Force Account Labor & Equipment Costs; Immediate Threat

Appeal Brief

Appeal Letter

Appeal Analysis

Background

The coronavirus (COVID-19) pandemic resulted in a major disaster declaration for the State of Florida on March 25, 2020, with an incident period beginning January 20, 2020, through May 11, 2023. The Fort Myers Beach Fire Control District (Applicant), a local government entity, requested reimbursement under FEMA’s Public Assistance (PA) program for costs associated with overtime (OT) force account labor (FAL) for backfilled firefighters and paramedics incurred from October 8, 2020 through April 16, 2021. The Applicant also requested reimbursement for costs associated with purchasing personal protective equipment and disinfecting supplies, among other items. FEMA prepared Grants Manager Project 183046 to document the Applicant’s request for $144,876.88.[1]

FEMA transmitted a Request for Information (RFI) on October 5, 2021, seeking clarification on how the Applicant’s claimed OT FAL hours related to its response to an immediate threat from COVID-19, such as treating suspected or confirmed COVID-19 cases. The Applicant responded, clarifying that the OT FAL was for employees backfilling for others who had contracted COVID-19 and entered mandatory quarantine per the Applicant’s internal policy.[2] The Applicant claimed it needed to incur these costs to maintain emergency services in the community.

In a Determination Memorandum dated May 24, 2022, FEMA denied the $128,238.32 in claimed OT FAL. FEMA stated the employees who were quarantined were not performing eligible work. Therefore, the backfill employees FAL OT was not eligible.

First Appeal

The Applicant submitted an appeal dated July 20, 2022, for the $128,238.32 in OT FAL. The Applicant reiterated that its backfilled FAL costs were necessary to maintain staffing levels per the National Fire Protection Association standards and state statutes. Additionally, the Applicant claimed it followed Center for Disease Control and Prevention guidance that employees who present COVID-19 or flu-like symptoms shall not report to work. Furthermore, the Applicant claimed the FAL, who backfilled employees who were quarantined, performed eligible emergency protective measures. In support of its claim, the Applicant provided decontamination procedures, staffing policies, safety directives, and call logs.[3] The Florida Division of Emergency Management (Recipient) transmitted the Applicant’s appeal recommending approval on a letter dated September 12, 2022.

The FEMA Region 4 Regional Administrator, in a letter dated November 3, 2022, denied the Applicant’s appeal. FEMA found that the Applicant had not substantiated that the FAL used to backfill quarantined employees performed eligible emergency work. FEMA also found that the call logs provided on first appeal did not identify which personnel were responding to the calls or explain how those calls were COVID-19-specific, rather than routine emergency responses.

Second Appeal

The Applicant filed a second appeal dated December 28, 2022, reiterating first appeal arguments that the claimed OT FAL is eligible under the policy for backfill employees and also because the costs are associated with work directly related to an immediate response to a suspected or confirmed COVID-19 positive individual. On March 1, 2022, the Recipient transmitted the second appeal, recommending approval.

Discussion

FEMA is authorized to provide PA funding for emergency protective measures to save lives and protect public health and safety.[4] 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.[5] The Applicant may need to temporarily replace an employee who is responding to the incident.[6] OT costs for the backfill employee are eligible even if the backfill employee is not performing eligible work, as long as the employee that they are replacing is performing eligible emergency work.[7] FEMA may also provide assistance for OT FAL costs associated with the performance of eligible emergency work under FEMA’s COVID-19 policies, including those related to medical care.[8] Eligible medical care may include emergency and inpatient treatment for patients both with confirmed and suspected cases of COVID-19 including: medical transport related to COVID-19; triage and medical necessary tests and diagnosis related to COVID-19; medically necessary treatment of COVID-19 patients.[9] To be eligible, costs must be directly tied to the performance of eligible work.[10]

Here, the Applicant requested reimbursement for OT FAL hours incurred by employees who were replacing permanent budgeted employees quarantined due to COVID-19. Although the Applicant argues that these quarantined employees were performing emergency protective measures by quarantining in accordance with its policy, quarantining employees does not constitute an eligible emergency protective measure under FEMA’s COVID-19 policies.[11] Therefore, the OT FAL of these employees may not be considered eligible for reimbursement under provisions in FEMA policy applicable to backfill employees.

The Applicant alternatively states that the FAL costs are eligible because the employees were responding to COVID-19-related calls, and therefore as it claims, performing eligible emergency protective measures. However, the documentation does not substantiate that the employees were performing eligible work in accordance with FEMA’s COVID-19 medical care policy, or any other applicable COVID-19 policy. For example, the documentation provided does not demonstrate that these employees provided medical treatment to or transportation of COVID-19 patients, with either confirmed or suspected cases of COVID-19. Rather, the call logs provided show routine emergency calls.[12] Additionally, the documentation does not identify which employees responded to which calls. Accordingly, the Applicant has not substantiated that the OT FAL hours claimed were for employees that were performing emergency protective measures in response to an immediate threat from COVID-19.

Conclusion

The Applicant did not demonstrate that its claimed OT FAL costs are eligible. Therefore, this appeal is denied in the amount of $128,238.32.