Immediate Threat; Force Account Labor and Equipment Costs

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4486
Applicant	City of Miami
Appeal Type	Second
PA ID#	086-45000-00
PW ID#	GMP 157170
Date Signed	2023-06-07T16:00:00

Summary Paragraph

The coronavirus (COVID-19) pandemic in Florida resulted in a major disaster declaration on March 25, 2020, with an incident period of January 20, 2020, to May 11, 2023. The Applicant incurred straight-time FAL costs for the reassignment of five Urban Search & Rescue (US&R) employees to COVID-19-related tasks. The tasks included assisting its COVID-19 call center, dissemination of public health information at local nursing homes, and assisting COVID-19 testing operations and the FAL costs totaled $34,763.19 for 340.5 hours of work performed. FEMA issued a Determination Memorandum denying the project. FEMA determined that the documentation did not show that the employees were engaged in eligible emergency protective measures and that the costs represented increased operating costs for continuing government services. The Applicant submitted a first appeal to the Florida Division of Emergency Management (Recipient) for the denied FAL costs. The FEMA Region 4 Regional Administrator partially granted the appeal. FEMA found that the documentation did not support 199 hours of the Applicant’s 340.5 FAL hours were for the completion of eligible, disaster-related emergency work. However, FEMA validated 141.5 hours as eligible but also believed that the employee pay rate for these eligible hours appeared excessive given the type of work performed. The Applicant submitted its second appeal, with additional documentation, seeking $34,763.19 for 340.5 FAL hours and reiterating its first appeal arguments.

Authorities and Second Appeals

• Stafford Act §§ 403, 502.
• 2 C.F.R. § 200.403(a); 44 C.F.R. §§ 206.223(a), 206.225(a).
• PAPPG, at 19, 24, 57.
• FP 104-21-003, at 5; FP 104-21-0004, at 5-6.
•  FEMA Fact Sheet: Accessible Public Service Announcements, at 1-2; FEMA Fact Sheet Test-to-Treat, at 1; FEMA Fact Sheet, Eligible Emergency Protective Measures.

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 the guidance of, or at the direction of, appropriate public health officials.
  • The Applicant provided adequate documentation which tracks and shows the employees’ assignments were directly tied to COVID response operations and that its work meets the work eligibility criteria required by FEMA’s policies.

• Straight-time FAL of a permanent employee funded from an external source is eligible if the employee is reassigned to perform eligible emergency work that the external source does not fund. In such circumstance, PA funding is based on the employee’s normal pay rate.
  • The documentation shows the reassigned employees, sponsored by the Applicant, are funded by a grant administered by an external source and that the hourly rate paid to these employees complied with the Applicant’s predisaster labor policy and with FEMA’s policy regarding reimbursement of normal pay rates of reassigned employees performing emergency work.

Conclusion

The Applicant has demonstrated its reassigned FAL costs are directly tied the performance of eligible emergency work. The Applicant also showed that its hourly pay rates for the claimed FAL straight-time hours for reassigned employees are commensurate with the Applicant’s normal hourly pay rates for those employees and are consequently eligible. Therefore, this appeal is granted in the amount of $34,763.19.

Appeal Letter

Appeal Analysis

Background

The coronavirus (COVID-19) pandemic in Florida resulted in a major disaster declaration with an incident period of January 20, 2020, to May 11, 2023. The City of Miami (Applicant) activated its Emergency Operations Center (EOC) and opened testing sites to help identify COVID-19 positive individuals for quarantine in accordance with the Centers for Disease Control and Prevention’s (CDC) recommendations. The Applicant used force account labor (FAL) and incurred costs from March 10-18, 2020, for the reassignment of five Urban Search and Rescue (US&R) Florida Task Force 2 (FL-TF2) employees to: (1) assist the Applicant’s call center; (2) conduct COVID-19 testing for non-mobile residents and the unhoused; and (3) educate nursing home residents on COVID-19 risks. The Applicant requested Public Assistance (PA) funding to reimburse costs totaling $34,763.19 for 340.5 straight-time hours of work performed by these reassigned employees. The Applicant submitted documentation that showed the US&R FL-TF2 employees are ordinarily funded by FEMA and their purpose is generally to provide search and rescue operations, including helping local and state governments in such operations during disasters.[1]

On June 10, 2021, FEMA issued a Determination Memorandum denying PA funding. FEMA found that the Applicant’s documentation did not show that the reassigned employees were engaged in eligible emergency protective measures. FEMA found that the costs represented increased operating costs for continuing governmental services.

First Appeal

On August 10, 2021, the Applicant submitted its first appeal, asserting that its reassigned employees performed eligible activities that were approved by FEMA for other projects during the same time. The Applicant also contended that the work aligned with the CDC’s recommendations for COVID-19 as well as FEMA’s Public Assistance Program and Policy Guide (PAPPG) regarding dissemination of health information and distribution or prepositioning of supplies. The Applicant specifically highlighted its work assisting its COVID-19 call center, local nursing homes, and COVID-19 testing operations as examples of eligible work.

On October 17, 2022, FEMA partially granted the appeal. FEMA first found the documentation supported that 141.5 hours of the Applicant’s claimed 340.5 FAL hours were associated with eligible, disaster-related emergency work performed by the US&R FL-TF2 reassigned fire captain. However, FEMA determined that the employee pay rate for these 141.5 hours was excessive given the type of work performed and returned the eligible work to the Region 4 PA Branch to consider further and to obligate reasonable costs.  FEMA then denied the remaining 199 hours of work, finding the documentation did not demonstrate those hours were affiliated with the completion of eligible, disaster-related emergency work.

Second Appeal

On December 15, 2022, the Applicant submitted its second appeal for all the claimed 340.5 straight-time FAL hours and associated costs of $34,763.19. The Applicant reiterates its first appeal arguments and further asserts that all FAL hours were documented, met PAPPG criteria, were completed in the performance of EOC or Applicant-run testing site duties directly tied to COVID-19 response operations, and were performed for a limited duration. In support of its activities and utilized pay rates, the Applicant asserts that FEMA incorrectly evaluated the level and type of activities and responsibilities performed by the employees and provides a further explanation of the management and oversight responsibilities and activities performed by the fire captain, during the claimed time period.[2] To further validate the hourly rate paid to the fire captain, the Applicant provides a copy of an outside vendor’s proposal for equivalent work, solicited by the City of Miami’s Department of Health.  The quoted hourly rate for a Site Manager was $135.00, which the Applicant pointed out was double the hourly rate paid to the Applicant’s fire captain.

 

Discussion

Immediate Threat

FEMA is authorized to provide 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 under COVID-19 declarations includes COVID-19 diagnostic testing, EOC costs to direct and coordinate resources and response activities, training and technical assistance specific to the declared event, purchase and distribution of food, movement of supplies and equipment, security and law enforcement, communications of general health and safety information to the public, and cleaning and disinfection of eligible facilities.[5] To be eligible, costs must be directly tied to the performance of eligible work.[6]

With its second appeal, the Applicant provides additional documentation, including payroll, timesheets, and statements of earnings with activity logs for the previously denied 199 hours of claimed FAL. This documentation tracks and shows the employees’ assignments were directly tied to eligible COVID-19 response operations that includes: assisting the EOC with its call center, website, security, and preparing and providing status updates on available resources; disinfecting public facilities; delivering and ordering equipment and supplies for the EOC and testing sites; preparing and staffing the isolation facilities at testing sites and obtaining and setting up generators, port-a-potties, lights, and other equipment used at testing sites; and communicating and disseminating COVID health and safety information and warnings. These are all eligible emergency protective measures listed under FEMA’s COVID-19 policies.[7] Accordingly, all the FAL costs are directly tied to the performance of eligible work.

Force Account Labor and Equipment Costs

To be eligible, claimed costs must be allowable.[8] Straight-time FAL of a permanent employee funded from an external source (such as a grant from a Federal agency or statutorily dedicated funds) is eligible if the employee is reassigned to perform eligible emergency work that the external source does not fund.[9] FEMA provides PA funding based on the employee’s normal pay rate, not the pay level appropriate to the work, because the applicant’s incurred cost is the employee’s normal pay rate.[10]

Here, the documentation shows the reassigned US&R FL-TF2 employees are funded by a grant that does not fund work associated with response to the COVID-19 pandemic. In the first appeal response, FEMA determined that 141.5 hours of work performed by the reassigned fire captain were associated with eligible COVID-19-related emergency work and returned the project for further consideration of a reasonable pay rate.  As noted above, on second appeal, the Applicant has demonstrated the remaining 199 hours of work performed by its reassigned FAL is associated with eligible COVID-19-related emergency work. The Applicant’s statements of earnings validate the 340.5 FAL hours worked and the associated normal hourly pay rate of each reassigned employee, including the fire captain. Therefore, under FEMA’s policy, the total FAL hours claimed for emergency work is eligible for PA funding based on the reassigned unbudgeted employee’s normal pay rate, not the pay level appropriate to the type of work performed. Thus, FEMA finds that the hourly pay rates were commensurate with each employee’s normal pay rate, and, therefore, eligible for PA. As such, the region does not need to separately establish a reasonable pay rate for the work performed by the fire captain.

 

Conclusion

The Applicant has demonstrated its reassigned FAL costs are directly tied the performance of eligible emergency work. The Applicant also showed that its hourly pay rates for the claimed FAL straight-time hours for reassigned employees are commensurate with the Applicant’s normal hourly pay rates for those employees and are consequently eligible. Therefore, this appeal is granted in the amount of $34,763.19.