Immediate Threat

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4480
Applicant	Wyoming County
Appeal Type	Second
PA ID#	121-99121-00
PW ID#	GMP 143885
Date Signed	2022-08-17T16:00:00

Summary Paragraph

The Applicant requested reimbursement under the PA program for costs associated with labor, improvised personal protective equipment (PPE), ventilators, information technology (IT) equipment, and other materials, including ultraviolet (UV) disinfection equipment.  FEMA issued a Determination Memorandum, partially approving funds.  FEMA denied funding for the purchase of PPE, IT equipment, materials, and the UV disinfecting equipment.  FEMA asserted that the claimed costs for the UV disinfecting equipment were ineligible for funding because the Centers for Disease Control and Prevention (CDC) does not recommend UV lights or radiation products as effective in preventing the spread of COVID-19.  The Applicant appealed the denied costs.  The New York State Division of Homeland Security and Emergency Services (Recipient) transmitted the Applicant’s appeal to FEMA with its support.  The FEMA Region II Regional Administrator partially granted the appeal.  FEMA determined that the Applicant substantiated its claim for improvised PPE and ventilators.  However, FEMA found that the UV disinfection equipment was not an eligible emergency protective measure.  The Applicant submits its second appeal, reiterating previously raised arguments and states that FEMA incorrectly characterized the equipment as ventilation improvements and incorrectly interpreted CDC guidance.  The Recipient forwarded the Applicant’s second appeal to FEMA with its support.

Authorities and Second Appeals

• Stafford Act § 403.
• 44 C.F.R. §§ 206.223, 206.225.
• PAPPG, at 19, 57, 63.
• FP 104-21-0003, at 4-5.
• Air Disinfection Memorandum, at 1-2
• University of Texas MD Anderson Cancer Center, FEMA-4485-DR-TX, at 2-3.

Headnotes

• FEMA may provide assistance to eligible PA applicants for measures implemented to reduce immediate threats to public health and safety, as well as certain measures to facilitate the safe opening and operation of eligible facilities in response to COVID-19 declarations, which may include cleaning and disinfection, including the purchase and provision of necessary supplies and equipment in excess of an Applicant’s regularly budgeted costs.  However, UV technology for surface disinfection is not eligible for funding.   
  • The Applicant’s purchase of UV equipment for surface disinfection is ineligible as an emergency protective measure against the spread of COVID-19.

Conclusion

FEMA finds that the Applicant did not demonstrate that the UV equipment for surface disinfection was associated with an eligible emergency protective measure in response to COVID-19.

Appeal Letter

Appeal Analysis

Background

The Coronavirus (COVID-19) pandemic resulted in a major disaster declaration for the State of New York on March 20, 2020 and continuing.  Wyoming County (Applicant) requested reimbursement under the Federal Emergency Management Agency’s (FEMA) Public Assistance (PA) program for costs associated with labor, improvised personal protective equipment (PPE), ventilators, information technology (IT) equipment, and other materials, including ultraviolet (UV) disinfection equipment for the county hospital and nursing homes.  The Applicant stated that it acquired this UV technology for disinfection of its facilities to save lives by preventing the spread of COVID-19.

On September 24, 2021, FEMA issued a Determination Memorandum, partially approving funds for overtime labor.  However, FEMA denied the request for PPE, IT equipment, materials and the UV disinfecting equipment.  FEMA found that the UV disinfection costs were ineligible for funding because the Centers for Disease Control and Prevention (CDC) did not recommend UV lights for disinfection as effective in preventing the spread of COVID-19.  Therefore, FEMA found that the work performed did not meet the emergency work criteria of eliminating or lessening an immediate threat to life, public health, or safety.  Furthermore, FEMA explained the Applicant did not demonstrate that it was cost-effective.

First Appeal  

On September 24, 2021, the Applicant appealed the denied costs for improvised PPE, ventilators, and the UV disinfecting equipment.  The Applicant maintained that these costs were for eligible emergency protective measures to protect public health from the ongoing declared emergency.  The Applicant explained that the purchased UV equipment disinfects similarly to the Upper Room UV Germicidal Irradiation (UVGI) included in the CDC’s UVGI guidance.[1]  On

November 22, 2021, the New York State Division of Homeland Security and Emergency Services (Recipient) transmitted the Applicant’s appeal to FEMA with its support.

On February 9, 2022, the FEMA Region II Regional Administrator partially granted the appeal.  FEMA determined that the Applicant substantiated its claim that the purchases of improvised PPE and ventilators were eligible emergency protective measures.  However, FEMA found that the $93,250.00 cost of the UV disinfection equipment was ineligible for PA funding.  FEMA stated that while FEMA Policy, Coronavirus (COVID-19) Pandemic: Safe Opening and Operation Work Eligible for Public Assistance (O&O Policy) does allow for reimbursement of cleaning and disinfecting costs, ventilation is distinctly different and not supported by CDC guidance.[2] 

Second Appeal

On March 31, 2022, the Applicant appealed FEMA’s denial of costs for UV disinfection equipment.  The Applicant reiterates its first appeal arguments and states that FEMA incorrectly characterized the equipment as ventilation improvements when the device is a “mobile piece of disinfecting equipment with the express purpose of disinfecting hospital rooms.”[3]  The Applicant also claims FEMA incorrectly interpreted the CDC guidance as not including UV as an effective means of viral elimination and cites a study funded by the CDC stating the device purchased by the Applicant reduced pathogen contamination.[4]  On May 24, 2022, the Recipient forwarded the Applicant’s second appeal to FEMA with its support.

 

Discussion

FEMA is authorized to provide assistance for 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, including immediate threats to lives, public health, or safety.[6]  In response to COVID-19 declarations, FEMA may provide assistance to all eligible PA applicants for measures implemented to facilitate the safe opening and operation of all eligible facilities, including cleaning and disinfection and the purchase and provision of necessary supplies and equipment in excess of the Applicant’s regularly budgeted costs.[7]  Air disinfection may be eligible in limited circumstances in accordance with the O&O Policy under the category of cleaning and disinfection.[8]  However, UV technology for surface disinfection is not eligible for PA funding.[9]

The Applicant is requesting reimbursement for costs associated with its purchase of UV equipment for surface disinfection to clean susceptible areas as a COVID-19 transmission preventative measure.  The Applicant’s equipment emits UV radiation through a no-touch device (NTD) to disinfect pre-cleaned surfaces in unoccupied areas to supplement its surface disinfection.[10]  Although the CDC provides guidelines to healthcare settings regarding the use of UV germicidal irradiation as supplementary disinfection and the distinction between air and surface disinfection, the CDC does not recommend UV technology for surface disinfection.[11]  The CDC has also stated that the effectiveness of NTD disinfection systems, such as the one acquired by the Applicant, is still under investigation and cannot replace existing conventional cleaning and disinfection processes.  As a result, UV equipment for surfaces disinfection is not a recommended method of disinfection and is not considered an eligible emergency protective measure.

 

Conclusion

FEMA finds that the Applicant did not demonstrate that the UV equipment for surface disinfection was associated with an eligible emergency protective measure in response to COVID-19.  Therefore, this appeal is denied.

 

[1] Centers for Disease Control and Prevention, Upper-Room Ultraviolet Germicidal Irradiation (UVGI), https://www.cdc.gov/coronavirus/2019-ncov/community/ventilation/uvgi.html (last visited Aug. 12, 2022).

[2] FEMA First Appeal Analysis, Wymong Cnty., FEMA-4480-DR-NY, at 3 (Feb. 9, 2022).

[3] Letter from the Budget Officer, Off. of the Budget for Wyoming Cnty., to NY State Div. of Homeland Sec. and Emergency Services, at 1 (Mar. 31, 2022).

[4] Id. at 2.

[5] 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). 

[6] 44 C.F.R. §§ 206.223(a)(1), 206.225(a)(3)(i); Public Assistance Program and Policy Guide, FP 104-009-2, at 19, 57 (Apr. 1, 2018); FEMA Policy 104-21-0003, Coronavirus (COVID-19) Pandemic: Safe Opening and Operation Work Eligible for Public Assistance (Interim) (Version 2), at 4 (Sept. 8, 2021) [hereinafter O&O Policy].

[7] O&O Policy, at 4-5.

[8] Memorandum from Assistant Adm’r, FEMA Recovery Directorate, to Reg’l Adm’rs, FEMA Regions I-X, Air Disinfection Eligibility Under FEMA’s Coronavirus (COVID-19) Pandemic: Safe Opening and Operation Work Eligible for Public Assistance (Interim) Policy, at 1 (June 13, 2022) [hereinafter Air Disinfection Memorandum].

[9] See FEMA Second Appeal Analysis, University of Texas MD Anderson Cancer Center, FEMA-4485-DR-TX, at 2-3 (Aug. 5, 2022); see also Air Disinfection Memorandum, at 1.  

[10] Centers for Disease Control and Prevention, Clinical Questions about COVID-19: Questions and Answers, Cleaning and Disinfection of Environmental Surfaces-What are no-touch devices or NTDs?  https://www.cdc.gov/coronavirus/2019-ncov/hcp/faq.html (last visited Aug. 12, 2022).  The devices are called no-touch devices (NTD) because they use a pre-determined program that allows the device to run unmanned in an unoccupied, pre-cleaned room (e.g., patient room) for a defined period.

[11] Air Disinfection Memorandum, at 1.