Force Account Labor & Equipment Costs, Immediate Threat

Appeal Brief

Summary Paragraph

The coronavirus (COVID-19) pandemic resulted in a major disaster declaration for Florida on March 25, 2020, with an incident period from January 20, 2020, to May 11, 2023. The City of Hialeah (Applicant) sought Public Assistance (PA) for Force Account Labor overtime (FAL OT) and Force Account Equipment (FAE) costs incurred responding to COVID-19. FEMA prepared Grants Manager Project 157864 to document the Applicant’s total claimed costs. The FAL OT the Applicant claimed was associated with various activities, including roll call/assignments, administrative tasks, and peer support meetings. The Applicant submitted several documents, including FAL and FAE summary spreadsheets, timesheets, and daily log sheets, to support its request. FEMA issued a Determination Memorandum, approving $79,143.94 of the requested costs but denying the remaining costs because FEMA found the Applicant had not: (1) demonstrated the remaining requested FAL OT costs were related to the performance of eligible emergency protective measures, and (2) provided supporting documentation to substantiate its claim for the FAE costs. The Applicant filed a first appeal, asserting that its activities were eligible emergency protective measures to respond to the immediate threat of COVID-19 and that FEMA’s cost summary contained multiple errors and omissions. The Florida Division of Emergency Management (Recipient) transmitted the first appeal with its support. The FEMA Region 4 Regional Administrator denied the appeal, finding the Applicant did not provide adequate documentation directly tying its FAL and FAE costs to the performance of eligible emergency work. The Applicant submits a second appeal, seeking $14,258.86 in FAL OT and FAE costs, and reiterating first appeal arguments.

Authorities

• Stafford Act §§ 403(a)(3), 416, 502.
• 44 C.F.R. §§ 206.206(a), 206.223, 206.225.
• FEMA Fact Sheet, Eligible Emergency Protective Measures, at 1-2; O&O Policy, at 4-5; Work Eligible for Public Assistance Policy, at 4-5, Medical Care Policy, at 4; FEMA Recovery Policy FP 104-11-2, Public Assistance Management Costs (Interim), at 4.
• PAPPG, at 19, 21, 24, 26, 133.
• City of Atlanta, FEMA-4501-DR-GA, at 4, Strycker’s Bay Neighborhood Council, Inc., FEMA-4480-DR-NY, at 5, City of Niceville, FEMA-4486-DR-FL, at 3-4.

Headnotes

• 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. For FAE usage to be eligible, it must be used in the performance of eligible work.
  • The Applicant has shown that some of its claimed FAL OT costs are linked to the performance of eligible emergency protective measures in response to COVID-19 but has not shown that the FAE usage was linked to eligible emergency work.

Conclusion

FEMA finds that the Applicant has shown some of its claimed FAL OT costs are linked to the performance of eligible emergency protective measures in response to COVID-19. Therefore, this appeal is partially granted for $3,600.64 in FAL OT.

Appeal Letter

Appeal Analysis

Background

The coronavirus (COVID-19) pandemic resulted in a major disaster declaration for Florida on March 25, 2020, with an incident period from January 20, 2020, to May 11, 2023. The City of Hialeah (Applicant) sought Public Assistance (PA) funding for force account labor overtime (FAL OT) and force account equipment (FAE) costs that the Applicant’s fire department incurred between February and November of 2020. The Applicant’s claimed FAL OT was associated with various activities, including but not limited to roll call/assignments, administrative/paperwork, maintenance repairs, truck and station disinfection, and COVID-19 antibody testing activities. On September 17, 2021, FEMA issued a Request for Information (RFI), asking the Applicant to break down the requested costs and describe the activities conducted for the hours worked. The Applicant responded by submitting several documents, including FAL and FAE summary spreadsheets, timesheets, and daily log sheets (ICS-214 reports). On October 22, 2021, FEMA sent a second RFI, seeking further clarification and requested an updated spreadsheet separating all FAL activities by cost. The Applicant did not respond to the second RFI. 

FEMA issued a Determination Memorandum on March 7, 2022, which the Applicant received on June 27, 2022, via certified mail.[1] FEMA approved certain FAL OT and FAE costs that the Applicant had demonstrated were related to eligible emergency protective measures. For instance, FEMA found the Applicant directly tied certain FAL OT hours to eligible work like cleaning and disinfecting fire trucks, the distribution of PPE, and COVID-19 diagnostic testing. FEMA denied the remaining costs, however, because FEMA found the Applicant had not: (1) demonstrated the remaining requested FAL OT costs were related to the performance of eligible emergency protective measures, and (2) provided supporting documentation to substantiate its claim for the FAE costs. 

First Appeal

In a letter dated July 7, 2022, the Applicant submitted its first appeal, requesting additional costs of $14,258.86, $14,242.51 in FAL OT and $16.35 in FAE costs (i.e., mileage), that the Applicant claimed its fire department incurred for COVID-19-related tasks. The Applicant disagreed with FEMA’s prior accounting of eligible costs and provided revised cost summary spreadsheets with its appeal. The Applicant-identified activities on the spreadsheets included entries such as admin/paperwork, roll call/assignments, repairs of ventilator masks (i.e., maintenance), fueling vehicles, peer support and meetings for its Critical Incident Stress Management (CISM), COVID-19 antibody testing activities, and company training.

First, the Applicant stated the entry of admin/paperwork was associated with the Applicant’s staff documenting eligible tasks it performed (i.e., deep cleaning and sanitizing vehicles, stockpiling, and distributing personal protective equipment (PPE), developing COVID-19 policy, and performing COVID-19 testing). Second, the Applicant stated the activity line-item label for roll call/assignment referenced the work of assigning FAL to perform eligible work (i.e., decontaminating trucks; deep cleaning and sanitizing vehicles; packaging, distributing, and restocking supplies; and preparing stock inventory of PPE for staff). Third, the Applicant asserted that the entry for maintenance referred to repairing broken ventilator masks. Fourth, the Applicant stated that the activity line-item label for fuel was for time spent to refuel emergency vehicles used to perform eligible emergency protective measures. Fifth, the Applicant asserted that its peer support and meetings for its CISM referred to helping first responders deal with traumatic events and informing, communicating with, and preparing staff to navigate their way through COVID-19. Lastly, the Applicant states that other entries such as “COVID-antibody testing” and “company training” were actions that lessened the danger of infection by inhibiting the spread of the virus and, thus, were eligible emergency protective measures. 

The Applicant also asserted that FEMA erred and mistakenly did not transfer certain data in the ICS-214 reports to FEMA’s FAL cost summary spreadsheet. Regarding the FAE costs, the Applicant stated it agreed with the total number of miles FEMA calculated as being associated with eligible work, just not the total cost. The Applicant stated that FEMA’s equipment cost summary spreadsheet did not add the final cost of each line item correctly.

The Recipient received the Applicant’s first appeal on August 7, 2022, and transmitted the Applicant’s first appeal to FEMA on September 7, 2022, with a letter recommending approval.

The FEMA Region 4 Regional Administrator denied the appeal on October 3, 2023. FEMA found the Applicant did not provide documentation directly tying its FAL OT and FAE costs to the performance of eligible emergency protective measures. For instance, FEMA found that the Applicant’s entries for admin/paperwork, roll call/assignment, maintenance, fuel, and CISM did not clearly describe potentially eligible work.

Second Appeal

In a letter dated November 24, 2023, the Applicant submitted its second appeal, reiterating its previously raised arguments. The Applicant asserts that a re-review of the documents it provided on first appeal, including the Applicant’s revised/annotated cost summary spreadsheet and the supporting ICS-214 activity logs, allows FEMA to validate the Applicant’s additional requested costs of $14,258.86. On January 25, 2024, the Recipient transmitted the Applicant’s second appeal with its support.[2] 

Discussion

FEMA is authorized to provide assistance for emergency protective measures to save lives or to protect public health and safety.[3] 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.[4] In response to COVID-19, eligible emergency protective measures include  Emergency Operation Center (EOC) costs to direct and coordinate resources and response activities, cleaning and disinfection of eligible facilities, training and technical assistance specific to the declared event, movement of supplies and equipment, the dissemination of communications of general health and safety information to the public, the purchase and distribution of PPE, and COVID-19 diagnostic testing.[5]

FEMA may provide assistance for FAL OT for emergency work.[6] FEMA may also provide funding based on mileage for vehicles, if the mileage is documented and is less costly than hourly rates.[7] To be eligible, costs must be tied to the performance of eligible work and adequately documented.[8] 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.[9]

Here, the Applicant first requests additional FAL OT costs associated with the description of admin/paperwork. The Applicant explains that the admin/paperwork entry is associated with its staff documenting eligible emergency work it performed, such as cleaning and disinfecting its fire truck vehicles. In the revised cost summary, the Applicant wrote comments next to the admin/paperwork activity entries that included potentially eligible management costs of “return travel and documentation of work performed (paperwork for documenting the deep cleaning),” along with generic entries of “paperwork for documenting the eligible EPM” and “OT admin/paperwork for daily activities.”[10] However, management costs are not eligible under the Category B project that is the subject of this appeal and must be claimed under a separate Category Z project.[11] 

Next, the Applicant requests FAL OT associated with various other entries. First, the Applicant cites to the entries for roll call/assignment, which it states involved the daily assignments of COVID-19 response activities like cleaning and disinfecting fire trucks, moving supplies, and distributing PPE. This roll call/assignment work, though it potentially involved the coordination of eligible emergency activities, did not pertain to an EOC. Thus, they are not eligible under the policy that permits FEMA funding for an EOC’s coordination of resources. Second, the Applicant points to entries for maintenance (i.e., repairing ventilator masks) and refueling emergency response vehicles. The Applicant, however, has not provided documentation that shows the repair of ventilator masks was eligible emergency work performed in response to COVID-19 or that the refueling of the vehicles was tied to specific eligible work conducted in response to COVID-19. 

Third, the Applicant cites to CISM-related entries that it states are associated with providing peer support and meetings for its CISM to help first responders deal with traumatic events, and to inform, communicate with, and prepare staff to navigate their way through the COVID-19 pandemic. However, the Applicant has not demonstrated the CISM-related work involved the eligible dissemination of communications to the public, rather than the dissemination of information to its own staff. In addition, the Applicant has not demonstrated that any peer support activities constituted eligible emergency protective measures implemented to address an immediate threat resulting from the declared incident.[12] Fourth, although the Applicant’s revised cost summary spreadsheet contains “COVID training” entries, it has not provided supporting documentation that substantiates it conducted eligible training specific to the declared event. Lastly, the Applicant cites to, among other remaining miscellaneous entries, COVID-19 antibody testing. FEMA previously approved FAL OT costs for the Applicant’s COVID-19 diagnostic testing activities, but COVID-19 antibody testing is distinguishable from eligible COVID-19 diagnostic testing and is therefore ineligible.[13] In sum, the Applicant has not demonstrated the entries previously found ineligible in the revised cost summary spreadsheet represent eligible emergency protective measures in response to COVID-19 under any of FEMA’s COVID-19 policies. 

In contrast to the above, the Applicant has demonstrated that FEMA incorrectly entered or erroneously omitted certain FAL OT entries in the cost summary spreadsheet that the Agency used for final accounting. For instance, some entries for decontaminating trucks that involved the cleaning and disinfection of fire truck vehicles (an activity for which FEMA has previously approved FAL OT for under this project) were erroneously omitted when FEMA transferred information from the ICS-214 reports to FEMA’s cost summary sheet spreadsheet. Based on the review of the documentation, the Applicant has demonstrated an additional $3,600.64 in FAL OT costs that represent prior accounting errors are directly tied to eligible work and are therefore, eligible for PA funding.[14]

Lastly, the Applicant requests $16.35 for FAE mileage due to another claimed FEMA accounting error. However, $4.36 of the Applicant’s requested FAE cost is related to peer support/CISM (an entry not associated with eligible emergency work per the above discussion) and the remaining $11.99 of FAE costs for is a duplicate entry for COVID-19 diagnostic testing that has already been approved. Therefore, the FAE costs are not eligible.

Conclusion

The Applicant has demonstrated $3,600.64 of its claimed FAL OT costs are directly tied to the performance of eligible emergency protective measures in response to COVID-19. Therefore, this appeal is partially granted.