Immediate Threat

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster4480
ApplicantSeneca Falls Central School District
Appeal TypeSecond
PA ID#099-03A78-00
PW ID#PW 451
Date Signed2022-09-22T16:00:00

Summary Paragraph

During the incident period of January 20, 2020 and continuing, the coronavirus (COVID-19) pandemic resulted in a major disaster declaration for the State of New York.  Seneca Falls Central School District (Applicant) applied for Public Assistance (PA) for the purchase of disinfecting supplies and equipment to assist it to safely operate its school and reduce the COVID-19 threat. 

The Federal Emergency Management Agency (FEMA) issued a Determination Memorandum, awarding $12,843.87 for certain disinfecting supplies and equipment, but denied a portable UV sterilizer ($914.84) and a portable UV air cleaner with a high-efficiency particulate air (HEPA) filter ($357.31).  FEMA concluded the UV equipment was not an eligible emergency protective measure because the Centers for use the Centers for Disease Control and Prevention (CDC)’s guidance stated UV cleaning was not an effective COVID-19 disinfectant measure.  The Applicant submitted a first appeal, seeking reconsideration.  The Applicant claimed the UV equipment was required to provide a safe working environment, support student learning, and reduce the threat of COVID-19.  The New York State Division of Homeland Security and Emergency Services (Grantee) forwarded the Applicant’s appeal to FEMA with its support.  The Grantee asserted that the Applicant’s use of layered approach, including the UV cleaning equipment, was a reasonable protective measure. 

The FEMA Region II Regional Administrator denied the appeal, finding the UV equipment was not an effective disinfecting measure against COVID-19 because the CDC did not recommend its use.  The Applicant submits a second appeal, reiterating prior arguments. 

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 (O&O Policy).
  • FEMA Memorandum on O&O Policy, at 1-2.
  • Lifespire, Inc., FEMA-4480-DR-NY, at 2-3.

Headnotes

  • FEMA may provide assistance to eligible PA applicants for measures implemented to facilitate the safe opening and operation of eligible facilities in response to COVID-19.  Air disinfection may be eligible in limited circumstances in accordance with the O&O Policy under the category of cleaning and disinfection and only in cases where applicants implemented a layered approach.  However, the use of UV for surface disinfection is not eligible.
    • The Applicant’s purchase of a portable UV air cleaner with a HEPA filter is an eligible emergency protective measure undertaken to reduce the spread of COVID-19 infections at school.  The Applicant’s purchase of a UV sterilizer is not an eligible emergency protective measure to reduce the spread of COVID-19.

Conclusion

The Applicant has demonstrated the purchase of a UV air cleaner with a HEPA filter is an eligible emergency protective measure.  However, the Applicant has not shown that the UV sterilizer used for surface disinfection is an eligible emergency protective measure in response to COVID-19.  Therefore, the second appeal is partially granted in the amount of $357.31.

 

Appeal Letter

Rayana Gonzales

Deputy Commissioner for Disaster Recovery Programs                              

Alternate Governor’s Authorized Representative

New York State Division of Homeland Security and Emergency Services                     

1220 Washington Avenue

Building 7A, 4th Floor                                              

Albany, NY 12242                                                                 

 

Re:  Second Appeal – Seneca Falls Central School District, PA ID: 099-03A78-00, FEMA-4480-DR-NY, Project Worksheet 451, Grants Manager Project 157496, Immediate Threat

 

Dear Ms. Gonzales:

This is in response to your letter dated June 27, 2022, which transmitted the referenced second appeal on behalf of Seneca Falls Central School District (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 $1,272.15 for Ultraviolet (UV) equipment.

As explained in the enclosed analysis, I have determined the Applicant has demonstrated the purchase of a UV air cleaner with a HEPA filter is an eligible emergency protective measure.  However, the Applicant has not shown that the UV sterilizer used for surface disinfection is an eligible emergency protective measure in response to COVID-19.  Therefore, the second appeal is partially granted in the amount of $357.31.  By copy of this letter, I am requesting the Regional Administrator to take appropriate action to implement this determination.

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

During the incident period of January 20, 2020 and continuing, the coronavirus (COVID-19) pandemic resulted in a major disaster declaration for the State of New York.  Seneca Falls Central School District (Applicant) applied for Public Assistance (PA) for the purchase of disinfecting supplies and equipment to assist it to safely operate its school and reduce the COVID-19 threat.  The Federal Emergency Management Agency (FEMA) issued a Determination Memorandum, awarding $12,843.87 for certain disinfecting supplies and equipment, but denied funding for a portable Ultraviolet (UV) sterilizer ($914.84) and a portable UV air cleaner with a high-efficiency particulate air (HEPA) filter for use by school nurses ($357.31).[1]  FEMA concluded the purchase of a UV equipment was not an eligible emergency protective measure because the Centers for Disease Control and Prevention (CDC)’s guidance stated UV cleaning was not an effective COVID-19 disinfectant measure. 

First Appeal

On October 18, 2021, the Applicant submitted a first appeal.  The Applicant stated that the denied costs were necessary to provide a safe working environment for employees as well as support student learning and reduce the threat of COVID-19.  The Applicant noted the UV cleaning equipment was required to sanitize the school’s library books as using a spray disinfectant would damage the books.  The New York State Division of Homeland Security and Emergency Services (Grantee) transmitted the appeal to FEMA on December 15, 2021, along with a letter of support.  The Grantee asserted that the Applicant’s use of a multi-layered approach, including the UV cleaning equipment, was a reasonable emergency protective measure given the lack of supply stability and available disinfectants for the Applicant’s library books. 

On March 7, 2022, the FEMA Region II Regional Administrator denied the appeal, finding the UV equipment was not an effective disinfecting measure against COVID-19 because the CDC did not recommend its use.  FEMA also stated that ventilation improvements, including through portable air cleaners, are not among the list of eligible emergency protective measures under FEMA Policy Coronavirus (COVID-19) Pandemic: Safe Opening and Operation Work Eligible for Public Assistance (Interim) (hereinafter O&O Policy).[2] 

Second Appeal

In its second appeal letter, the Applicant reiterates its previously raised arguments.  The Grantee supports the appeal, and notes that FEMA has clarified in recent appeal decisions that air disinfection is eligible under the O&O Policy

 

Discussion

Eligible emergency work includes emergency protective measures that are necessary to save lives and protect public health and safety.[3]  To be eligible for PA, the items of work must be required as a result of the disaster, and the emergency protective measures must eliminate or lessen immediate threats to lives, public health, or safety.[4]  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.[5]  Air disinfection may be eligible in limited circumstances in accordance with the O&O Policy under the category of cleaning and disinfection.[6]  FEMA may only fund air disinfection (including HEPA filters) in cases where applicants implemented a layered approach, and where the measure is consistent with guidance applicable at the time from public health officials or the CDC as it relates to disinfection.[7]  However, FEMA has emphasized that the CDC does not recommend the use of Ultraviolet Germicidal Irradiation (UVGI) for surface disinfection.[8]   

Here, the Applicant seeks PA funding for a UV air cleaner with a HEPA air filter for use by school nurses and a UV sterilizer used for surface disinfection.  The Applicant demonstrated that it implemented a layered approach, providing personal protective equipment, including masks, for its employees and students, disinfecting surfaces frequently and using hand sanitizer for hand hygiene.[9]  Ventilation interventions, including adding HEPA fan/filter systems, can help reduce the number of infectious viral particles (including SARS-CoV-2) in the air, and the CDC recommends the use of HEPA air filters as an air cleaning measure in schools, particularly in high-risk areas such as school nurses’ offices and sick/isolation rooms.  Accordingly, FEMA finds that the Applicant’s purchase of a UV air cleaner with a HEPA filter for use by school nurses is an eligible emergency protective measure.  However, the use of UV technology for surface disinfection has not been shown to be effective, and the CDC does not recommend UV technology for surface disinfection;[10] accordingly, the costs associated with the UV sterilizer for surface disinfection are not eligible. 

 

Conclusion

The Applicant has demonstrated the purchase of a UV air cleaner with a HEPA filter is an eligible emergency protective measure.  However, the Applicant has not shown that the UV sterilizer used for surface disinfection is an eligible emergency protective measure in response to COVID-19.  Therefore, the second appeal is partially granted in the amount of $357.31.

 

 

[1] The Applicant submitted an invoice for the portable UV air cleaner.  The product associated with the manufacturer’s number for the air cleaner listed on the invoice is a portable UV air cleaner using a HEPA filter

[2] FEMA Policy 104-21-0003, Coronavirus (COVID-19) Pandemic: Safe Opening and Operation Work Eligible for Public Assistance (Interim) (Version 2) (Sept. 8, 2021) [hereinafter O&O Policy].  See First Appeal Analysis, Seneca Falls Cent. School Dist., FEMA-4480-DR-NY, at 2 (Mar. 7, 2022) (“With regard to the portable air cleaner, ventilation improvements, to include supplemental treatment for air cleaning, is not among the list of eligible EPMs in FEMA’s O&O Policy.  While the O&O Policy does allow for reimbursement of cleaning and disinfecting costs, ventilation is distinctly different as supported by CDC publishing separate guidance for cleaning and disinfection and for ventilation.”).  

[3] 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). 

[4] 44 C.F.R. §§ 206.223(a)(1), 206.225(a)(3)(i); Public Assistance Program and Policy Guide, FP 104-009-2, at 57

 (Apr. 1, 2018).

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

[6] 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]; O&O Policy, at 4-5.

[7] O&O Policy, at 4-5; Air Disinfection Memorandum, at 1 (noting that a layered approach may include use of masks in a consistent and correct manner, physical distancing of at least 6 feet, frequently cleaning and disinfecting surfaces, hand hygiene with regular hand washing with soap and water or using alcohol-based hand sanitizer, or vaccination.).  See also Env’t Prot. Agency (EPA), Air Cleaners, HVAC Filters, and Coronavirus (COVID-19),  https//www.epa.gov/coronavirus/air-cleaner-hvac-filters-coronovirus (last visited July 28, 2022), in which the EPA advises that, when air filtration is used along with other best practices recommended by CDC and other public health agencies, including social distancing and mask wearing, air filtration can be part of a plan to reduce the potential for airborne transmission of COVID-19 indoors. See CDC, Ventilation in Schools and Childcare Programs,  https://www.cdc.gov/coronavirus/2019-ncov/community/schools-childcare/ventilation.html (updated Feb. 26, 2021, last visited Aug. 3, 2022), in which the CDC recommends use of portable HEPA filtration units as an effective measure to enhance air cleaning wherever possible, particularly in higher-risk areas such as nurse’s offices or sick/isolation rooms.  See also FEMA Second Appeal Analysis, Lifespire Inc., FEMA-4480-DR-NY, at 2-3 (July 9, 2022).

[8] Air Disinfection Memorandum, at 1.

[9]  FEMA awarded $12,843.87 for disinfecting supplies and equipment, including hand sanitizer, disinfecting wipes, disinfecting cleaner, and an electrostatic disinfecting sprayer.  See FEMA Determination Memorandum, Seneca Falls Cent. School Dist., FEMA-4480-DR-NY, Grants Manager Project 157496 (Aug. 27, 2021).  It appears that the Applicant may have also implemented the use of masks, as demonstrated by its other project pending review, in which the Applicant requested Public Assistance funding in the amount of $17,373.15 for Personal Protective Equipment supplies and materials to sanitize spaces. See Grants Manager Project 157164/Project Worksheet 828, Seneca Falls Cent. School Dist., Version 0 (Jan. 11, 2021).

[10] Air Disinfection Memorandum, at 1.

Last updated September 28, 2022