Ineligible Costs, Appeals

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4337
Applicant	Polk County Sheriff's Office
Appeal Type	Second
PA ID#	105-0EF37-00
PW ID#	PW 3314 GMP 22698
Date Signed	2021-10-20T16:00:00

Summary Paragraph

Hurricane Irma struck Florida on September 10, 2017.  The Polk County Sheriff’s Office (Applicant) utilized force account labor (FAL) to perform emergency protective measures and requested $1,023,579.49 in PA.  FEMA approved $783,469.38 but denied $240,110.11 in costs associated with duties which FEMA considered increased operating costs.  The Applicant appealed for $240,110.11.  On March 23, 2021, FEMA Region IV Regional Administrator (RA) responded to the first appeal, determining that certain activities initially denied may be eligible, and directed the Region’s PA branch to reimburse the items if corroborated by activity logs; all other FAL costs remained ineligible.  In its May 20, 2021 second appeal, the Applicant repeats first appeal arguments and states FEMA forced it to submit the second appeal to preserve its right to contest FEMA’s determination. 

Authorities and Second Appeals

• Stafford Act §§ 403.
• 44 C.F.R. § 206.225(a).
• PAPPG (v 3.1) at 25-26, 42, 76, 79.

 

Headnotes

• Section 403 of the Stafford Act authorizes FEMA to provide assistance that is essential to meet immediate threats to life and property resulting from a disaster.  44 C.F.R. § 206.225(a) authorizes reimbursement for emergency protective measures necessary to eliminate or lessen immediate threats to life, public health, and safety, as well as threats of significant additional damage to improved property. 
• Increased costs of operating a facility or providing a service are generally not eligible, even when directly related to the incident.  FEMA provides PA funding for costs related to stand-by time incurred in preparation for, and directly related to, actions necessary to save lives and protect public health and safety.
  • Detention security/support and continued and maintained security, routine patrol work and increased supervision activities are ineligible increased operating costs.  The stand-by staff did not exclusively perform emergency work specific to the disaster or outside of their everyday scope of responsibilities, so it is not eligible.

Conclusion

FEMA notified the Applicant in a June 21, 2021 email of $47,661.82 in eligible costs.  All other claimed work and associated costs found ineligible in the first appeal decision are denied because they are not eligible emergency protective measures.

 

Appeal Letter

Appeal Analysis

Background

Hurricane Irma struck Florida on September 10, 2017.  The Polk County Sheriff’s Office (Applicant) utilized force account labor (FAL) to perform emergency protective measures and claimed $1,023,579.49 in costs.  FEMA prepared Grants Manager Project (GMP) 22698/Project Worksheet (PW) 3314 to document the work and reimburse eligible costs.  FEMA approved $783,469.38 but denied $240,110.11 in costs associated with duties which FEMA considered increased operating costs, including patrolling, inmate security, traffic control, and stand-by time.

 

First Appeal

The Applicant appealed on November 8, 2019 for $240,110.11.  The Applicant based the appeal on FEMA computing errors and flawed methodology and addressed activities found ineligible including stand-by time, inmate security, patrolling and traffic control, and curfew violations and supervision.  The Applicant submitted a spreadsheet and cited ICS 214 forms (activity logs) in support of its position.  The Florida Division of Emergency Management (Grantee) supported the Applicant’s appeal in its December 30, 2019 transmittal letter.

The FEMA Region IV Regional Administrator (RA) partially granted the appeal on March 23, 2021.  FEMA acknowledged the additional information provided by the Applicant and determined that certain activities initially denied as increased operating costs may be eligible but continued to find costs associated with stand-by time, activities not directly associated with transportation of inmates to the temporary facility, patrolling, traffic control and increased supervision were ineligible increased operating costs.  The RA directed the Region’s Public Assistance (PA) Branch to review the available documentation and reimburse the potentially eligible items if corroborated by activity logs.

 

Second Appeal

The Applicant filed a second appeal on May 20, 2021 and reiterates its arguments made on first appeal.  The Applicant contends FEMA’s failure to provide specific information regarding eligible and ineligible costs interferes with its procedural due process and violates FEMA’s duty to render a full decision in the appeal.  As a result, its appeal includes all disputed costs ($240,110.11).  The Grantee’s July 16, 2021 transmittal supports the second appeal. 

FEMA subsequently emailed the Applicant on June 21, 2021, stating that it found eligible work, including packing, situating, and distributing sandbags; responding to, clearing, and safeguarding downed trees, power lines, flooded roads, and other storm debris, rerouting traffic around storm-compromised roads, and transporting citizens from danger.  Accordingly, $47,661.82 in associated costs were found eligible for PA reimbursement.  FEMA also informed the Applicant that other work activities remained ineligible.[1]  These included: (1) detention security/support and continued and maintained security not directly associated with the transporting inmates to the temporary facility and not specifically related to inmate relocation; (2) routine patrol work not directly related to accomplishing specific emergency health and safety tasks; and, (3) increased supervision activities not necessary to immediately protect lives, health, safety, or improved property.  Finally, FEMA determined that stand-by staff did not exclusively perform emergency work specific to the disaster or outside of their everyday scope of responsibilities, so stand-by time is not eligible. 

Because, subsequent to receipt of the Applicant’s second appeal submission, FEMA found a portion of these costs eligible, $47,661.82, this appeal response will address the remaining $192,448.29 in requested costs.    

 

Discussion

Ineligible Costs, Force Account Labor & Equipment Costs

FEMA may provide assistance that is essential to eliminate or lessen immediate threats to life, public health, and safety, as well as threats of significant additional damage to improved property resulting from a disaster.[2]  FEMA provides PA funding for costs related to stand-by time incurred in preparation for, and directly related to, actions necessary to save lives and protect public health and safety.[3]  FEMA determines if stand-by time claimed is reasonable and necessary based on whether there is a contractual obligation to pay for stand-by time based on a labor agreement and whether the stand-by time occurred when it was necessary to have resources available to save lives and protect health and safety.[4]  

Increased costs of operating a facility or providing a service are generally not eligible, even when directly related to the incident; however, short-term increased costs that are directly related to accomplishing specific emergency health and safety tasks as part of emergency protective measures may be eligible.[5]  If the Applicant provides essential community services at a facility that is unsafe, inaccessible, or destroyed as a result of the incident, temporary relocation of these services to another facility is eligible.[6]  Eligible work or costs associated with the provision of temporary facilities include moving expenses to and from the temporary facility.[7] 

According to the Applicant,[8] some stand-by staff reported for duty before hurricane conditions became too dangerous to drive.  Others staged at an operation site to be available to provide relief or were required to report to duty before/after normal shift to insure proper staffing.  Most were simply on stand-by status.  These staff did not exclusively perform emergency work specific to the disaster or outside of their everyday scope of responsibilities, therefore the requested stand-by time is ineligible.  Some staff provided detention security support beyond their regular shifts and others were required to report to duty before/after normal shift to ensure proper staffing.  These staff and others not directly associated with inmate relocation are ineligible, as are patrol staff that worked beyond their regular shift but did not perform duties that others on patrol performed, such as clearing and/or safeguarding downed trees and power lines.  Finally, increased supervisory activities are not shown as necessary to immediately protect lives, health, safety or improved property and are instead due more to an increase in personnel needed to perform regular police services and are ineligible. 

 

Conclusion

FEMA notified the Applicant in a June 21, 2021 email of $47,661.82 in eligible costs.  All other claimed work and associated costs found ineligible in the first appeal decision are denied because they are not eligible emergency protective measures. 

 

 

[1] Email from Pub. Assistance Program Delivery Manager, Orlando Processing Center, FEMA Region IV, to Director-Fiscal Services Division, Polk County Sheriff’s Office, at 2-3 (June 21, 2021, 12:44 p.m.).

[2] The Robert T. Stafford Disaster Relief and Emergency Assistance Act, § 403(a), 42 U.S.C. § 5170b (2016); 44 C.F.R. § 206.225(a).

[3] Public Assistance Program and Policy Guide, FP 104-009-2, at 25 (Apr. 2018) [hereinafter PAPPG].

[4] PAPPG, at 25-26.

[5] Id. at 42. 

[6] Id. at 76.

[7] Id. at 79.

[8] Subrecipient First Appeal Letter from Executive Director, PCSO, to Appeal Officer, FDEM, attachment Exhibit E (Nov. 8, 2019).