Immediate Threat

Appeal Brief

Summary Paragraph

The COVID-19 pandemic resulted in a major disaster declaration for the state of New Jersey on March 25, 2020, with an incident period of January 1, 2020, through to May 11, 2023. The Montville Township Board of Education (Applicant) requested Public Assistance reimbursement for, among other items, student desks, storage containers, and bipolar ionization units. The Applicant stated that it purchased the school desks to replace the tables normally used by kindergarteners who sat together predisaster. The Applicant also stated that it used the storage containers to store classroom items, so it had space to keep student desks six feet apart. FEMA denied costs associated with those items, finding they were not tied to the performance of eligible emergency protective measures under FEMA COVID-19 policies. The Applicant submitted a first appeal, requesting $448,706.82 for the previously denied costs. The Applicant submitted that it purchased the student desks and storage containers to facilitate social distancing and that it had used a layered approach that included bipolar ionization units, to address COVID-19. The FEMA Region 2 Regional Administrator denied those costs, finding the purchased desks, storage containers, and bipolar ionization units were not eligible emergency protective measures in response to COVID-19. The Applicant submits a second appeal, reiterating its first appeal arguments. 

Authorities

• Stafford Act § 403(a)(3).
• 44 C.F.R. §§ 206.223(a)(l); 206.225(a).
• PAPPG, at 19, 57.
• O&O Policy, 4-5; Air Disinfection Memorandum, at 1.
• Chenango Valley Central School District, FEMA-4480-DR-NY, at 2; Susquehanna Valley Central School District, FEMA-DR-4480-NY, at 6-7; Seneca Falls Central School District (Seneca Falls Board-Education), FEMA-4480-DR-NY, at 2-3; Spotswood School District, FEMA-4488-DR-NJ, at 3-4.

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. 
  • The purchases of student desks and storage containers are not associated with eligible emergency protective measures found in FEMA’s COVID-19 policies.
• FEMA may only fund air disinfection where the measure is consistent with guidance from the CDC or an appropriate public health official available at the time the work was completed.
  • The Applicant has not demonstrated that the purchase of bipolar ionization units was done in accordance with guidance from the CDC or an appropriate public health official at the time the work was completed. 

Conclusion

FEMA finds that the Applicant has not demonstrated that the purchase of student desks, storage containers, and bipolar ionization units are eligible emergency protective measures 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 New Jersey on March 25, 2020, with an incident period of January 1, 2020, to May 11, 2023. The Montville Township Board of Education (Applicant) requested Public Assistance (PA) reimbursement for the purchase of materials, supplies, and equipment, totaling $479,537.80. These costs included student desks, storage containers, and air scrubbers purchased prior to September 15, 2020, and the purchase and district-wide installation of bipolar ionization units[1] between September 4, 2020, and January 8, 2021. On June 16, 2023, FEMA transmitted an email to the Applicant, asking if the air scrubbers contained high efficiency particulate air (HEPA) filters 13 or above. In response, the Applicant explained that the air scrubbers used ultraviolet (UV) technology so HEPA filters were unnecessary.

On September 12, 2023, FEMA issued a Determination Memorandum (DM) denying $464,940.08 in requested costs. Among other things, FEMA found that the purchase of student desks and storage containers could not be tied to the performance of eligible emergency protective measures identified in FEMA COVID-19 policies. FEMA also found that the purchase of air scrubbers and bipolar ionization units were ineligible because the work performed was not consistent with the Centers for Disease Control and Prevention’s (CDC) guidance as required under FEMA’s COVID-19 policies.[2]

First Appeal

In a letter dated October 23, 2023, the Applicant submitted a first appeal limited to FEMA’s denial of $454,506.82 for the costs associated with the student desks, storage containers, air scrubbers, and bipolar ionization units.[3] The Applicant stated that it purchased the school desks to replace the tables normally used by kindergarteners who sat together predisaster. The Applicant also stated that it used the storage containers to store classroom items, so it had space to keep student desks six feet apart. The Applicant asserted it was following the CDC’s Reopening America guidance which recommended social distancing.[4]

In addition, the Applicant stated that it used a layered approach to address COVID-19, including air disinfection utilizing the air scrubbers and bipolar ionization units, as well as outdoor air exchange, facemask usage, social distancing, cleaning and disinfecting surfaces, and hand hygiene. The Applicant also confirmed the specific locations where it installed air scrubbers. The Applicant asserted it purchased the air scrubbers and bipolar ionization units in the fall of 2020 based on the information available at the time and noted that FEMA issued the policies cited in its DM after the fall 2020 purchase dates. On December 21, 2023, the New Jersey Office of Emergency Management (Recipient) transmitted the appeal to FEMA expressing its support. 

On March 14, 2024, Region 2 Regional Administrator partially granted the appeal. FEMA found that the costs associated with the air scrubbers, $5,800.00, were eligible because: (1) the Applicant demonstrated it implemented a layered approach; and (2) used the air scrubbers in the school nurses’ and counselors’ offices. FEMA then determined that the purchase of student desks and storage containers were not eligible emergency protective measures and were not listed in FEMA’s Coronavirus (COVID-19) Pandemic: Safe Opening and Operation Work Eligible for Public Assistance (Interim), Version 2 policy (O&O Policy) as eligible items for the safe opening and operation of a facility. FEMA also determined that the purchase of bipolar ionization units was not eligible because the Applicant had not demonstrated that the use of the devices was consistent with guidance from either the CDC or that of a public health official as it related to air disinfection.

Second Appeal

In a letter dated May 13, 2024, the Applicant submits a second appeal disputing FEMA’s denial of $448,706.82 for the purchased student desks, storage containers, and bipolar ionization units. The Applicant asserts that the purchases were necessary to adhere to the CDC’s social distancing guidelines, the Environmental Protection Agency’s (EPA) indoor air quality guidelines, and FEMA’s O&O Policy. The Applicant reiterates that the purchase of bipolar ionization units was based on the best available information at the time and guidance from “reputable sources.”^[5] The Applicant states it used a layered approach, including the use of bipolar ionization, based upon the EPA’s Air Cleaners, HVAC Filters, and Coronavirus (COVID-19) guidance.^[6] In addition, the Applicant explains that ASHRAE (formerly, the American Society of Heating, Refrigerating, and Air-Conditioning Engineers), whose standards are often cited by government agencies, has stated the phrase “emerging technologies” does not imply that the technology does not work as advertised.[7] The Applicant asks FEMA to defer to ASHRAE’s position regarding the use of emerging technology for air cleaning. In a letter dated June 5, 2024, the Recipient transmits the second appeal expressing its support. 

Discussion

FEMA is authorized to provide assistance for emergency protective measures to save lives and protect public health and safety.^[8] 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.^[9] In response to COVID-19, eligible emergency protective measures include certain specific, limited measures implemented to facilitate the safe opening and operation of eligible facilities, including: (1) the acquisition and installation of temporary physical barriers, such as plexiglass barriers and screens/dividers, and signage to support social distancing such as floor decals; and (2) cleaning and disinfection, including the purchase and provision of necessary supplies and equipment in excess of the applicant’s regularly budgeted costs.^[10] For COVID-19 declarations, such 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.^[11] Air disinfection may be eligible in limited circumstances in accordance with FEMA’s O&O Policy.^[12]

Here, the Applicant requests PA reimbursement for the purchase of individual student desks and storage containers to store classroom items, to facilitate social distancing between students to allow for a six-feet distance as recommended by the CDC during the COVID-19 pandemic. The O&O Policy provides for specific, limited emergency protective measures to facilitate the safe opening and operating of eligible facilities. The purchase of desks and storage containers is not among the list of eligible emergency protective measures in the O&O Policy or any other FEMA COVID-19 policy.^[13] Notwithstanding CDC recommendations related to social distancing, the desks and storage containers at issue here did not offer a temporary physical barrier between students.[14] Therefore, the desks and storage containers are ineligible for PA funding.

The Applicant also requests PA reimbursement for the purchase and district-wide installation of bipolar ionization units. However, FEMA policy requires that the purchase of supplies and equipment for COVID-19 cleaning and disinfection, including air disinfection, be done in accordance with CDC guidance or that of an appropriate public health official available at the time the work was completed.^[15] In its second appeal, the Applicant asserts bipolar ionization was recommended by “reputable sources” without specifying what sources were consulted. At the time the Applicant purchased the bipolar ionization units, the CDC advised that the efficacy of alternative disinfection methods was not known and noted that the EPA could not confirm under what circumstances, if any, such devices might be effective against COVID-19.[16] Unlike Ultraviolet Germicidal Irradiation (UVGI) air disinfection,[17] which FEMA may approve in certain circumstances, neither the CDC nor the EPA recommend bipolar ionization and both refer to the technology as “emerging.”^[18] The Applicant asks FEMA to adopt ASHRAE’s position regarding emerging technologies; however, ASHRAE does not constitute an appropriate public health official under FEMA’s applicable COVID-19 policy.[19] Moreover, the ASHRAE position on emerging technology cited to by the Applicant is in actuality the organization reiterating the CDC’s Ventilation guidance.[20] Based on the above, the Applicant has not demonstrated that it purchased and installed the bipolar ionization units in accordance with guidance from the CDC or an appropriate public health official at the time it completed the work.

Conclusion

The Applicant has not demonstrated that the purchases of student desks, storage containers, and bipolar ionization units are eligible emergency protective measures in response to COVID-19.