Immediate Threat

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4490
Applicant	Grandview R-2 School District
Appeal Type	Second
PA ID#	099-003CB-00
PW ID#	GMP 662521
Date Signed	2023-03-13T16:00:00

Summary Paragraph

The coronavirus (COVID-19) pandemic resulted in a major disaster declaration for Missouri on March 26, 2020. Grandview R-2 School District (Applicant) requested Public Assistance (PA) for 680 ultraviolet germicidal irradiation (UVGI) units for use in its schools. FEMA prepared Grants Manager Project 662521 to document the Applicant’s request with a total cost estimate of $1,244,116.00. On March 21, 2022, FEMA denied the request, finding that the work was not an eligible emergency protective measure and represented ineligible increased operating costs. The Applicant submitted an April 27, 2022 dated first appeal, asserting that UVGI technology is supported by the federal government as a method of saving lives and protecting public health and safety against COVID-19. On October 31, 2022, the FEMA Region 7 Regional Administrator denied the appeal, finding that the Applicant did not intend to perform the work until receiving PA funding, thus it was not pursuing emergency policies uniformly in federally funded and non-federally funded situations. Further, the Applicant did not demonstrate that the work was a reasonable and necessary response to the threat posed by COVID-19, and the work did not satisfy PA eligibility requirements for UVGI air disinfection. On January 1, 2023, the Applicant submitted a second appeal, contesting FEMA’s first appeal findings and asserting, among other things, that the work is reasonable, necessary, and complies with PA eligibility requirements. The Missouri State Emergency Management Agency transmitted the appeal to FEMA, recommending that FEMA uphold its determination of ineligibility.

Authorities and Second Appeals

• Stafford Act § 403.
• 2 C.F.R. § 200.403.
• 44 C.F.R. §§ 206.223(a)(1), 206.225(a).
• PAPPG, at 19, 21-22, 43, 57.
• O&O Policy, at 4-5; Air Disinfection Memorandum, at 1-2.
• Seneca Falls Central School District, FEMA-4480-DR-NY, at 3; PR Aqueduct and Sewer Authority, FEMA-4339-DR-PR, 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, and, for COVID-19 declarations, done in accordance with applicable FEMA policy, and CDC guidance or that of an appropriate Public Health official available at the time the work was completed.
  • The Applicant did not demonstrate that its existing COVID-19 mitigation measures are inadequate to meet the current threat of the virus. FEMA finds that the UVGI work, having not yet started nearly three years into the pandemic, is not eligible emergency work required to address an immediate threat resulting from the declared incident.

Conclusion

FEMA finds that the Applicant did not demonstrate that the UVGI units are 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 Missouri on March 26, 2020, with an incident period of January 20, 2020 to May 11, 2023. On March 4, 2022, the Grandview R-2 School District (Applicant) submitted a Streamlined Project Application requesting Public Assistance (PA) funding for the purchase and installation of 680 ultraviolet germicidal irradiation (UVGI) units for use in its elementary, middle, and high schools. FEMA prepared Grants Manager Project 662521 to document the Applicant’s request with a total cost estimate of $1,244,116.00.

On March 21, 2022, FEMA issued a Determination Memorandum denying the Applicant’s request, finding that the work was not an eligible emergency protective measure and represented ineligible increased operating costs of continuing to provide services in a COVID-19 environment. FEMA explained that such technology, along with any other improvements to building ventilation, was not listed as an eligible emergency protective measure under applicable FEMA policies and COVID-19 specific PA guidance.

First Appeal

The Applicant submitted a first appeal dated April 27, 2022, asserting that UVGI is supported by multiple federal agencies and the Presidential administration as a method of saving lives and protecting public health and safety against COVID-19. The Applicant provided an email from a Centers for Disease Control and Prevention (CDC) representative stating that the CDC supports the use of UVGI for supplemental air cleaning, adding that it recommends a layered approach using multiple tools to increase overall effectiveness of ventilation interventions. The Missouri State Emergency Management Agency (Recipient) transmitted the first appeal to FEMA, recommending that FEMA uphold its determination of ineligibility because the work did not appear to meet eligibility criteria for emergency protective measures.

On June 2, 2022, FEMA issued a Request for Information (RFI), stating that the record did not contain sufficient documentation regarding how UVGI would be an authorized measure under FEMA policy and how it would be a reasonable, necessary, and cost-effective measure in compliance with CDC guidance as part of a layered approach to address COVID-19. Therefore, FEMA requested documentation to that effect and asked whether the Applicant had begun the work.

On June 27, 2022, the Applicant responded, stating that the work had not started due to funding availability in its school district, but the work would commence upon approval of PA funding. The Applicant provided a cost comparison to demonstrate that UVGI was the most cost-effective measure for air quality improvement, stated that its schools qualify as a CDC-outlined high-risk area for concentration of COVID-19 virus, and described other measures that it implemented to mitigate the risk from COVID-19.

On July 12, 2022, FEMA sent the Applicant a supplemental RFI after the issuance of a new FEMA policy regarding the eligibility of UVGI disinfection measures (Air Disinfection Memorandum).[1] FEMA requested information regarding specific preventive measures the Applicant implemented, as well as how the requested work complied with CDC recommendation criteria set forth in the Air Disinfection Memorandum. On August 22, 2022, the Applicant replied, providing the COVID-19 preventive measures it implemented and asserting that it met CDC parameters for UVGI. The Applicant also provided its 2022-2023 return to school plan describing safety measures and precautions.[2]

On ­October 31, 2022, the FEMA Region 7 Regional Administrator denied the appeal, finding that the Applicant did not intend to perform the work until receiving PA funding, thus it was not pursuing emergency work uniformly in federally funded and non-federally funded situations as required by federal regulation.[3] Further, FEMA stated the Applicant did not demonstrate that the work was a reasonable and necessary response to the threat posed by COVID-19. FEMA added that the schools had been open and fully in-person since January 2022, and the Applicant did not demonstrate that the measures it was using to protect against COVID-19 were inadequate to address current threats. Although FEMA noted that the Applicant demonstrated it employed layered measures for masking, cleaning and disinfecting, and distancing, FEMA concluded the UVGI work did not satisfy PA eligibility requirements for UVGI air disinfection because the planned installation of UVGI units was not targeted at the specific types of areas recommended by the CDC, such as the nurse’s office or cafeteria, where potential transmission is more likely, but instead extended building-wide.

Second Appeal

On January 1, 2023, the Applicant submitted a second appeal, contesting FEMA’s first appeal findings. The Applicant explains that, as a public entity, it cannot spend funds for any purpose until funding is available, regardless of the source. The Applicant argued that since FEMA issued the Air Disinfection Memorandum, explaining how UVGI may qualify as an emergency protective measure, it should be eligible here. The Applicant asserts that the work is reasonable, necessary, and cost-effective, and that it complied with PA eligibility requirements for UVGI air disinfection. The Applicant adds that it has been attempting to find project funding since March 2022, to demonstrate urgency, and that it has pursued alternative funding sources.

The Applicant lists the preventive measures it took in response to COVID-19, such as masking and physical distancing, asserts that its schools are eligible for UVGI per the CDC’s recommended parameters, and states that UVGI is the only mitigation option available to adequately reduce the risk of COVID-19 transmission. The Applicant provides a cost comparison of other solutions, asserting that the work is cost-effective.

On January 4, 2023, the Recipient transmitted the appeal to FEMA, recommending that FEMA uphold its determination of ineligibility. The Recipient explains that the Applicant’s second appeal does not satisfy statutory language defining emergency work. The Recipient adds that the Applicant has continued in-school operations despite the absence of UVGI units, so the work could not satisfy the definition of emergency work as work that must be done immediately.

 

Discussion

FEMA is authorized to provide assistance for emergency protective measures to save lives and protect public health and safety.[4] 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.[5] Eligible work includes cleaning and disinfection in accordance with applicable FEMA policy, and CDC guidance or that of an appropriate Public Health official available at the time the work was completed.[6] Air disinfection may be eligible in limited circumstances in accordance with FEMA Policy Coronavirus (COVID-19) Pandemic: Safe Opening and Operation Work Eligible for Public Assistance (Interim) (Version 2).[7] FEMA may only fund air disinfection in cases where applicants implemented a layered approach.[8] FEMA may approve UVGI specifically as an air disinfection method, if it was installed based on CDC recommendations.[9] These CDC recommendations are generally limited to installation in certain areas that include: (1) areas with an increased likelihood of sick people (for example, a school nurse’s office); and (2) spaces where people must take off masks to eat or drink (for example, school cafeterias).[10]

FEMA considers the urgency with which the applicant proceeds with work when evaluating the eligibility of emergency work.^[11] Costs must be consistent with the applicant’s internal policies and procedures, and apply uniformly to both federally-financed and other activities of the applicant.^[12]

Here, the Applicant has demonstrated that it employed layered measures for masking, cleaning and disinfecting, and distancing.^[13] Additionally, part of its request, UVGI units for its school nurse’s office and cafeteria, align with CDC recommendation for UVGI in high-risk indoor settings.^[14]

Nevertheless, the Applicant’s request for $1,244,116.00 in PA for the purchase and installation of UVGI units does not meet PA eligibility requirements. The Applicant previously acknowledged in its June 27, 2022 RFI response it does not intend to perform the work until receiving PA funding, thus it is not pursuing emergency policies consistently in federally funded and non-federally funded situations. Further, the delay in beginning work on the project does not support the requirement that work is necessary as an emergency protective measure to address an immediate threat caused by the disaster.[15] FEMA finds that the UVGI work, having not yet started approximately three years into the pandemic, is not eligible emergency work required to address an immediate threat resulting from the declared incident.

 

Conclusion

FEMA finds that the Applicant did not demonstrate that the UVGI units are an eligible emergency protective measure in response to COVID-19. Therefore, this appeal is denied.

 

 

[1] Memorandum from Assistant Adm’r, FEMA Recovery Directorate, to Reg’l Adm’rs, FEMA Regions 1-10, Air Disinfection Eligibility Under FEMA’s Coronavirus (COVID-19) Pandemic: Safe Opening and Operation Work Eligible for Public Assistance (Interim) Policy (June 13, 2022) [hereinafter Air Disinfection Memorandum].

[2] 2022-2023 Grandview R-11 COVID-19 Plan, Safe Return to In-Person Instruction and Continuity of Services Plan, (Updated March, 2022) [hereinafter Reopening Plan].

[3] See generally, Title 2 Code of Federal Regulations (2 C.F.R.) § 200.403(c) (2020).

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

[5] 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) [hereinafter PAPPG].

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

[7] Air Disinfection Memorandum, at 1.

[8] Id. at 2.

[9] Id.

[10] Id.

[11] PAPPG, at 43.

[12] 2 C.F.R. § 200.403; PAPPG, at 21-22.

[13] See Reopening Plan, at 3-5.

[14] See FEMA Second Appeal Analysis Seneca Falls Central School District, FEMA-4480-DR-NY, at 3 (Sept. 22, 2022), (approving $357.31 for a portable ultraviolet  air cleaner with a high efficiency particulate air filter for use by school nurses).

[15] FEMA Second Appeal Analysis PR Aqueduct and Sewer Authority, FEMA-4339-DR-PR, at 3-4 (Apr. 16, 2021).