Immediate Threat, Other Federal Agencies

Appeal Brief

Summary Paragraph

The coronavirus (COVID-19) pandemic resulted in a major disaster declaration for the State of Texas. Harris County (Applicant) requested Public Assistance (PA) funding for its COVID-19 response operation, including $328,860.31 for contracted personnel to support its Emergency Operation Center (EOC). FEMA sent a Request for Information asking about the duties of the contracted personnel. The Applicant responded indicating that the contracted personnel interviewed COVID-19 patients, collected their information, and conducted related research and investigation. FEMA issued a Determination Memorandum denying the costs for the contracted personnel, finding the work was not related to eligible emergency protective measures but ineligible increased operating costs. The Applicant appealed and stated that the contracted personnel were part of the COVID-19 EOC response and vital for vaccination efforts, COVID-19 testing and communications to its citizens. The Texas Division of Emergency Management transmitted the appeal to FEMA, with its support. FEMA Region 6 Regional Administrator denied the appeal, finding that the work performed by the contracted personnel is considered contact tracing, and thus, is ineligible per FEMA policy. The Applicant filed a second appeal, reiterating previous arguments and stating that the work performed by its contracted personnel does not align with the definition of contact tracing, but rather with the definition of case investigation provided by the Centers for Disease Control and Prevention. 

Authorities

• Stafford Act § 403(a)(3).
• 44 C.F.R. §§ 206.223(a)(3)(i); 206.225(a)(1).
• PAPPG, at 19, 57, and 62.
• Fact Sheet, Eligible Emergency Protective Measures, at 1-2; Medical Care Policy, at 3-4; O&O Policy, at 2, 4-6; Work Eligible for Public Assistance Policy, at 3; Fact Sheet, Coordinating Public Assistance, at 1.
• CDC, Contact Tracing, at 1. 
• Scott County, FEMA-4483-DR-IA, at 3.

Headnotes

• To be eligible, costs must be directly tied to the performance of eligible work.
  • The Applicant has not demonstrated that the contracted personnel are directly tied to the performance of potentially eligible work such as administering vaccines, directing or coordinating resource and response activities for COVID-19 declarations as part of EOC operations, or creating messages to disseminate COVID-19 public information. 
• PA program is not the appropriate source of funding for COVID-19 contact tracing, which includes the initial identification of cases.
  • Any contracted personnel costs associated with contact tracing would not be eligible for PA funding.

Conclusion

The Applicant has not demonstrated the cost for the contracted personnel is directly tied to the performance of emergency protective measures eligible for PA funding under the COVID-19 declaration. Therefore, this appeal is denied.

Appeal Letter

Appeal Analysis

Background

The coronavirus (COVID-19) pandemic resulted in a major disaster declaration for the state of Texas on March 25, 2020, with an incident period from January 20, 2020, to May 11, 2023. Harris County (Applicant) requested $328,860.31 in Public Assistance (PA) funding for contract costs of three personnel positions identified as Case Investigator, Epidemiologist, and Technician & Case Investigator (collectively referred to as contracted personnel).[1] The Applicant explained that the contracted personnel supported its Emergency Operations Center (EOC), which housed multiple functions, including testing and vaccination operations from March 2020 to July 2022.

On September 29, 2023, FEMA sent a Request for Information (RFI) asking for further explanation of the work performed by the contracted personnel. On October 12, 2023, the Applicant responded to the RFI describing the duties as follows:

• Case Investigator: collected detailed information about individuals within congregate settings (such as schools, workplaces, and long-term care facilities) who had tested positive for COVID-19, such as symptoms, onset of illness, and potential sources of exposure. The information gathered helped identify patterns associated with congregated facilities contracting COVID-19.
• Epidemiologist: researched the changing guidance and outbreaks of COVID-19 and provide guidance to investigators. 
• Technician & Case Investigator: investigated COVID-19 positive patients and outbreaks to make recommendations for control measures and prevention. The Harris County Public Health Department used the information collected to identify patterns of unrelated individuals contracting COVID-19.

FEMA issued a Determination Memorandum on December 7, 2023, denying the requested costs for the contracted personnel, and finding they were not related to eligible emergency protective measures but instead were ineligible increased operating costs. FEMA also stated that the contracted personnel collected data for Harris County Public Health to develop strategies and not to inform individuals that may have been exposed to COVID-19.

First Appeal

The Applicant filed a first appeal on February 5, 2024, requesting FEMA to approve $328,860.31 in PA funding and stating that the contracted personnel duties were part of the COVID-19 EOC response and were vital for COVID-19 communications to its citizens.[2] The Applicant stated that the information gathered by the contracted personnel was needed to meet federal requirements, such as FEMA’s vaccination report and other reports required by the state of Texas. Specifically, the Applicant cited to FEMA’s Coronavirus Pandemic (COVID-19) Medical Care Costs Eligible for Public Assistance policy, which it stated lists vaccination administration consistent with equitable response and recovery as eligible work, along with requirements for collecting and incorporating data for short term targets for equitable delivery of FEMA assistance.[3] The Applicant stated that it needed to collect COVID-19 positive case data to meet these requirements and determine specific communities that required special vaccination resource attention. In support, the Applicant submitted a Case Report Form, which showed the information that was asked of the COVID-19 patients. Further, the Applicant stated the contracted personnel gathered the information to create the COVID-19 messages to disseminate to the general public, as well as to specific individuals with COVID-19, which the Applicant claimed was eligible under FEMA’s COVID-19 Pandemic: Work Eligible for Public Assistance policy (Work Eligible for Public Assistance Policy).[4] The Applicant also stated that the contracted cost is eligible under the EOC portion of the Work Eligible for Public Assistance Policy as it was incurred as part of the work performed in its EOC. The Applicant explained that the information collected by the contracted personnel allowed the incident management decision makers to coordinate the pandemic responses. 

Alternatively, the Applicant stated that the cost related to the contracted personnel were eligible increased operating costs. Finally, the Applicant stated that the cost on appeal was not for contact tracing. It noted that other personnel performed contact tracing activities, but that it did not request reimbursement from FEMA for that cost. On March 4, 2024, the Texas Division of Emergency Management (Recipient) transmitted the appeal to FEMA, supporting the Applicant’s appeal. 

On June 12, 2024, the FEMA Region 6 Regional Administrator denied the appeal, finding that the work performed by the contracted personnel met the definition of contact tracing provided by the Centers for Disease Control and Prevention (CDC), and thus, was ineligible for PA per FEMA policy.[5] FEMA explained that the contracted personnel gathered information for multiple purposes, mainly to meet reporting requirements and functions tied to contact tracing. FEMA found that even though some of the data was used to prepare content to disseminate information to the public, this was not the primary work performed by the contracted personnel, and thus, the cost remained ineligible as it was not directly tied to the performance of eligible emergency work.

Second Appeal

In a letter dated August 12, 2024, the Applicant filed a second appeal, reiterating previous arguments and its request for $328,860.31.[6] In addition, the Applicant expands on its prior assertion that the contracted personnel did not perform contact tracing. The Applicant states that the CDC distinguishes between “case investigation” and “contact tracing” in its definitions. According to the Applicant, gathering COVID-19 information, such as symptoms, onset of illness, location, and potential sources of exposure, is aligned with the CDC definition of “case investigation,” which focuses on patients with confirmed and probable diagnoses of COVID-19.[7] In contrast, the Applicant states that contact tracing focuses on individuals who have been exposed to patients and begins when communication with a patient’s contacts occurs.[8] The Applicant states that the contracted personnel did not reach out to or gather data on the contacts of patients with COVID-19 diagnoses and instead limited its work to the COVID-19 patients themselves. The Recipient forwarded the Applicant’s second appeal in a letter dated August 21, 2024, in support of the Applicant’s position.

Discussion

FEMA is authorized to provide assistance for emergency protective measures to save lives and protect public health and safety.[9] 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.[10]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; eligible medical care activities, including work and associated costs to support the distribution and administration of COVID-19 vaccines; and communications of general health and safety information to the public.[11] FEMA may only provide assistance in response to COVID-19 declared events that is provided in accordance with a COVID-19 specific policy.[12] To be eligible, costs must be directly tied to the performance of eligible work.[13]Short-term increased operating costs that are directly related to accomplishing specific emergency health and safety tasks as part of emergency protective measures may be eligible, provided certain FEMA policy requirements are met.[14]

Here, the Applicant requests PA funding for costs associated with contracted personnel who interviewed COVID-19 patients. The Applicant explains the contracted personnel interviewed COVID-19 patients to gather information such as symptoms and potential sources of exposure and evaluate guidance and outbreaks of COVID-19 with multiple purposes, including COVID-19 control strategies and messaging its citizens. In its second appeal, the Applicant argues that the duties performed by the contracted personnel should not be classified as contact tracing but instead as case investigation as defined by the CDC. Nevertheless, the duties performed by the contracted personnel are not considered eligible medical care, or otherwise eligible work provided under any of FEMA’s COVID-19 policies.[15] Although the Applicant claims that the contracted personnel performed work that was used for vaccination efforts, EOC operations, and public health and safety communications, the Applicant has not demonstrated that the contracted personnel performed the eligible work such as administering vaccines, directing or coordinating resource and response activities for COVID-19 declarations as part of EOC operations, or creating messages to disseminate COVID-19 public information. Even though the use of researched information to create messages related to COVID-19 could be eligible for PA funding as disseminating public information regarding health and safety measures, the documentation submitted does not clarify if the employees at issue created COVID-19 public health messages or collected the data for other personnel to create the messages. Similarly, the information provided does not distinguish the time spent collecting information specific for creating COVID-19 related messaging nor the time spent creating the COVID-19 messaging. Finally, although the Applicant states the cost of the contracted personnel met the definition of eligible increased operating costs, the duties performed by the Applicant’s contracted personnel are aligned with ineligible increased operating costs, as they are not directly related to accomplishing emergency protective measures eligible for PA under the COVID-19 declaration. 

Conclusion

The Applicant has not demonstrated the cost for the contracted personnel is directly tied to the performance of emergency protective measures eligible for PA funding under the COVID-19 declaration.