Immediate Threat

Appeal Brief

Appeal Letter

Appeal Analysis

Background

The coronavirus (COVID-19) pandemic resulted in a major disaster declaration for the state of Illinois on March 26, 2020, with an incident period beginning January 20, 2020, and ending on May 11, 2023. The Good Samaritan House of Granite City (Applicant), a Private Nonprofit that provides shelter for unhoused women and children, requested Public Assistance (PA) funding for the future purchase and installation of Ultraviolet Germicidal Irradiation (UVGI) units to mitigate the spread of COVID-19. FEMA prepared Grants Manager Project 549660 to document the Applicant’s request with a cost estimate of $61,820.00. On December 28, 2021, FEMA issued a Determination Memorandum denying the Applicant’s request, finding that the Applicant did not establish that the work was related to eligible emergency protective measures. 

First Appeal 

The Applicant appealed FEMA’s denial in a letter dated February 26, 2022. The Applicant asserted that the UVGI units were eligible as cleaning and disinfection under FEMA’s COVID-19 policies,[1] and complied with Centers for Disease Control and Prevention (CDC) recommendations. The Illinois Emergency Management Agency (Recipient) transmitted the Applicant’s appeal to FEMA on March 9, 2022, with its recommendation for approval.

FEMA issued a Request for Information to the Applicant on November 9, 2022, requesting: the dates when the UVGI units were purchased, or justification why the measure had not yet been completed and when the work was expected to begin; cost documentation; documentation demonstrating that the Applicant’s facilities qualify as higher risk areas; documentation demonstrating a cost or price analysis was completed to determine whether the costs were fair and reasonable; and documentation demonstrating all mitigation strategies required and enforced in the Applicant’s facilities to prevent the spread of COVID-19. The Applicant responded on January 16, 2022, stating that it planned to purchase the UVGI units as soon as possible, and that it had not started work because, among other reasons, it was conducting research on different mitigation measures.

On March 27, 2023, the FEMA Region V Regional Administrator denied the first appeal. FEMA found that the Applicant had not demonstrated that the proposed work was necessary to respond to the declared disaster, or that the work was necessary to address an immediate threat. FEMA explained that the Applicant demonstrated a lack of urgency as it had not begun the work and only provided future plans to install the UVGI units.

Second Appeal

The Applicant filed a second appeal dated May 26, 2023. The Applicant argues that the costs are allowable under Title 2 of the Code of Federal Regulations § 200.403(c), as the Applicant has consistent policies and procedures that apply uniformly whether the project is federally financed or not. The Applicant also points to a Presidential Memorandum,[2] which the Applicant argues was meant to allow entities such as the Applicant to continue to operate. The Applicant states it was unable to install the UVGI units without PA funding, and that the Presidential Memorandum provides for expedited reimbursements for eligible work projects. The Applicant argues that, per its policy, it cannot incur a debt, and therefore, cannot take on this project until it has secured funding. The Applicant argues that, in line with FEMA’s policy, it implemented a variety of policies to mitigate COVID-19, including masking and physical distancing. The Applicant also provides a cost analysis to demonstrate that the UVGI units are the most cost-effective solution. The Recipient forwarded the Applicant’s appeal, with its support, on July 24, 2023.

Discussion

FEMA is authorized to provide assistance for emergency protective measures to save lives and protect public health and safety.[3] 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.[4]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.[5] 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).[6] FEMA may only fund air disinfection in cases where applicants implemented a layered approach.[7] FEMA considers the urgency with which the applicant proceeds with work when evaluating the eligibility of emergency work.[8]

The regulatory deadline for the completion of emergency work is typically six months from the declaration date, with provisions for extensions.[9] The unprecedented nature of COVID-19 events and the impacts of the pandemic necessitated emergency protective measures to continue beyond six months.[10] FEMA issued a memorandum on February 10, 2023, that established the final PA emergency work completion deadline as May 11, 2023.[11] FEMA policy applicable to COVID-19 does not provide for time extensions to this deadline.[12]

The Applicant asserts that the future purchase and installation of UVGI units is an eligible emergency protective measure and meets both FEMA requirements and CDC recommendations. However, the fact the work had not yet started at the time of the second appeal, three years after the start of the pandemic, does not support the requirement that the work is necessary as an emergency protective measure to address an immediate threat resulting from COVID-19. FEMA finds, therefore, that the UVGI work is not eligible emergency work.[13] In addition, the deadline to complete emergency work for COVID-19 (with certain exceptions that are not applicable here), expired on May 11, 2023. Therefore, the Applicant is past the period of performance for COVID-19 and the requested UVGI units are ineligible for this basis as well.

Conclusion

FEMA finds that the Applicant did not demonstrate that the UVGI units are an eligible emergency protective measure in response to COVID-19. In addition, the applicable work completion deadline has expired. Therefore, this appeal is denied.