Immediate Threat

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4488
Applicant	Freehold Borough Board of Education
Appeal Type	Second
PA ID#	025-UUG15-00
PW ID#	PW 744/GMP 147711
Date Signed	2022-07-14T16:00:00

Summary Paragraph

The COVID-19 pandemic resulted in a major disaster declaration for the State of New Jersey.  The Freehold Borough Board of Education (Applicant) continued its free/reduced-cost meal distribution program during the closure of its schools and requested Public Assistance (PA) reimbursement for various items including $24,944.00 in freezer rental costs to store ingredients and prepared meals.  FEMA issued a Determination Memorandum denying the leased freezer costs, explaining that the Applicant had not satisfied the criteria for reimbursement outlined in FEMA Policy, Coronavirus (COVID-19) Pandemic: Purchase and Distribution of Food Eligible for Public Assistance (Food Policy).  The Applicant appealed, arguing that it followed federal requirements, that food insufficiency and insecurity were exacerbated during the pandemic, and that the freezers were necessary to continue service of student meals.  The New Jersey Division of State Police, Recovery Bureau (Grantee) forwarded the Applicant’s appeal with its support.  The FEMA Region II Regional Administrator denied the appeal, finding that the Applicant’s food distribution program was based on economic need rather than an inability to access food and did not meet the requirements of the Food Policy; therefore the associated leased freezer costs were ineligible.  The Applicant submits a second appeal, reiterating its first appeal arguments.

Authorities and Second Appeals

• Stafford Act § 403(a).
• 44 C.F.R. §§ 206.223(a)(1), 206.225(a)(3)(i).
• PAPPG, at 19, 57, 63.
• FP 104-010-03, at 3 (Food Policy).

Headnotes

• For the distribution of food to be considered an eligible emergency protective measure under the COVID-19 emergency, the applicant is responsible for demonstrating that the work and costs were incurred to respond to an immediate threat as a result of the  COVID-19 emergency.
  • The Applicant has not demonstrated that the costs for the freezer rentals for its food distribution service are eligible emergency protective measures in response to COVID-19.

Conclusion

The Applicant has not demonstrated that it performed eligible emergency protective measures in response to the COVID-19 emergency.  Therefore, this appeal is denied.

Appeal Letter

Appeal Analysis

Background

The coronavirus SARS-CoV-2 (COVID-19) resulted in a major disaster declaration for the State of New Jersey.  As a result of COVID-19, the Freehold Borough Board of Education (Applicant) leased freezers to support its meal distribution program, which it continued to operate while its schools were closed for normal operations.  In addition to providing meals to the students eligible for the free and reduced price breakfast and lunch programs,[1] it also implemented a community-wide dinner program for students and their families experiencing food insufficiency.  The Applicant requested Public Assistance (PA) reimbursement for various items including $24,944.00 in freezer rental costs.  On November 18, 2021, FEMA issued a Determination Memorandum denying the freezer leasing costs, finding that the Applicant had not satisfied the criteria for reimbursement outlined in FEMA policy, Coronavirus (COVID-19) Pandemic: Purchase and Distribution of Food Eligible for Public Assistance (“Food Policy”).[2] 

First Appeal

On December 8, 2021, the Applicant appealed, contending that it followed federal requirements, that food insufficiency and insecurity were exacerbated during the pandemic, and that the freezers were necessary to facilitate and continue its service of student meals.  The New Jersey  Division of State Police, Recovery Bureau (Grantee) forwarded the Applicant’s appeal to FEMA with its support.  The FEMA Regional Administrator for Region II denied the appeal, finding that the Applicant’s food distribution program was based on an economic need rather than an inability to access food, and thus did not meet the requirements of FEMA’s Food Policy.[3]  Therefore, FEMA found the Applicant’s costs to lease freezers to facilitate its food distibution program were ineligible.

Second Appeal

On May 4, 2022, the Applicant submitted its second appeal, reiterating its first appeal arguments.  In addition, the Applicant contends that: federal and State law required it to establish and continue its food distribution program;[4] it provided proof of its students’ reduced ability to physically access food under the Food Policy requirements; and its food distribution process required storage of meals and ingredients.  The Grantee forwarded the Applicant’s appeal to FEMA with its support.

 

Discussion

FEMA is authorized to provide emergency protective measures to save lives and 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]  Under the COVID-19 declarations, FEMA may provide assistance for the purchase and distribution of food under limited circumstances to meet the immediate needs of those who do not have access to food as a result of COVID-19, and to protect the public from the spread of the virus.[7]  In the COVID-19 Food Policy, FEMA established indicators that may demonstrate the need for food as an emergency protective measure.[8]  

Here, the Applicant provided meals under the national free and reduced price lunch and breakfast programs to financially eligible school children prior to the onset of the COVID-19 public health emergency and continued providing these meals to eligible students during COVID-19.  The Applicant’s decision to continue to provide meals to eligible school children and expand its program to include families in the community was based on financial need rather than the students’ or families’ inability to physically access food as the Food Policy requires.[9]  Although the Applicant addressed an important community need and incurred associated costs for leased freezers to store the ingredients and meals it provided to school children and families, the Applicant’s additional costs are not eligible for PA, even when directly related to the incident.[10]

 

Conclusion

The Applicant has not demonstrated that it performed eligible emergency protective measures in response to the COVID-19 emergency.  Therefore, this appeal is denied.

 

[1] Many of the schools that closed provided free or reduced-price meals to students through federal programs such as the National School Lunch Program and School Breakfast Program. See 7 C.F.R. § 245.3(a); 85 Fed. Reg. 16050-16051 (Mar. 20, 2020); 84 Fed. Reg. 10295-10296 (Mar. 20, 2019).

[2] FEMA Policy FP-104-010-03, Coronavirus (COVID-19) Pandemic: Purchase and Distribution of Food Eligible for Public Assistance (Apr. 11, 2020) [hereinafter Food Policy]. 

[3] The Food Policy considers populations in need as: (a) those who test positive for COVID-19; (b) high-risk individuals; and (c) other populations based on the direction or guidance of the appropriate public health official.  See Id., at 2-4.

[4] See N.J. Exec. Order No. 107, at 11 (Mar. 21, 2020) [hereinafter EO 107], which provided that the N.J. Secretary of Department of Agriculture, in conjunction with the N.J. Commissioner of the Department of Education “take all necessary actions to ensure that all students eligible for free or reduced meals shall continue to receive the services or supports necessary to meet nutritional needs during closures.”  EO 107 also provided exceptions to the stay-at- home directives, including for obtaining goods or services from essential retail businesses and obtaining takeout food or beverages from restaurants, other dining establishments, or food courts.  See also U.S. Dep’t. of Agric., Questions and Answers: Child Nutrition Program Service During COVID-19 Outbreaks, Q&A-4 (Mar. 6, 2020); Families First Coronavirus Response Act, Pub. L. No. 116-127, §§ 2102, 2201-2203 (Mar. 18, 2020), which allowed waivers of meal pattern requirements and the provision of meals directly to children (not their parents or guardians); it also introduced federal financial assistance for the purchase of food.

[5] Robert T. Stafford Disaster Relief and Emergency Assistance Act §§ 403, 502, Title 42, United States Code (42 U.S.C) §§ 5170b, 5192 (2018); Title 44, Code of Federal Regulations (44 C.F.R.) § 206.225(a) (2019).

[6] 44 C.F.R. §§ 206.223(a)(1), 206.225(a)(3); Public Assistance Program and Policy Guide, FP 104-009-2, at 19, 57 (Apr. 1, 2018) [hereinafter PAPPG].

[7] Food Policy, at 1; PAPPG, at 63.

[8] Food Policy, at 3.

[9] The Food Policy indicators that demonstrate the need for food are: (1) reduced mobility of people in need due to government-imposed restrictions, including “stay-at-home” orders which prevent certain populations from accessing food; (2) marked increase or atypical demand for feeding resources; and (3) disruptions to the typical food supply chain within a given jurisdiction.  Id.

[10] For other possible sources of funding for food distribution, please consider the U.S. Department of Agriculture Disaster Household Distribution Program;the U.S. Department of Treasury Coronavirus Relief Fund; and/or the State and Local Coronavirus Fiscal Recovery Fund.