Immediate Threat, Force Account Labor & Equipment Costs

Appeal Brief

Appeal Letter

Appeal Analysis

Background

The coronavirus (COVID-19) pandemic resulted in a major disaster declaration for the state of Alabama on March 29, 2020, with an incident period from January 20, 2020, through May 11, 2023. Relevant to this appeal, the Montgomery County Commission (Applicant) requested reimbursement of $508,158.38 in force account labor (FAL) overtime (OT) costs to address the shortages of law enforcement and associated personnel in various areas related to COVID-19.[1] FEMA issued a Determination Memorandum on July 3, 2023, denying the FAL OT. FEMA found the costs were not directly related to performing eligible emergency protective measures.

First Appeal 

In a letter dated August 31, 2023, the Applicant submitted its first appeal, requesting that FEMA reconsider its denial of the FAL OT costs. The Applicant claimed that the FAL OT costs for law enforcement were incurred due to the COVID-19 pandemic. The Applicant stated that because more officers were deployed countywide to enforce the Governor’s Stay-at-Home Order, staff from its Sheriff’s Office were needed to monitor the Alabama Emergency Management Agency’s radio traffic during the COVID-19 emergency and asserted that its detention facility required shift coverage for detention officers quarantined due to COVID-19 exposure. On September 5, 2023, the Alabama Emergency Management Agency (Recipient) submitted the appeal to FEMA requesting that FEMA review the Applicant’s documentation.

On April 28, 2024, the FEMA Region 4 Regional Administrator denied the appeal for the FAL OT costs, finding that the Applicant had not substantiated through documentation that the claimed costs related to the performance of eligible emergency protective measures.

Second Appeal

The Applicant appealed FEMA’s denial in a letter dated June 27, 2024, in which it expands on its first appeal arguments. The Applicant submits a revised FAL OT cost request totaling $147,274.17, which includes $33,176.24 for Sheriff’s Office staff for work performed from March 16, 2020, through May 11, 2020, and $114,097.93 for detention facility staff for work performed from March 17, 2020, through September 14, 2020.

The Applicant explains that the $33,176.24 in requested FAL OT costs associated with the Sheriff’s Office was to staff the emergency operations center (EOC) in response to COVID-19 and that all work was performed from March 2020 until May 2020. The Applicant also explains that the EOC was opened solely in response to COVID-19. On second appeal, the Applicant provides a revised FAL OT spreadsheet that includes the names, titles, dates, hours, pay rates, daily activity logs (ICS-214) with a description of activities performed by the Sheriff’s Office at the EOC, and the Applicant’s pay policy. 

The Applicant confirms that the remaining $114,097.93 in requested FAL OT costs for the detention facility staff is associated with work performed from March 2020 until 

September 2020, which consisted of distributing personal protective equipment (PPE) to staff and inmates; cleaning and disinfecting door handles, handcuffs, hard surfaces, and inmate units/cells; and screening inmates for COVID-19 symptoms. The Applicant states it performed this work in direct response to the pandemic and to prevent the spread of COVID-19 in its detention facility. On July 1, 2024, the Recipient transmitted the appeal to FEMA.

Discussion

FEMA is authorized to provide assistance for emergency protective measures to save lives and protect public health and safety.[2] For emergency protective measures to be eligible, the applicant is responsible for showing that the work is required due to an immediate threat resulting from the declared incident.[3] In response to COVID-19, eligible emergency protective measures may include operation of EOC to manage, control, and reduce immediate threats to public health and safety and certain specific, limited measures to facilitate the safe opening and operation of eligible facilities, including the purchase and distribution of face masks and PPE, cleaning and disinfection, and screening and temperature scanning.[4] FEMA may also provide assistance for FAL OT costs that are directly tied to the performance of eligible emergency work and adequately documented.[5]

With its second appeal, the Applicant submitted a revised FAL OT cost spreadsheet that contained significantly more detail than the information it previously provided to FEMA, as well as additional documentation. The Applicant-provided documentation verified that the EOC was opened specifically to respond to the COVID-19 event, that all EOC-related work occurred between March 2020 and May 2020, and the Sheriff’s Office FAL OT costs were incurred for staff at the EOC to monitor radio traffic and dispatch in response to COVID-19. Therefore, the Applicant has provided documentation that demonstrates the Sheriff’s Office FAL OT costs are directly tied to the performance of eligible work and are eligible for PA reimbursement. 

The Applicant similarly provided additional documentation on second appeal relating to the FAL OT costs for the detention facility staff. The Applicant’s documentation establishes that the FAL OT costs are associated with detention officers performing eligible measures in response to COVID-19 to facilitate the safe opening and operation of the detention facility. Activities included distributing PPE, cleaning and disinfecting various items in the facility (e.g., door handles, handcuffs, various hard surfaces, and inmates’ cells), and screening inmates for COVID-19. The officers performed these duties from March 2020 through September 2020, in direct response to the pandemic and to prevent the future spread of COVID-19. Therefore, the claimed FAL OT costs for detention facility are eligible for PA reimbursement.

Conclusion

The Applicant has demonstrated that the requested $147,274.17 in FAL OT costs are directly tied to the performance of eligible emergency work. Therefore, this appeal is granted.