Legal Responsibility

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4587
Applicant	The Center for Housing Solutions, Inc.
Appeal Type	Second
PA ID#	143-U69K5-00
PW ID#	GMP 182968
Date Signed	2023-03-14T16:00:00

Summary Paragraph

From February 8-20, 2021, a severe winter storm affected the State of Oklahoma. The Center for Housing Solutions, Inc. (Applicant), a Private Nonprofit (PNP), requested $2,878,429.90 in Public Assistance (PA) funding for the cost of sheltering and associated services provided to homeless individuals during the storm. The associated services included force account labor, materials, contracted services, and equipment. In a Determination Memorandum, FEMA denied PA funding, stating that the Applicant did not have legal responsibility to provide the services claimed. The Applicant appealed, explaining that Tulsa County assigned it as the lead agency for the homeless response plan for the City of Tulsa and Tulsa County, and that it signed agreements with the beforementioned local governments. The Oklahoma Department of Emergency Management and Homeland Security (Recipient) transmitted the appeal with its support. The FEMA Region 6 Regional Administrator denied the first appeal. FEMA found that the Applicant executed emergency protective measures that it had no legal responsibility to perform. Additionally, FEMA stated that the City of Tulsa and Tulsa County were the entities responsible for sheltering. The Applicant submitted its second appeal with a letter from the City of Tulsa, wherein the City explained that it requested the Applicant provide emergency shelter. The Recipient transmitted the Applicant’s second appeal asserting that FEMA noted in its First Appeal Determination that the City of Tulsa and Tulsa County are the potential applicants responsible for the sheltering, and that the City of Tulsa is willing to request reimbursement for this project.

Authorities and Second Appeals

• 44 C.F.R. § 206.223(a)(3). 
• PAPPG, at 112-113.
• FP 104-009-18, at 3 (Non-congregate Sheltering (NCS) Policy).

Headnotes

• To be eligible for financial assistance, an item of work must be the legal responsibility of an eligible applicant. Emergency services are usually the responsibility of a government entity. When a PNP provides emergency services at the request of the legally responsible government entity, FEMA provides PA funding through that government entity as the eligible applicant.
  • Here the Applicant, as a PNP, is not eligible for direct reimbursement of sheltering and associated services costs provided to homeless individuals during the storm.

Conclusion

FEMA finds that sheltering and its associated costs are reimbursable only to legally responsible government entities, and the Applicant, as a PNP, is not eligible for direct reimbursement of these costs. Therefore, this appeal is denied.

Appeal Letter

Appeal Analysis

Background

From February 8-20, 2021, a severe winter storm affected the State of Oklahoma. The Center for Housing Solutions, Inc. (Applicant), a Private Nonprofit (PNP) that administers low-income housing, requested $2,878,429.90 in Public Assistance (PA) funding for the reimbursement of force account labor, materials, and contract costs associated with operating congregate and non-congregate sheltering (NCS). The Applicant claimed it provided sheltering in local hotel rooms to homeless individuals from February to July 2021, and coordinated associated services such as transportation for the homeless individuals to the shelters, cleaning of the shelters, and minor repairs to habilitate one of the hotels. Also, the Applicant stated that the sheltering services were provided at the request of the City of Tulsa and that it entered into an agreement to that end with the State of Oklahoma. FEMA prepared Grants Manager Project (GMP) 182968 to document the work and costs associated with the Applicant’s claim.

In a Determination Memorandum, FEMA denied PA funding for all project costs and stated that the Applicant did not have legal responsibility to provide the services claimed. Specifically, FEMA stated that FEMA policy states that emergency services are the responsibility of State, Local, Territorial, or Tribal (SLTT) governments, and if a PNP provides emergency services at the request of, and certified by, the legally responsible government entity, FEMA provides PA funding through that government entity as the eligible Applicant.

First Appeal

The Applicant submitted its first appeal in a letter dated April 14, 2022. The Applicant explained that Tulsa County assigned it as the lead agency for the homeless response plan for the City of Tulsa and Tulsa County. Additionally, it stated that the City implemented an Emergency Operations Plan in response to the disaster, which gave the Applicant legal responsibility for the claimed work. In support, the Applicant provided a sole source designation signed by the City of Tulsa’s Chief Operating Officer in April 2021 and press releases issued by the City during the incident period providing updates of the warming stations and shelters’ operations, among other items. Additionally, the Applicant claimed that a State-Local Agreement dated May 25, 2021, was approved, and signed by the State Coordinator to provide shelter services to the homeless. On June 14, 2022, the Oklahoma Department of Emergency Management and Homeland Security (Recipient) transmitted the appeal with its support.

The FEMA Region 6 Regional Administrator denied the first appeal. FEMA found that the Applicant did not have legal responsibility to perform emergency protective measures. FEMA stated that the Applicant was not tasked to provide NCS and the City of Tulsa and Tulsa County were the entities responsible for sheltering.

Second Appeal

On December 27, 2022, the Applicant submitted its second appeal. The Applicant provides a letter from the City of Tulsa, asserting the letter supports its claim of legal responsibility for the work at issue. In the letter, the City of Tulsa indicates that it requested the Applicant provide homeless individuals access to emergency shelter. Additionally, it indicates its willingness to apply for PA for the work at issue, if FEMA finds that the Applicant is not eligible. In a letter signed on January 13, 2023, the Recipient transmitted the Applicant’s second appeal. The Recipient states that it concurs with the Applicant on project eligibility. However, as suggested by FEMA in the first appeal decision, the Recipient also agrees that the City of Tulsa should develop a project to claim these costs, as it would be the appropriate applicant.

 

Discussion

To be eligible for PA funding, an item of work must be the legal responsibility of an eligible applicant.[1] Emergency services are usually the responsibility of SLTT governments.[2] Therefore, PNPs are generally not legally responsible for those services and FEMA does not provide PA funding to PNPs for the costs associated with providing those services.[3] Legally responsible SLTT governments may enter into formal agreements or contracts with private entities, including PNP organizations, to conduct sheltering activities when necessary as an emergency protective measure in response to a declared incident.[4] When a PNP provides emergency services at the request of, and certified by, the legally responsible government entity, FEMA provides PA funding through that government entity as the eligible applicant.[5] In these cases, PA funding is provided to the government entity legally responsible for sheltering, which may then reimburse a private organization for the cost of providing those services under the agreement or contract.[6]

Here, the Applicant requested reimbursement for costs to shelter homeless individuals and other associated expenses. On second appeal, the Applicant submitted a letter from the City of Tulsa where it explained that the Applicant provided the sheltering and associated services at the City’s request. However, FEMA policy states that reimbursement of sheltering costs is provided through a legally responsible government entity as the eligible applicant, not directly to the PNP. The Applicant, as a PNP, is not eligible for direct sheltering cost reimbursement. Consequently, even if the Applicant provided the sheltering and its associated services at the request of the City of Tulsa, FEMA policy does not contemplate providing funding directly to this Applicant.

 

Conclusion

FEMA finds that sheltering and its associated costs are reimbursable only to legally responsible government entities, and the Applicant, as a PNP, is not eligible for direct reimbursement of these costs. Therefore, this appeal is denied.

 

[1] Title 44 Code of Federal Regulations (44 C.F.R.) § 206.223(a)(3) (2020).

[2] Public Assistance Program and Policy Guide, FP 104-009-2, at 112 (June 1, 2020) [hereinafter PAPPG].

[3] Id.

[4] FEMA Policy 104-009-18, FEMA Emergency Non-Congregate Sheltering during the COVID-19 Public Health Emergency (Interim) (Version 3), at 3 (Jan. 29, 2021) [hereinafter NCS Policy]. Due to the coronavirus (COVID-19) pandemic, FEMA provided flexibility to applicants to take measures to safely conduct non-congregate sheltering activities for incidents issued a Stafford Act declaration on or after June 1, 2020 through June 30, 2021. NCS Policy, at 1.   

[5] PAPPG, at 112-113.

[6] PAPPG, at 120; NCS Policy, at 1, 3.