-storm surveillance and reconnaissance, and the other flights were for pre-positioning of International Search and Rescue (ISAR) helicopter resources, which are ineligible emergency work.  The Applicant appeals the denial regarding pre-positioning of its unused ISAR helicopter resources, stating the pre-positioned resources addressed the storm’s impending threat to life, public health, and safety in coastal areas by making the helicopter resources readily available for immediate evacuation and emergency medical care.

Authorities and Second Appeals

• Stafford Act § 403(a)(3).
• 44 C.F.R. § 206.225(a).
• PAPPG, at 57-58, 65-66.
• Va. Dep’t. of Emergency Mgmt., FEMA-4401-DR-VA, at 3.

Headnotes

• Costs related to pre-positioning resources for the declared incident are eligible if the resources are used for the performance of eligible emergency work.  However, costs to

pre-position resources to evacuate or provide emergency medical care during the evacuation period are eligible even if those resources are not ultimately used, provided the staging of those resources was necessary and prudent based on data at the time of staging.

• • The Applicant’s costs for staging and pre-positioning unused ISAR helicopter resources for either evacuating or providing emergency medical care during the evacuation period were necessary and prudent based on the data available at the time of the staging and are eligible for PA funding.

Conclusion

This appeal is granted, in part, for $12,068.51 for the staging and pre-positioning of the helicopters to evacuate or provide emergency medical care, as these measures were necessary and prudent to address an immediate threat.  The remaining $28,666.90 for re-positioning the helicopter resources is ineligible for PA funding because those flights did not address an immediate threat.   

Appeal Letter

Appeal Analysis

Background

From July 10 – 15, 2019, high winds, rain, and flooding from Hurricane Barry damaged several parishes in Louisiana.  The Louisiana Military Department (Applicant) used National Guard aerial support to aid parishes and local government with disaster support.  FEMA prepared Grants Manger Project 119716 to document the Applicant’s request for funding for actual airtime usage and airtime preparation of force account equipment (International Search and Rescue (ISAR)[1] helicopters).  The ISAR helicopters were pre-positioned and used in 29 flights for assigned missions.  On July 20, 2020, FEMA issued a Determination Memorandum finding that 14 of the 29 flights were eligible for funding as emergency work (because the aircrafts were used for eligible evacuation or providing emergency medical care during the evacuation period) and obligated Project Worksheet (PW) 348.  FEMA found the remaining 15 flights ineligible because the flights did not meet the criteria of emergency work.  FEMA found that: 1) some of the helicopters were pre-positioned, but emergency vehicles such as ambulances and buses are the only pre-positioning resources eligible in FEMA’s policy when not ultimately used; 2) some of the helicopters were re-positioned after disaster and emergency operations concluded and were not used in the performance of eligible emergency work; 3) some of the flights did not prevent an immediate threat; and/or 4) the costs were related to flights to conduct ineligible damage assessments.

 

First Appeal

On September 15, 2020, the Applicant appealed the denial of Public Assistance (PA) funding for 14 of the 15 ineligible flights.[2]  The Applicant contended it conducted aviation flight missions for the purpose of conducting safety inspections, not to assess damage and that the

pre-positioning of helicopter resources was for evacuation or providing emergency medical care during the evacuation period.  The Applicant also stated that FEMA policy listing vehicles as an example of eligible pre-positioned resources to be used in the performance of emergency work were not intended to be exhaustive.  The Applicant noted the pre-positioning was prudent and necessary, given the helicopters’ home facility location in the projected storm’s path.  On November 4, 2020, the Louisiana Governor’s Office of Homeland Security and Emergency Preparedness (Grantee) transmitted the appeal with a letter of support.  

On June 9, 2021, FEMA denied the appeal, finding the Applicant did not demonstrate the claimed costs were for eligible emergency work.  Specifically, FEMA determined that the Aviation Mission Requests for some flights did not specify the flights were used for safety inspections, but instead, showed the flights were used for post-storm surveillance and reconnaissance, which is ineligible work.[3]  Regarding the other remaining Aviation Mission Requests, FEMA determined that, although the requests for these flights document the

pre-positioning of ISAR helicopter resources for evacuation or providing emergency medical care during evacuation operations, FEMA policy does not specifically designate aircraft, including helicopters, as eligible pre-positioned resources in cases when the resources are not ultimately used for this purpose.  Instead, the policy is purposefully limited to ambulances and buses.

 

Second Appeal

On July 22, 2021, the Applicant appealed the denial of PA funding for pre-positioned resources totaling $12,068.51 and for re-positioned ISAR helicopters which were not ultimately used to conduct evacuations or providing emergency medical care during evacuations totaling $28,666.90.[4]  The Applicant contends the pre-positioned resources addressed Hurricane Barry’s impending threat to life, public health, and safety in coastal areas by making the helicopter resources readily available for immediate evacuation and emergency medical care.  The Applicant also contends that FEMA’s denial is inconsistent with law, regulation, and policy regarding emergency work.  On September 13, 2021, the Grantee transmitted the appeal with a letter of concurrence.

 

Discussion

FEMA is authorized to provide assistance for emergency protective measures to save lives or to protect public health and safety.[5]  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.[6]  This includes evacuation, search and rescue, and transporting and pre-positioning equipment and other resources for response.[7]  When transporting survivors who require emergency medical care, transport may include emergency air, sea, or ground ambulance services if necessary.[8]  Costs related to pre-positioning resources for the declared incident are generally only eligible if the resources are used in the performance of eligible emergency work.[9]  The only exceptions to this limitation are for costs to pre-position resources for evacuating, or providing emergency medical care during the evacuation period (such as ambulances and buses), which are eligible even if those resources are not ultimately used, provided the staging of those resources was necessary and prudent based on the data at the time of staging.[10]  

Here, the Applicant’s documentation establishes that, based on the initial weather forecasts and available information at the time, the Applicant made the decision to incur costs to stage and pre-position its ISAR helicopter resources away from an area in the storm’s projected path.

The documentation also demonstrates these actions were necessary, appropriate, and prudent emergency measures taken to evacuate or provide life-saving medical care.  Moreover, in the event of flooding, standby ISAR helicopter and boat resources may be the only possible option for first responders to provide these emergency functions and services.  Although the Applicant’s ISAR helicopter resources were not ultimately used for evacuation or emergency medical care due to the storm’s changing direction, the Applicant demonstrated that its emergency protective measures satisfy the exceptions for unused pre-positioned resources.[11]  In addition, eligible modes of transportation for unused pre-positioned resources are not limited to ambulances and buses, and may include emergency air, sea, and ambulance services if necessary.  Thus, the Applicant’s costs of $12,068.51, for staging and pre-positioning its ISAR helicopters are eligible for PA funding.[12]

The work and associated costs incurred to re-position the Applicant’s ISAR helicopters to their home base after the incident do not satisfy the evacuation or emergency medical exception for unused pre-positioned resources.[13]  Thus the $28,666.90 claimed for return flights of its ISAR helicopters is ineligible for PA funding because those flights did not address an immediate threat.

 

Conclusion

This appeal is granted, in part, for $12,068.51 for the staging and pre-positioning of the helicopters to evacuate or provide emergency medical care, as these measures were necessary and prudent to address an immediate threat.  The remaining $28,666.90 for re-positioning the helicopter resources is ineligible for PA funding because those flights did not address an immediate threat.   

 

[1] International Search and Rescue (ISAR) helicopters are used for search and rescue missions and are specially outfitted with equipment and technology to help serve that purpose.

[2] Letter from Dir., La. Mil. Dep’t., to Asst. Deputy Dir., Public Assistance, Governor’s Office of Homeland Security and Emergency Preparedness (GOHSEP) (Sept. 15, 2020) [hereinafter Applicant First Appeal].  The missions on appeal were: Mission #19192-001 (two flights to evaluate preparation and status of the levee system), Mission #19193-001 (five pre-positioned aircrafts to Chennault La. for SAR, one of which FEMA found eligible because it was ultimately used for evacuation or providing emergency medical care during the evacuation period), Mission #19196-003 (four re-positioned flights of unused pre-positioned aircrafts returned from Chennault La.), Mission #19195-002 and #19196-002 (one flight each to assess waterway/levee at critical flood stage), and Mission #19196-001 (three flights to assess levee breech and street flooding).  Mission #19196-001 for $14,846.11 (one flight to assess waterway/levee at critical flood stage) was not appealed and the amount sought for Mission # 19193-001 was reduced from $15,258.50 to $2,474.35.

[3] Applicant First Appeal, at attach. 3, Aviation Mission Requests.

[4] One of the five re-positioned helicopters was ultimately used for evacuation or providing emergency medical care during the evacuation period and is not included in this appeal.  The Applicant also is no longer appealing costs FEMA denied as ineligible damage assessments.

[5] Robert T. Stafford Disaster Relief and Emergency Assistance Act § 403(a)(3), 42 U.S.C. § 5170b(a)(3) (2018).

[6] Title 44 of the Code of Federal Regulations § 206.225(a) (2018).

[7] Public Assistance Program and Policy Guide, FP-104-009-2 at 57-58 (Apr. 2018) [hereinafter PAPPG]. 

[8] Id. at 65 (also noting that the mode of transportation for evacuation services generally should be customary and appropriate for the work required).

[9] Id. at 60.

[10] Id.

[11] See FEMA Second Appeal Analysis, Va. Dep’t. of Emergency Mgmt., FEMA-4401-DR-VA, at 3 (Dec. 4, 2020) citing FEMA Second Appeal Analysis, Long Island Power Auth., FEMA-4322-DR-NY, at 3 (Sept. 4, 2019) (noting that the only instances which allow reimbursement for unused pre-positioned resources relate to costs for evacuating or providing emergency medical care because they are lifesaving measures).

[12] This determination is based on Version 3.1 of the PAPPG.  For incidents declared on or after June 1, 2020, FEMA will apply the policy in effect at that time (currently Version 4).

[13] Applicant First Appeal, at attach. 3, Aviation Mission Requests; See PAPPG, at 66 (listing circumstances when PA funding for activating, staging, and using ambulance services ends, including when it is determined that the incident did not impact the area where ambulances were staged or when the immediate threat has been eliminated and demand for services has returned to normal operation levels).