Immediate Threat

Appeal Brief

Summary Paragraph

The COVID-19 pandemic resulted in a major disaster declaration for the State of Texas with an incident period of January 20, 2020 to May 11, 2023. The Birdville Independent School District (Applicant) submitted a request for Public Assistance (PA) claiming costs for contracted building security services and Kaivac cleaning systems. FEMA created Grants Manager Project 676780 to document the Applicant’s claim, but determined that the costs requested were increased operating costs. FEMA denied funding for the project. The Applicant submitted a first appeal requesting $102,092.79 for the Kaivac systems. It asserted that the Kaivac systems were needed to safely open and operate its school campus facilities and reduce the spread of COVID-19. FEMA determined that the Applicant had not demonstrated that the use of the Kaivac systems was necessary or reasonable for disinfection and that the costs claimed were increased operating costs. FEMA denied the appeal. The Applicant submitted a second appeal, asserting that the purchase of Kaivac systems exceeded its regularly budgeted costs and was necessary to meet increased sanitization requirements during the COVID-19 pandemic.

Authorities and Second Appeals

• Stafford Act § 403(a)(3).
• 2 C.F.R. §§ 200.403(a), 200.404.
• 44 C.F.R. §§ 206.223(a)(1), 206.225(a).
• PAPPG, at 57.
• O&O Policy, at 3-5.

Headnotes

• 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. In considering the allowability of costs, FEMA will evaluate whether the cost was necessary and reasonable to respond to the COVID-19 pandemic.
  • Information provided with the appeal demonstrates that the Applicant used the Kaivac systems in to increase the frequency with which it cleaned and disinfected facility restrooms, in accordance with Centers for Disease Control guidance, and that the associated costs exceeded its budget for custodial supplies.
  • The Applicant purchased the Kaivac systems early in the pandemic, having expended its pre-pandemic budget. It incorporated the Kaivac systems into a larger plan for cleaning and disinfecting its facilities. Given the circumstances, the costs for the Kaivac systems were a reasonable and necessary response to the pandemic.

Conclusion

The Applicant has demonstrated that the use of the Kaivac systems was associated with an eligible emergency protective measure taken in response to the COVID-19 pandemic, and that costs totaling $102,092.79 for the purchase of the Kaivac systems were reasonable and necessary. Therefore, this appeal is granted.

Appeal Letter

Appeal Analysis

Background

The coronavirus (COVID-19) pandemic resulted in a major disaster declaration for the State of Texas with an incident period of January 20, 2020 to May 11, 2023.[1] The Birdville Independent School District (Applicant) submitted a request for Public Assistance (PA) funding, stating it implemented emergency protective measures in response to the pandemic. Among other things, the Applicant claimed costs totaling $127,672.40 for contracted security services at its school facilities and 31 Kaivac cleaning systems (Kaivac systems).[2] In a streamlined project application, the Applicant stated that it contracted with a 24-hour security service for “monitoring, security, and maintenance needs due to facility closures” and purchased the Kaivac systems to clean and disinfect its school facilities.[3] FEMA created Grants Manager Project 676780 to document the Applicant’s claim but denied funding for the project in a Determination Memorandum dated September 7, 2022. FEMA determined that the costs claimed were increased operating costs and were thus ineligible for PA funding.

First Appeal

On October 11, 2022, the Applicant submitted a first appeal of FEMA’s denial of $102,092.79 for the Kaivac systems.[4] It asserted that the Kaivac systems were needed for sanitizing requirements to open and operate its school facilities and reduce the spread of COVID-19. In support, the Applicant provided a manufacturer’s brochure describing the Kaivac systems and their use. In a transmittal letter dated October 31, 2022, the Texas Division of Emergency Management (Recipient) expressed support for the appeal.

On January 17, 2023, the FEMA Region 6 Regional Administrator denied the appeal.[5] Noting that its authority to provide PA funding was discretionary, FEMA stated that the use of Kaivac systems was “above and beyond what is necessary and reasonable for disinfection.”[6] It found that the Applicant “failed to demonstrate how the cleaning machines provided better sanitizing than regular cleaning and disinfection methods” recommended by the Centers for Disease Control and Prevention (CDC).[7] Further, FEMA determined that the use of the Kaivac systems represented “the same work that would have been performed by the [Applicant] prior to the COVID-19 pandemic.”[8] Therefore, it found that the costs were increased operating costs and were not eligible as emergency protective measures.

Second Appeal

In a letter dated March 23, 2023, the Applicant submitted a second appeal. It asserts that the purchase of the Kaivac systems exceeded its regularly budgeted costs and was necessary to meet increased sanitization requirements needed to mitigate the immediate threat to public health and safety presented by the COVID-19 pandemic. In support, the Applicant provides cleaning schedules both before and during the pandemic. It asserts that “with the addition of Kaivac machines … cleaning requirements could be met three times per day.”[9] In a transmittal letter dated April 20, 2023, the Recipient expressed support for the appeal.

FEMA issued a Request for Information (RFI) on July 10, 2023, requesting the Applicant provide the number of school facilities serviced by the Kaivac systems, the dates the facilities were closed, and the dates the Applicant used the Kaivac systems to clean and disinfect the facilities. Additionally, FEMA requested documentation demonstrating the Applicant’s budget for school facility cleaning and disinfection prior to and during the pandemic. In a response dated July 26, 2023, the Applicant stated that 40 school facilities were serviced between June 12, 2020, and June 30, 2021. It stated that the school facilities were closed from March 9 to July 27, 2020, to administrative staff, and from March 9 to August 24, 2020, to “campus staff and students.”[10] The Applicant provided spreadsheets showing its facilities maintenance budget and expenses, including a summary comparing expenses before and during the pandemic.[11]

Discussion

FEMA is authorized to provide assistance for emergency protective measures to save lives and protect public health and safety.[12] 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.[13] In response to COVID-19 declarations, FEMA may provide assistance for measures implemented to facilitate the safe opening and operation of all eligible facilities.[14] This includes cleaning and disinfection, including the purchase or provision of necessary supplies and equipment in excess of an applicant’s regularly scheduled budgeted costs.[15] All work must be done in accordance with CDC guidance or that of an appropriate public health official available at the time the work was completed.[16]

Additionally, to be eligible, claimed costs must be allowable under Title 2 of the Code of Federal Regulations Part 200.[17] In considering the allowability of costs, FEMA will evaluate whether the cost was necessary and reasonable to respond to the COVID-19 pandemic, among other factors.[18] A cost is considered reasonable if, in its nature and amount, it does not exceed that which would be incurred by a prudent person under the circumstances prevailing at the time the decision was made to incur the cost.[19]

The Applicant requests $102,092.79 for the purchase of 31 Kaivac systems. It asserts that the Kaivac systems were necessary to meet increased sanitation requirements during the pandemic. In support, the Applicant provides facility cleaning schedules, budget information associated with school facility maintenance, a manufacturer’s brochure, purchase orders, and invoices.

A budget and expense summary document that the Applicant submitted on second appeal with its response to the RFI depicts its pre-pandemic, planned budget for facilities maintenance line-items such as “custodial supplies,” “antibacterial hygiene supplies,” and “custodial equipment.”[20] The document demonstrates that the Applicant’s pre-pandemic budget for the custodial supplies line-item was $29,196.00, and that its actual expenses exceeded that budgeted amount prior to March 8, 2020. The Applicant subsequently ordered the Kaivac systems, in May and June 2020,[21] and accounted for extra costs totaling $102,092.79 under a separate custodial supplies line-item.[22] Thus, the Applicant’s budget and expense information shows that the cost of the Kaivac systems exceeded the Applicant’s regularly scheduled budgeted costs.

The CDC issued guidance on cleaning and disinfecting community facilities, including schools, in March 2020. The CDC stated that “[c]leaning staff should clean and disinfect all areas (e.g., offices, bathrooms, and common areas) used by the ill persons, focusing especially on frequently touched surfaces,” and recommended the use of disinfectants registered with the Environmental Protection Agency (EPA).[23] In similar guidance issued in May 2020, the CDC recommended employers “[p]ractice routine cleaning of frequently touched surfaces” irrespective of exposure to persons with COVID-19, and again recommended disinfecting with EPA-registered disinfectants.[24] Here, the Applicant followed the CDC’s recommendations for cleaning and disinfecting its school facility restrooms that was available at the time the work was completed, using the Kaivac systems to facilitate that purpose, i.e., the systems were use to apply EPA-registered cleaning solutions for surface cleaning and disinfection. The Applicant’s pandemic cleaning schedule specified that its custodial staff would use the Kaivac systems to apply a product (“Terminator”[25]) that is currently registered with the EPA as effective for surface disinfection of the COVID-19 virus.[26]

The Applicant stated that it began using the Kaivac systems on June 12, 2020; the systems were in use when school facilities were opened to administrative staff on July 27, 2020, and to students and other staff on August 24, 2020 through the remainder of the school year. Further, the Applicant’s cleaning schedules for the initial period of the pandemic include detailed instructions that incorporate the use of the Kaivac systems and state that, with their use, “[t]he speed of the process will allow more opportunities for cleaning during the school day.”[27] Accordingly, the Applicant’s pandemic cleaning schedule includes instructions to clean restrooms three times daily; in contrast, its pre-pandemic cleaning schedule shows that it cleaned restrooms once per day. Thus, the Applicant has demonstrated that it used the Kaivac systems to increase the frequency with which it cleaned facility restrooms during the pandemic.

Regarding cost eligibility, FEMA acknowledges that the Applicant purchased the Kaivac systems early in the COVID-19 pandemic despite having fully expended its pre-pandemic budget for custodial supplies. In addition, the Applicant made changes to its routine custodial operations, adjusting staff hours, reassigning staff between campuses, and setting explicit expectations for cleaning and disinfecting common areas, including restrooms.[28] The Applicant’s pandemic cleaning schedule begins by stating that “[t]he COVID-19 pandemic has exposed our communities to uncertainty and fear … [t]o meet these new challenges, the custodial staff must adapt in order to provide the service needed during this pandemic.”[29] Therefore, given the circumstances prevailing at the time, FEMA determines that the Applicant incurred the costs at issue as a necessary and reasonable response to the COVID-19 pandemic.

Conclusion

The Applicant has demonstrated that the use of the Kaivac systems was associated with an eligible emergency protective measure taken in response to the COVID-19 pandemic, and that costs totaling $102,092.79 for the purchase of the Kaivac systems were reasonable and necessary. Therefore, this appeal is granted.