Immediate Threat

Appeal Brief

Summary Paragraph

The Coronavirus (COVID-19) pandemic in Mississippi created an immediate threat to public health and safety. Wilkinson County (Applicant) requested PA for contract security guards, cleaning/disinfecting, and building rental. FEMA prepared Grants Manager Project 160349/ Project Worksheet 397 to document the request. FEMA sought documentation, including security guards’ activity logs. The Applicant did not provide logs, but described the security guards’ courthouse duties as COVID-19 screening/temperature scanning, and mask and occupancy protocol enforcement. FEMA issued a Determination Memorandum denying $76,414.21 for courthouse security and building rental costs. The Applicant appealed, seeking building rental costs and a revised amount for the denied security costs, asserting that the security guards performed eligible emergency work. The Mississippi Emergency Management Agency (Recipient) transmitted the first appeal with a letter of recommendation. The FEMA Region 4 Regional Administrator denied the appeal finding that the Applicant did not demonstrate that the security guards’ costs were associated with disaster-related emergency work, and the rental costs were not eligible for PA. FEMA noted, among other things, that the Applicant did not submit documentation showing the guards’ duties. On November 9, 2023, the Applicant submitted a second appeal, requesting $64,182.20 for the security costs and reiterating previous arguments. The Applicant submitted additional documentation, including affidavits describing the guards’ duties. The Recipient transmitted the Applicant’s request with a letter recommending approval.

Authorities

• Stafford Act §§ 403(a)(3), 502.
• 44 C.F.R. §§ 206.223(a)(1), 206.225(a)(3).
• PAPPG, at 19, 21, 57, 58, and 133.
• FP 104-009-19, at 1, 3-4; FP-104-21-0003, at 4-5.
• City of Norwalk, FEMA-4483-DR-IA, at 3 n.13; City of Biloxi,, FEMA-4528-DR-MS, at 5; Simpson College, FEMA-4483-DR-IA, at 4 .

Headnotes

• To be eligible, costs must be directly tied to the performance of eligible work.
  • The Applicant has not substantiated that the costs are directly tied to eligible emergency protective measures in response to the declared incident.

Conclusion

The Applicant has not demonstrated that the claimed costs are directly tied to eligible emergency protective measures. Therefore, this appeal is denied.

Appeal Letter

Appeal Analysis

Background

The Coronavirus (COVID-19) pandemic in Mississippi created an immediate threat to the health and safety of the general public.[1] Wilkinson County (Applicant) requested Public Assistance (PA) for various expenses, including courthouse security costs, cleaning/disinfecting, and building rental. FEMA prepared Grants Manager Project 160349 to document the Applicant’s costs of $109,889.21.[2] FEMA issued a Request for Information (RFI) seeking documentation, including activity logs, and the security guards’ employee status (budgeted vs. unbudgeted). The Applicant responded, stating that the security guards were independent contractors hired to screen courthouse visitors for COVID-19 symptoms/exposure, perform temperature scanning, mask enforcement, and occupancy protocol enforcement. 

On March 9, 2023, FEMA issued a Determination Memorandum denying $76,414.21 for courthouse security and building rental costs. FEMA stated that the Applicant had not demonstrated that the denied work and costs were required in direct response to an immediate threat. Rather, FEMA determined the security costs were straight-time Force Account labor costs incurred while providing routine government services in a COVID-19 environment and that the building rental constituted an increased operating cost.

First Appeal 

On May 5, 2023, the Applicant submitted a first appeal, seeking a revised amount for the denied security guards’ costs, and the building rental costs, totaling $64,932.20.[3] The Applicant asserted that the security guards were temporary independent contractors that performed eligible COVID-19 emergency work. The Mississippi Emergency Management Agency (Recipient) transmitted the first appeal with a letter of recommendation on May 11, 2023. 

The FEMA Region 4 Regional Administrator denied the appeal in a letter dated September 11, 2023, finding that the Applicant did not demonstrate that the security guards’ costs were associated with temporary or unbudgeted employees performing disaster-related emergency work, and the rental costs were not eligible for PA. FEMA noted that under COVID-19 policy, costs for screening and temperature scanning may be eligible for PA, but the Applicant did not submit work logs or other documentation verifying that it performed eligible work. FEMA also noted that straight-time and overtime are eligible for temporary employees hired to perform eligible emergency work, but that the Applicant did not provide documentation, such as an employment contract, showing employees’ hire dates and the duties they were hired to perform.

Second Appeal

On November 9, 2023, the Applicant submitted a second appeal, requesting $64,182.20 for the security guards’ costs and reiterating previous arguments.[4] The Applicant acknowledged that it did not have work logs describing the work performed by individuals on a daily basis, but it provided employee and supervisor statements to substantiate its claim. The statements indicated guards were performing screening and temperature scanning, enforcing mask mandates, maintaining courthouse visitor logs, limiting entry per the Applicant’s COVID-19 protocols, and enforcing social distancing for courthouse visitors. To demonstrate that the guards were temporary employees hired to perform emergency work, the Applicant submitted additional documentation, including a cash disbursements ledger, 1099 tax forms, and affidavits describing the guards’ duties. The Recipient transmitted the Applicant’s request with a letter dated November 13, 2023, recommending approval.

Discussion

FEMA is authorized to provide assistance for emergency protective measures to save lives or to protect public health and safety, including security.^[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.^[6] In response to COVID-19, eligible emergency protective measures include certain measures implemented to facilitate the safe opening and operation of eligible facilities, including the purchase and distribution of face masks and personal protective equipment (PPE), cleaning and disinfection, COVID-19 diagnostic testing, screening and temperature scanning, and the purchase and installation of temporary physical barriers and signage.^[7] Security costs incurred on or after September 15, 2020 are only eligible when necessary to perform otherwise eligible COVID-19 emergency work.^[8] To be eligible, costs must be tied to the performance of eligible work and adequately documented.^[9] It is the Applicant’s responsibility to substantiate its claim as eligible.^[10] If the Applicant does not provide sufficient documentation to support its claim as eligible, FEMA cannot provide PA funding for the work.^[11]

The Applicant seeks PA funding for costs it claims are associated with the safe opening and operation of its courthouse. In support of its request, the Applicant provided security guards’ timesheets that show work hours, dates, and pay rates, but not the work performed. The Applicant acknowledged that it did not have activity logs describing the work performed by individuals on a daily basis in order to tie their costs to the performance of eligible work. The Applicant also did not provide contract documents that may have specified the security guards’ duties as being only those eligible for COVID-19. Instead of activity logs or contract documentation, the Applicant has provided multiple statements claiming that the security guards performed various duties related to COVID-19. According to the statements, these duties included screening courthouse visitors for COVID-19 symptoms/exposure and temperature scanning, but also included enforcing mask mandates, maintaining courthouse visitor logs, limiting entry per the Applicant’s COVID-19 protocols, and enforcing social distancing for courthouse visitors. With the exception of screening and temperature scanning, the listed duties, even if related to the incident, are not among the eligible measures to facilitate the safe opening and operation of eligible facilities in response to COVID-19 in FEMA’s Coronavirus (COVID-19) Pandemic: Safe Opening and Operation Work Eligible for Public Assistance policy (i.e., PPE, cleaning and disinfecting, COVID-19 testing, screening/temperature scanning, and temporary physical barriers).^[12]The Applicant has also neither claimed nor demonstrated that the security guards’ costs were necessary to perform eligible emergency work listed in any other COVID-19 policy (e.g., medical care, non-congregate sheltering, or mass casualty management).

An applicant’s documentation must provide a description of activities the claimed work entails to enable FEMA to distinguish between potentially eligible emergency protective measures and other work.^[13] Since neither the statements nor any other provided documents differentiate the costs associated with potentially eligible screening and temperature scanning work from costs for ineligible work, the Applicant has not demonstrated that the claimed costs are directly tied to eligible work. Therefore, the costs are not eligible for PA.^[14]

Conclusion

The Applicant has not demonstrated that the claimed costs are directly tied to eligible emergency protective measures. Therefore, this appeal is denied.