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 Kentucky on March 28, 2020, with an incident period of January 20, 2020, to May 11, 2023. The Anchorage Middletown Fire and Emergency Medical Services (Applicant) requested reimbursement of $324,653.89 in costs related to force account labor (FAL) overtime (OT), incurred from May 3, 2020, to December 19, 2020. The Applicant stated that its claim for FAL OT costs was due to backfilling firefighters and Emergency Medical Services (EMS) personnel who were absent due to quarantine. FEMA prepared Category B Grants Manager Project (GMP) 182121 to document the project.[1]

On June 4, 2021, FEMA issued a Request for Information (RFI), requesting that the Applicant provide documentation demonstrating that FAL OT activities were in direct response to the threat of COVID-19. On June 10, 2021, the Applicant responded, stating that all calls for EMS were presumed to have COVID-19 positive contact or exposure.

On May 3, 2022, FEMA issued a Determination Memorandum (DM), finding that $324,653.89 for requested FAL OT costs were not related to eligible emergency protective measures and instead represented increased operating costs.[2] FEMA stated that the Applicant’s requested EMS FAL OT costs related to covering work for staff on leave due to the pandemic and to maintain operational staffing levels during the pandemic. FEMA explained that such costs may be reimbursable if the employee temporarily replaced is performing eligible emergency work; however, in this case, the employees were at home not working. Thus, FEMA found the costs incurred for covering staff who were on leave were staffing measures implemented to maintain typical levels of governmental services rather than disaster-related emergency services.

First Appeal

On June 17, 2022, the Applicant submitted a first appeal, requesting the previously denied FAL OT costs. The Applicant stated that work and related costs were the direct result of the pandemic and were needed to save lives and protect public health and safety. The Applicant asserted that OT hours were unscheduled and unbudgeted costs to backfill ambulance personnel in the performance of COVID-19 related activities.[3]

The Applicant stated the work included performing COVID-19 related activities, such as disinfecting ambulances, researching new and alternative personal protective equipment, and ordering and inventorying supplies. The Applicant added that it had to temporarily quarantine personnel due to COVID-19 exposure and consequently called in additional personnel to staff the ambulances. The Applicant explained that these were not increased, normal operating expenses because they were directly related to the disaster and were reasonable to ensure an adequate response. The Applicant provided, among other documents, payroll reports, labor spreadsheets, and EMS dispatch logs. In a letter dated March 11, 2023, Kentucky Emergency Management (Recipient) transmitted the appeal to FEMA, expressing its support.

On September 25, 2023, the FEMA Region 4 Regional Administrator denied $324,653.89 in FAL OT costs, finding that the Applicant did not demonstrate that the costs were tied to eligible emergency protective measures. FEMA first explained that the employees that the backfill personnel replaced (i.e., those quarantined), were not performing eligible emergency work. FEMA then noted that the Applicant had not demonstrated the backfill personnel were themselves performing eligible emergency work. FEMA stated that although the Applicant provided spreadsheets with employee names and hours worked for the backfill employees, the spreadsheets lacked a description of the work each employee performed to tie the requested costs to eligible work.

Second Appeal

On November 23, 2023, the Applicant submitted a second appeal, requesting $324,653.89 in FAL OT costs and reiterating its first appeal arguments. In a letter dated November 27, 2023, the Recipient transmitted the appeal to FEMA, expressing its support.

Discussion

FEMA is authorized to provide assistance for emergency protective measures to save lives and to 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] In response to COVID-19, eligible emergency protective measures include certain measures implemented to facilitate the safe opening and operation of eligible facilities, including the purchase and distribution of face masks and personal protective equipment, cleaning and disinfection, COVID-19 diagnostic testing, screening and temperature scanning, and purchase and installation of temporary physical barriers and signage.[6] FEMA may also provide assistance for eligible medical care, which 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; and medically necessary treatment of COVID-19 patients.[7]

The applicant may need to temporarily replace an employee who is responding to the incident.[8] OT costs for backfill employees are eligible, even if the backfill employees are not performing eligible work, as long as the employees they are replacing are performing eligible emergency work.[9] FEMA may also provide assistance for OT FAL costs that are directly tied to the performance of eligible work and adequately documented.[10] It is the applicant’s responsibility to provide documentation to substantiate its claim as eligible and to clearly explain how those records support its appeal.[11]

Here, the Applicant requested reimbursement for FAL OT costs 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 due to COVID-19 infection or exposure, quarantining employees does not constitute an eligible emergency protective measure under FEMA’s COVID-19 policies.[12] Therefore, the FAL OT costs of these employees may not be considered eligible for reimbursement under provisions in FEMA policy applicable to backfill employees.

The Applicant alternatively stated that its staff who replaced the quarantined employees were performing eligible work related to COVID-19, such as staffing and disinfecting ambulances, and transporting COVID-19 patients. To support this claim, the Applicant provided payroll and labor spreadsheets, and EMS dispatch logs. However, the labor spreadsheets include generic work descriptions of “COVID 19”[13] without detailing specific eligible activities. Although the dispatch log indicates that some EMS calls were for patients with confirmed or suspected COVID-19 infection,[14] others were for routine emergency calls. The documentation provided by the Applicant does not differentiate between costs associated with eligible and ineligible work. Therefore, the Applicant has not demonstrated the requested FAL OT costs are directly tied to the performance of eligible emergency work.

Conclusion

The Applicant did not demonstrate that its claimed FAL OT costs are directly tied to the performance of eligible work. Therefore, this appeal is denied.