Legal Responsibility, Evacuation, Medical Care, and Sheltering

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4464
Applicant	Coastal Carolina University
Appeal Type	Second
PA ID#	000-UBWIX-00
PW ID#	PW 203
Date Signed	2022-01-18T17:00:00

Summary Paragraph

On September 2, 2019, Coastal Carolina University (Applicant) closed its campus in response to Hurricane Dorian.  That same day, several athletic teams departed from the campus to various non-congregated shelters/hotels.  The Applicant initially claimed a cost of $195,403.76 for evacuation, sheltering at non-congregated shelters/hotels, transportation, and meals.  FEMA subsequently denied all evacuation and sheltering costs, finding the Applicant did not have legal responsibility.  The Applicant appealed, contending that FEMA previously established that the Applicant was a local government entity established under South Carolina law, and has the legal right to provide safety to its students.  FEMA Region IV denied the appeal, finding the Applicant did not have legal responsibility to provide evacuation and sheltering for its student-athletes and the actions undertaken did not constitute eligible emergency protective measures, because the student-athletes’ departure from the campus appeared to be an effort to maintain the teams’ competition schedule, not to provide shelter from the storm.  The Applicant’s second appeal reiterates its prior arguments and requests $64,776.07 for meals, transportation, and non-congregate accommodation expenses, for its student-athletes.

Authorities and Second Appeals

• Stafford Act § 403(a)(3).
• 44 C.F.R. §§ 206.223(a)(3), 206.225(a).
• PAPPG, at 19-20, 42, 58, 60-61, 63, 65-67.

Headnotes

• The Stafford Act grants FEMA discretionary authority to provide assistance that is essential to meet immediate threats to life and property resulting from a disaster.  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.

• The Applicant has not demonstrated that its costs to provide transportation, lodging, and meals to its athletic teams between athletic events are eligible emergency protective measures resulting from an immediate threat. 

• Per 44 C.F.R. § 206.223(a)(3), to be eligible for financial assistance, a project or item of   work must be the legal responsibility of an eligible applicant at the time of the disaster. FEMA policy establishes that to determine legal responsibility for emergency work, FEMA evaluates whether the applicant requesting the assistance either has jurisdiction over the area or the legal authority to conduct the work related to the request.

• FEMA finds that the Applicant had legal responsibility to ensure the safety and well-being of its student population, while under its care or jurisdiction.

Conclusion

The Applicant was legally responsible for its students, but did not demonstrate that the evacuation and sheltering costs for its student-athletes are eligible emergency protective measures resulting from an immediate threat.  Accordingly, this appeal is denied.

Appeal Letter

Appeal Analysis

Background

From August 31 to September 6, 2019, Hurricane Dorian caused damage throughout South Carolina.  On September 2, 2019, South Carolina’s Governor issued an executive order (effective until its September 6, 2019 rescission) closing state government offices, colleges, and universities in all six coastal counties, including Horry County where the Coastal Carolina University (Applicant) is located.  That same day, the Applicant’s football team, volleyball team, men’s and women’s track teams, women’s and men’s golf teams, and women’s and men’s soccer teams departed from the campus to various hotels.

At the time of the disaster, the Applicant’s emergency procedures required all students residing on-campus to complete Personal Evacuation Plans (PEPs) prior to the start of a semester.  Rather than activating PEPs and self-evacuating like the general student population, student-athletes for seven of the Applicant’s athletic teams traveled to various hotels together prior to athletic competitions that were pre-scheduled, rescheduled, or cancelled.[1]  The Applicant requested $195,403.76 in Public Assistance (PA) for evacuation, sheltering at non-congregated shelters/hotels, transportation, and meals. 

FEMA issued a Determination Memorandum (DM) on July 13, 2020, denying reimbursement for these costs.  FEMA concluded that the costs for providing transportation, sheltering, and meals were not the legal responsibility of the Applicant, but rather of the local government, and consequently, those expenses were ineligible for PA funding.[2]

First Appeal

The Applicant submitted its first appeal in a letter dated September 11, 2020, stating that FEMA incorrectly determined that the Applicant did not have legal responsibility to evacuate and provide shelter to its student-athletes.  In addition, the Applicant asserted that FEMA previously found that the Applicant was a local government entity established under South Carolina law, and consequently it has legal responsibility to protect the safety of its students.

The Applicant contended that its efforts to comply with FEMA’s requirement to obtain prior approval for non-congregate sheltering were unsuccessful due in part to the conflicting information received from FEMA and the South Carolina Emergency Management Division (Grantee) as to which entity was the appropriate one to submit the required documentation for pre-approval.  Due to time constraints the Applicant proceeded with the evacuation process without obtaining prior approval.  The Grantee transmitted the first appeal along with a letter of support on November 5, 2020.

The FEMA Region IV Regional Administrator denied the appeal on June 3, 2021, stating that the Applicant did not have legal responsibility to provide evacuation and sheltering for its student-athletes and the actions undertaken did not constitute eligible emergency protective measures, because the student-athletes’ departure from the campus appeared to be an effort to maintain the teams’ competition schedule, not to provide shelter from the storm.

Second Appeal

In its August 1, 2021 second appeal letter, the Applicant requests funding for $64,776.07.[3]  The Applicant reiterates its prior arguments and states that FEMA previously found that the Applicant had legal responsibility before erroneously determining that the local government had the sole legal obligation to provide evacuation and sheltering.  The Applicant also emphasizes that the expenses are related to the evacuation due to the disaster, rather than any previously scheduled athletic event, and are not operational expenses.  In a transmittal letter dated September 30, 2021, the Grantee expresses support for the appeal.

 

Discussion

FEMA is authorized to provide assistance for emergency protective measures to save lives or to protect public health and safety.[4]  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.[5]  Eligible emergency protective measures may include evacuation and sheltering.[6]  Increased costs of operating a facility or providing a service are generally not eligible, even when directly related to the incident.[7]  To be eligible for financial assistance, a project or item of work must be required as a result of the incident and must be the legal responsibility of an eligible applicant at the time of the disaster.[8]  To determine legal responsibility for emergency work, FEMA evaluates whether the applicant requesting the assistance either has jurisdiction over the area or the legal authority to conduct the work related to the request.[9]  

FEMA finds that the Applicant had authority to evacuate and shelter its students and legal responsibility to ensure the safety and well-being of its student population, while under its care and jurisdiction.[10]  However, the Applicant did not incur the claimed costs to evacuate and shelter those students unable to self-evacuate according to their PEP, but instead incurred expenses to transport and lodge its athletic teams between sporting events at multiple venues.  Although the Applicant amended its request to exclude costs beyond $15.00 per night, per person, for lodging, it has not justified the difference between how the student-athletes were evacuated and sheltered, compared to the general student population.[11]  FEMA cannot determine the eligibility of these costs because the Applicant has not shown that its emergency protective measures were required due to an immediate threat resulting from the declared incident.  The Applicant has not demonstrated that its decision to provide transportation, hotel lodging, and bulk meals for its student-athletes, regardless of their PEP status, was required in order to respond to an immediate threat resulting from the declared incident, rather than to keep the teams together and maintain their competitive schedules.   

 

Conclusion

The Applicant was legally responsible for its students, but did not demonstrate that the evacuation and sheltering costs for its student-athletes are eligible emergency protective measures resulting from an immediate threat.  Therefore, this appeal is denied.

 

[1] The Football team stayed at Embassy Suites Hotel in Greenville, SC before leaving to participate in a game in Lawrence, KS scheduled for September 7.  The Men’s and Women’s Track teams stayed at the Courtyard Hotel in Charlotte, NC from September 2-8, during which time a competition scheduled for September 7, 2019 in Charleston, SC was cancelled.  The Men’s Soccer team stayed at the Hilton Hotel at Charlotte, NC from September 2-9, 2019 and played a game in Charlotte on September 6, 2019.  The Men’s Golf team stayed at Fairfield Inn at Cartersville, GA from September 2-3, 2019, and Hampton Inn at Madison, WI, from September 3-6, 2019 before leaving to participate in golf invitational in Madison, WI.  The Women’s Golf Team stayed at Columbia Marriott, SC from Sep. 2-8, 2019, prior to a competition in Toledo, OH on September 16, 2019.  The Volleyball team stayed at Holiday Inn Express & Suites in Greensboro, NC, from September 2-7, 2019, prior to an event in Greensboro, but no longer requests reimbursement for these costs on second appeal.  The Women’s Soccer team stayed at the Courtyard in Charlotte, NC from September 2-8, 2019, while participating in pre-scheduled or rescheduled matches in Rock Hill, SC on September 6 and Boiling Springs, NC on September 8.

[2] Determination Memorandum, Coastal Carolina University, FEMA-4464-DR-SC, at 1 (July 13, 2020) [hereinafter

DM].

[3] The Applicant explains that the amended amount excludes travel and lodging costs that would have been incurred for the athletic events regardless of the disaster, costs associated with student-athletes who may have been able to activate their PEPs but still traveled with the teams, and lodging costs above and beyond what would have been incurred for sheltering the students at another univerisity. 

[4] Robert T. Stafford Disaster Relief and Emergency Assistance Act § 403(a)(3), Title 42, United States Code § 5170b(a)(3) (2018); Title 44 Code of Federal Regulations (44 C.F.R.) § 206.225(a)(1) (2018).

[5] 44 C.F.R. §§ 206.223(a)(1), 206.225(a)(3)(i); Public Assistance Program and Policy Guide, FP 104-009-2, at 19 (Apr. 1, 2018) [hereinafter PAPPG].

[6]Id. at 58, 65.  

[7] Id. at 42, 60-61, 63

[8] 44 C.F.R. § 206.223(a)(1) and (3).

[9] PAPPG, at 20.

[10] Id. at 20.

[11] Compare with FEMA Second Appeal Analysis, Coastal Carolina Univ., FEMA-4464-DR-SC, at 1, 3 (Dec. 1, 2021) (noting that the Applicant worked with its student population to maximize self-evacuations using PEPs before seeking alternative sheltering opportunities at a cost of $15.00 per person, per night at another university for the small number of remaining students who were unable to self-evacuate).