Request for Public Assistance – Request for Public Assistance – Time Limitations/Extensions

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster4337
ApplicantFlorida Polytechnic University
Appeal TypeSecond
PA ID#105-UXO5F-00
PW ID#RPA
Date Signed2021-05-26T16:00:00

Summary Paragraph

Hurricane Irma damaged the Florida Polytechnic University’s (Applicant) campus in September 2017.  As a state institution, the Applicant was insured under the State Risk Management Trust Fund, managed by the Florida Division of Risk Management (FDRM).  The Applicant reported damages to FDRM but did not initially contact the Florida Division of Emergency Management (Grantee).  The Grantee provided guidance and applicant briefing schedules to all impacted counties on September 25, 2017, but it did not contact the Applicant directly.  The extended deadline for Request for Public Assistance (RPA) submissions expired November 21, 2017.  The Applicant and FDRM negotiated settlement offers through December 7, 2018.  The Applicant contacted FEMA for the first time in November 2018.  FEMA informed the Applicant that the RPA deadline expired one year prior.  The Applicant submitted an RPA and deadline extension request to the Grantee on May 17, 2019.  The Applicant argued that this was its first disaster, FDRM did not direct it to contact the Grantee or FEMA, and initial damage reports did not reveal the extent of repair costs.  The Grantee submitted the RPA and extension request to FEMA on June 25, 2019.  FEMA denied the request on July 16, 2019, finding that the Applicant had not demonstrated extenuating circumstances beyond its control to support approval of a late RPA.  The Applicant appealed, reiterating its RPA extension request arguments.  The FEMA Region IV Regional Administrator denied the appeal, finding that neither the Applicant nor the Grantee demonstrated extenuating circumstances outside of their control justifying the submission of the Applicant’s RPA 18 months after the RPA deadline.  In its second appeal, the Applicant reiterates the arguments raised in its RPA extension request and first appeal.

Authorities and Second Appeals

  • Stafford Act § 301.
  • 44 C.F.R. § 206.202.
  • PAPPG, at 130.
  • North Miami Beach Medical Center, FEMA-4337-DR-FL, at 3; Kapoho Kai Water Association, FEMA-4366-DR-HI, at 2-3.

Headnotes

  • The Stafford Act provides that FEMA may grant a waiver of administrative conditions “if the inability to meet them is a result of the major disaster.”
    • Neither the Applicant nor the Grantee have demonstrated that the late transmittal was related to the disaster, so Section 301 of the Stafford Act does not apply.
  • Grantees are responsible for ensuring that potential applicants are aware of available PA and timely submitting documents necessary for the award of grants.  FEMA may extend submission deadlines if the grantee requests an extension and provides justification, based on extenuating circumstances beyond the grantee’s or applicant’s control, in writing.
    • Neither the Applicant nor the Grantee demonstrated that extenuating circumstances beyond either’s control prevented timely submission of an RPA.

Conclusion

Neither the Applicant nor the Grantee has demonstrated that extenuating circumstances beyond either’s control prevented timely submission of an RPA.  Therefore, the Applicant’s second appeal is denied.

Appeal Letter

Kevin Guthrie

Director

Florida Division of Emergency Management

2555 Shumard Oak Blvd.

Tallahassee, Florida 32399-2100

 

Re:  Second Appeal – Florida Polytechnic University, PA ID: 105-UXO5F-00, FEMA-4337-DR-FL, Request for Public Assistance – Request for Public Assistance – Time Limitations/Extensions

 

Dear Mr. Guthrie:

This is in response to your letter dated September 29, 2020, which transmitted the referenced second appeal on behalf of Florida Polytechnic University (Applicant).  The Applicant is appealing the U.S. Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of its Request for Public Assistance (RPA) deadline extension request.  

As explained in the enclosed analysis, I have determined that neither the Applicant nor the Florida Division of Emergency Management has demonstrated that extenuating circumstances beyond either’s control prevented timely submission of an RPA.  Therefore, this appeal is denied.

Please inform the Applicant of my decision.  This determination is the final decision on this matter pursuant to 44 C.F.R. § 206.206, Appeals.

 

                                                                      Sincerely,

                                                                         /S/

                                                                       Ana Montero

                                                                       Division Director

                                                                       Public Assistance Division

 

Enclosure

cc:  Gracia Szczech

Regional Administrator

FEMA Region IV

Appeal Analysis

Background

Hurricane Irma made landfall in Florida on September 10, 2017 and was declared a major disaster that same day.  The incident period for the disaster was September 4 through October 18, 2017.  The disaster caused damage to the Florida Polytechnic University (Applicant) campus, including damage to its Innovation, Science, and Technology (IST) Building.

As a state institution, the Applicant was insured as a participant in the State Risk Management Trust Fund, which was managed by the State of Florida Division of Risk Management (FDRM).  The Applicant contacted FDRM to report disaster damages but did not initially contact the Florida Division of Emergency Management (Grantee).  The Grantee provided guidance and an applicant briefing schedule to all impacted Florida counties on September 25, 2017, but did not contact the Applicant directly.  There is no record of the Applicant attending an applicant briefing. 

The Applicant began recording damages and met with two insurance adjusters in September 2017.  The Applicant received the first engineering report regarding damages to its IST Building on November 20, 2017.  On November 21, 2017, the extended deadline for Request for Public Assistance (RPA) submissions expired.[1]  The Applicant and FDRM engaged in discussions regarding disputed damage estimates from November 22, 2017 through December 7, 2018.  FDRM submitted a net claim offer on November 2, 2018, with multiple coverage exclusions, an increased net offer on November 28, 2018, with a recommendation that the Applicant reach out to FEMA to fill in coverage gaps, and a final increased net claim offer on December 7, 2018.  The Applicant contacted FEMA by telephone in November 2018.[2]  The Applicant recounts that a FEMA employee advised the Applicant that the deadline had expired in November 2017 and no recourse was available to request an extension or otherwise submit an RPA.

After making its own determination that the RPA deadline could be extended, the Applicant filled out an RPA dated March 20, 2019, seeking Public Assistance (PA) funding to cover the approximate $1,500,000.00 coverage gap between its own damage estimate and FDRM’s December 7, 2018 increased net claim offer.  The Applicant submitted its RPA, along with a claim of extenuating circumstances, to the Grantee in a request for a deadline extension on May 17, 2019.  The Applicant argued that Hurricane Irma was its first disaster experience, FDRM did not affirmatively advise the Applicant that it should contact the Grantee or anyone else, and initial damage reports did not fully reveal the extent of repair costs.  The Applicant stated that it believed that all costs would be covered by FDRM prior to receiving FDRM’s November 2, 2018 net claim offer.  The Grantee submitted the Applicant’s RPA and extension request to FEMA on June 25, 2019.

FEMA denied the Applicant’s request for an RPA filing extension on July 16, 2019, citing that the Applicant had not demonstrated extenuating circumstances beyond its control to support approval of a late RPA.

 

First Appeal

The Applicant submitted a first appeal letter dated September 3, 2019, reiterating the arguments from its RPA extension request letter and likening its situation to second appeal decisions from 2005-2009 where FEMA previously approved extending RPA deadlines based on misinformation regarding deadlines, delay of Small Business Administration (SBA) determinations that were prerequisites for receiving PA funding, and unresolved legal responsibility issues.[3]  The Applicant contended that its own delay was similarly justified because: (1) FDRM did not correct its assumption that it would automatically be included in any state-administered federal aid programs until November 2018; (2) its need for PA funding was contingent on the pending resolution of an insurance settlement with FDRM; and (3) there were unresolved issues regarding whether FDRM should pay for all of the repairs.  In a transmittal letter dated September 30, 2019, the Grantee expressed support for the appeal.

The FEMA Region IV Regional Administrator (RA) denied the first appeal in a June 18, 2020 decision, finding that neither the Applicant nor the Grantee demonstrated extenuating circumstances outside of their control justifying the late RPA submission.

 

Second Appeal

The Applicant submits its second appeal by letter dated August 13, 2020.  The Applicant reiterates the arguments raised in its first appeal, emphasizing that this was its first disaster and that FEMA misinformed the Applicant in November 2018 about its ability to submit an RPA after the deadline had expired, which led to further delay.  In a transmittal letter dated September 29, 2020, the Grantee expresses support for the appeal and notes that FEMA never defines what would constitute an extenuating circumstance beyond the Applicant’s control.

 

Discussion

Section 301 of the Robert T. Stafford Disaster Relief and Emergency assistance Act (Stafford Act) provides that FEMA may grant a waiver of administrative conditions “if the inability to meet [them] is a result of the major disaster.”[4]  Grantees serve as the grant administrator for funding administered under the PA Program.[5]  Grantee responsibilities include ensuring that all potential applicants are aware of available PA and submitting documents necessary for the award of grants.[6]  Grantees must submit an applicant’s completed RPA to the FEMA RA within 30 days after designation of the area where the damage occurred.[7]  FEMA may extend this deadline if the grantee requests an extension and provides justification for it in writing.[8]  The justification must be based on extenuating circumstances beyond the grantee’s or applicant’s control.[9]  FEMA’s expectation is that the grantee collect RPAs as soon as possible after the respective area is designated in the declaration or at the conclusion of the applicant briefing.[10]

Neither the Applicant nor the Grantee have demonstrated that the late transmittal was related to the disaster, which occurred more than 21 months before the Grantee submitted the Applicant’s RPA to FEMA.  Thus, Section 301 of the Stafford Act does not apply.

It is the Grantee’s responsibility, not FEMA’s or FDRM’s, to ensure the Applicant is aware of available PA,[11] and here the Grantee offers no extenuating circumstances beyond its control to explain why the Applicant was not contacted about potential PA funding.  The Applicant did not reach out to the Grantee until more than 14 months after the disaster and did not pursue federal funding for an additional six months after receiving notice of the need to contact FEMA to apply for federal funding.  The Applicant asserts that this delay was the result of FEMA informing it in November 2018 that the RPA deadline had expired one year prior.  However, neither the Applicant’s lack of knowledge or understanding of the PA Program, nor its assertions of misinformation or misdirection, are circumstances outside of its or the Grantee’s control.[12]

The facts of this appeal are distinguishable from the unresolved legal responsibility issue and pending Small Business Administration determinations in the second appeal decisions cited by the Applicant.  Here, the Applicant’s ongoing discussions with FDRM revolved around whether all repairs would be covered under the Applicant’s insurance coverage.  The Applicant’s decision not to pursue PA funding due to its expectation of insurance coverage is not an extenuating circumstance beyond its control.

 

Conclusion

Neither the Applicant nor the Grantee has demonstrated that extenuating circumstances beyond either’s control prevented timely submission of an RPA.  Therefore, the Applicant’s second appeal is denied.

 

[1] See FEMA Press Release, Deadline for Public Assistance Requests Extended, DR-4337-FL NR 107 (Nov. 13, 2017); FEMA Press Release, Nonprofit Houses of Worship May Apply for FEMA Help, DR-4337-FL NR 156 (Jan. 30, 2018) (Houses of Worship were granted an additional deadline extension, but the extension expired for all other applicants on November 21, 2017).

[2] First Appeal Letter from Vice President & Chief Fin. Officer, Fla. Polytechnic Univ., to Reg’l Adm’r, FEMA, through Dir., Fla. Div. of Emergency Mgmt., at 5 (Sept. 3, 2019).

[3] Id., at 6-8 (citing FEMA Second Appeal Analysis, La. State Univ. of Alexandria, FEMA-1548-DR-LA (Aug. 19, 2005) (applicant responded in a timely fashion after being misinformed of deadlines); FEMA Second Appeal Analysis, New Orleans Chapter Nat’l Ry. Historic Soc’y, FEMA-1603-DR-LA, at 1 (Jan. 5, 2009) (FEMA instructed the applicant to wait for an SBA determination before applying for PA); FEMA Second Appeal Analysis, Econ. Dev. Unit, FEMA-1603-DR-LA, at 1 (Sept. 2, 2008) (applicant awaited SBA determination); FEMA Second Appeal Analysis, W. Cameron Port Com’n, FEMA-1607-DR-LA, at 1 (Sept. 3, 2008) (unresolved legal responsibility dispute delayed RPA submission)).

[4] Robert T. Stafford Disaster Relief and Emergency Assistance Act, as amended, § 301, 42 U.S.C. § 5141 (2012).

[5] Title 44 Code of Federal Regulations (44 C.F.R.) § 206.202(b) (2016).

[6] 44 C.F.R. § 206.202(b)(3)-(4).

[7] 44 C.F.R. § 206.202(c).

[8] 44 C.F.R. § 206.202(f)(2).

[9] Id.

[10] Public Assistance Program and Policy Guide, FP 104-009-2, at 130 (Apr. 2018).

[11] Second Appeal Analysis, N. Mia. Beach Med. Ctr., FEMA-4337-DR-FL, at 3 (Sept. 16, 2020).

[12] FEMA Second Appeal Analysis, Kapoho Kai Water Ass’n, FEMA-4366-DR-HI, at 2-3 (Nov. 6, 2020) (finding no extenuating circumstances to justify an 8 month delay in RPA submission even when the Applicant stated it had no previous experience with FEMA requirements); N. Mia. Beach Med. Ctr., FEMA-4337-DR-FL, at 3 (grantee responsibilities include ensuring applicants are aware of available PA and assisting in obtaining disaster relief funding, and failure to comply with these mandated responsibilities is not a circumstance outside of a grantee’s control).

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