Immediate Threat

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster4488
ApplicantChurch of Saint Leo the Great
Appeal TypeSecond
PA ID#025-UIIC2-00
PW ID#PW 488/GMP 148736
Date Signed2022-06-08T16:00:00

Summary Paragraph

The coronavirus (COVID-19) pandemic resulted in a major disaster declaration (DR-4488-NJ) for the State of New Jersey on March 25, 2020.  The Applicant is a Private Nonprofit that operates a school, which it closed on March 13, 2020, as a result of COVID-19.  The Applicant requested $846,092.00 in Public Assistance (PA) for the purchase of personal protective equipment, materials, supplies and equipment, and payment for plumbing, construction, and air filtration service contracts, to assist in reopening its school.  FEMA issued a Determination Memorandum, denying $830,017.00 of the request.  FEMA found that the costs were either associated with ineligible permanent facility upgrades, or were ineligible preventative measures to ensure continuity of operations in a COVID-19 environment.  The Applicant submitted a first appeal, and asserted that all the work responded to the immediate threat of COVID-19.  The New Jersey Governor’s Division of State Police, Recovery Bureau (Grantee) supported the appeal.  The FEMA Region II Acting Regional Administrator partially granted the first appeal, awarding a total of $47,261.70 for plexiglass barriers, masks, and thermometers.  FEMA found the costs to construct classroom spaces, facility maintenance/upgrades, and miscellaneous supplies and materials were not eligible emergency protective measures under the Coronavirus (COVID-19) Pandemic: Safe Opening and Operating Work Eligibility for Public Assistance (Interim) (Version 2) (Sept. 8, 2021) (O&O Policy).  The Applicant submits a second appeal seeking reimbursement of a total of $386,617.00 for converting bathrooms to touchless facilities, an air filtration system, a COVID-19 isolation room, converting the library into two classrooms to support social distancing, and remodeling rooms to support remote learning.  The Grantee supports the appeal. 

Authorities and Second Appeals

  • Stafford Act § 403(a)(3).
  • 44 C.F.R. §§ 206.223(a)(1), 206.225(a)(3)(i).
  • PAPPG, at 57.
  • FP 104-21-0003, at 5.

Headnotes

Conclusion

The Applicant has not demonstrated it performed eligible emergency protective measures to safely open and operate a facility.  Accordingly, the Applicant’s work is not eligible for funding under the PA program.  Therefore, this appeal is denied.

 

Appeal Letter

Lieutenant Michael Gallagher

Governor's Authorized Representative

Division of State Police, Recovery Bureau   

1034 River Road

West Trenton, New Jersey 08628      

 

Re:  Second Appeal – Church of Saint Leo the Great, PA ID: 025-UIIC2-00, FEMA-4488-DR-NJ, Project Worksheet 488, Grants Manager Project 148736, Immediate Threat

 

Dear Lieutenant Gallagher:

This is in response to a letter from your office dated March 9, 2022, which transmitted the referenced second appeal on behalf of the Church of St. Leo the Great (Applicant).  The Applicant is appealing the U.S. Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of funding in the amount of $386,617.00 to construct classroom spaces and for facility maintenance/upgrades.

As explained in the enclosed analysis, I have determined the Applicant has not demonstrated it performed eligible emergency protective measures to safely open and operate a facility.  Therefore, this appeal is denied.

Please inform the Applicant of my decision.  This determination is the final decision on this matter pursuant to 44 C.F.R. § 206.206, Appeals.

 

                                                                                                                 Sincerely,

                                                                                                                      /S/

                                                                                                                  Ana Montero

                                                                                                                  Division Director

                                                                                                                  Public Assistance Division

 

Enclosure

cc:  David Warrington

Regional Administrator

FEMA Region II

 

Appeal Analysis

Background

The coronavirus (COVID-19) pandemic resulted in a major disaster declaration for the State of New Jersey on March 25, 2020.  The Church of St. Leo the Great (Applicant) is a Private Nonprofit that operates a school, which it closed on March 13, 2020, as a result of COVID-19.  The Applicant requested $846,092.00 Public Assistance (PA) funding for the purchase of personal protective equipment, materials, supplies and equipment, and payment for plumbing, construction, and air filtration service contracts, to assist in reopening its school.  FEMA issued a Determination Memorandum, denying $830,017.00 of the request.  FEMA found that the costs were either associated with ineligible permanent facility upgrades, or were ineligible preventative measures to ensure continuity of operations in a COVID-19 environment. 

First Appeal

The Applicant submitted its first appeal, requesting FEMA reconsider the $830,017.00 in denied costs because all costs were necessary to eliminate or lessen immediate threats to life, public health or safety.  The Applicant also stated that it documented all of its costs with invoices for the item or service.  The New Jersey Governor’s Division of State Police, Recovery Bureau (Grantee) transmitted the Applicant’s appeal with a letter of support to FEMA on June 8, 2021. 

The Region II Acting Regional Administrator (RA) partially granted the first appeal, finding the Applicant supported its claim for the purchase of materials and supplies totaling $47,261.70, including plexiglass barriers, masks, and thermometers as eligible emergency protective measures.  However, FEMA found the costs to construct classroom spaces, facility maintenance/upgrades, and miscellaneous supplies and materials were not eligible emergency protective measures under FEMA Policy (FP) 104-21-0003, Coronavirus (COVID-19) Pandemic: Safe Opening and Operating Work Eligibility for Public Assistance (Interim) (Version 2) (Sept. 8, 2021) (O&O policy).

Second Appeal

The Applicant submitted a second appeal on January 11, 2022, requesting funding for: (1) converting 35 bathrooms to touchless facilities ($107,340.00), (2) installing an air filtration system ($89,729.00); (3) constructing a COVID-19 isolation room ($8,350.00); (4) converting the library into two classrooms to support social distancing ($56,780.00); and (5) remodeling more than 45 rooms to support remote learning and electronic interfacing ($124,418.00).  The Applicant states that these items are expenses it would not have incurred but for COVID-19.  The Applicant also states the items of work were necessary to safely operate the school and state educational and health guidelines as well as the guidelines from the Centers for Disease Control provide support for the items of work for which it seeks reimbursement.  The Grantee supports the appeal.

 

Discussion

Eligible emergency work includes emergency protective measures that are necessary to save lives and protect public health and safety.[1]  To be eligible for PA, the items of work must be required as a result of the disaster,[2] and the emergency protective measures must eliminate or lessen immediate threats to lives, public health, or safety.[3]  Under the COVID-19 Declaration, FEMA may provide assistance for eligible emergency protective measures that include certain measures to safely open and operate an eligible facility.  Such assistance is limited to 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.[4]

The Applicant notes the work activities it performed facilitated social distancing in its school; however, they are not associated with any eligible activities in FEMA’s COVID-19 policies, or any comparable activity that eliminates or lessens an immediate threat.  FEMA policy allows for temporary physical barriers to support social distancing, but here, the Applicant made permanent physical changes, including converting its bathrooms to touchless bathrooms, installing an air filtration system, constructing a COVID-19 isolation room, converting a library into two classrooms, and remodeling more than 45 rooms.  The O&O policy limits eligible emergency protective measures in response to COVID-19 to specific categories, and none of the items for which the Applicant seeks funding is an eligible emergency protective measure falling under one of those categories in that policy.  Therefore, the claimed work and associated costs are ineligible for PA funding.

 

Conclusion

The Applicant has not demonstrated it performed eligible emergency protective measures to safely open and operate a facility.  Accordingly, the Applicant’s work is not eligible for funding under the PA program.  Therefore, this appeal is denied.

 

[1] 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) (2019). 

[2] 44 C.F.R. § 206.223(a)(1).

[3] 44 C.F.R. § 206.225(a)(3)(i); Public Assistance Program and Policy Guide, FP 104-009-2, at 57

 (Apr. 1, 2018).

[4] FEMA Policy 104-21-0003, Coronavirus (COVID-19) Pandemic: Safe Opening and Operation Work Eligible for Public Assistance (Interim) (Version 2), at 5 (Sept. 8, 2021).

Last updated June 8, 2022