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Result of Declared Incident

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster4332
ApplicantBaptist Hospitals of Southeast Texas
Appeal TypeSecond
PA ID#000-UTFZB-00
PW ID#GMP 11156
Date Signed2021-09-21T16:00:00

Summary Paragraph

From August 23 to September 15, 2017, rainfall from Hurricane Harvey impacted the roof of Baptist Hospitals of Southeast Texas’ (Applicant) Behavioral Health Center (Facility) in Beaumont, Texas.  A contractor hired by the Applicant assessed that rainfall from the disaster overwhelmed the roof’s surface membrane, damaging subsurface materials.  FEMA created Grants Manager Project (GMP) 11156 to document the restoration of the Facility’s roof, but denied Public Assistance (PA) funding for the project in a June 16, 2020 Determination Memorandum.  On July 22, 2020, the Applicant appealed, arguing that the roof was well within its functional service life and in good condition prior to the disaster.  Based on its contractor’s assessment, it asserted that unprecedented rainfall from the disaster damaged the roof.  The FEMA Region VI Regional Administrator denied the appeal on May 6, 2021, finding that the available documentation did not support disaster-related damage to the Facility.  The Applicant submitted a second appeal dated June 10, 2021, reiterating its first appeal arguments, and requesting PA funding to replace the roof.

 

Authorities and Second Appeals

  • Stafford Act § 406.
  • 44 C.F.R. § 206.223(a)(1).
  • PAPPG, at 19-20, 118.
  • Conway Hosp., FEMA-4394-DR-SC, at 3.
  • Republic Cty. Highway Dep’t, FEMA-4230-DR-KS, at 4.

 

Headnotes

  • To be eligible for PA funding, an item of work must be required as a result of the disaster.
    • The documentation provided by the Applicant does not enable FEMA to verify the predisaster condition of the Facility’s roof.
    • Post-disaster assessments of the disaster’s impact conflict with the Applicant’s contractor’s assessment, and indicate pre-existing damage to roofing surfaces.
    • Nothing in the Applicant’s supporting documentation distinguishes disaster-caused damage from the pre-existing deterioration noted in the conflicting assessments.

 

Conclusion

The Applicant has not demonstrated that work to replace the Facility’s roof is required as a result of the disaster, rather than the result of predisaster conditions or deferred maintenance.  Consequently, such work is ineligible for PA funding.  Therefore, this appeal is denied.

Appeal Letter

W. Nim Kidd

Chief, Texas Division of Emergency Management

Vice Chancellor – The Texas A&M University System

1033 LaPosada Drive, Suite 370

Austin, Texas 78752

 

Re:  Second Appeal – Baptist Hospitals of Southeast Texas, PA ID: 000-UTFZB-00, FEMA-4332-DR-TX, Grants Manager Project (GMP) 11156, Result of Declared Incident

 

Dear Chief Kidd:

This is in response to a letter from your office dated July 6, 2021, which transmitted the referenced second appeal on behalf of Baptist Hospitals of Southeast Texas (Applicant).  The Applicant is appealing the U.S. Department of Homeland Security’s Federal Emergency Management Agency’s denial of funding in the amount of $306,950.00 for the replacement of the roof at the Behavioral Health Center (Facility).

As explained in the enclosed analysis, I have determined that the Applicant has not demonstrated that work to replace the Facility’s roof is required as a result of the disaster, rather than the result of predisaster conditions or deferred maintenance.  Consequently, such work is ineligible for Public Assistance funding.  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:  George A. Robinson

Regional Administrator

FEMA Region VI

Appeal Analysis

Background

From August 23 to September 15, 2017, wind-driven rain from Hurricane Harvey impacted the roof of the Behavioral Health Center (Facility) in Beaumont, Texas.  The Facility is owned and maintained by Baptist Hospitals of Southeast Texas (Applicant), an eligible Private Nonprofit.  The Facility’s roof is divided into two “Areas” (Areas I and II); each Area is further divided into “Facets” lettered F, G, J, K, and L.

Following Hurricane Harvey, the Applicant hired Zero/Six Consulting (Zero/Six) to inspect and assess various properties, including the Facility.  Zero/Six released a report finding that rainfall from the disaster overwhelmed the Facility’s “building envelop systems … allowing for water infiltration beyond the building envelop.”[1]  It found that the roof over Areas I and II required complete replacement.  The Applicant requested Public Assistance (PA) funding to replace the Facility’s roof; it later modified its claim to include only Facets F, K, and a portion of Facet G.[2]

FEMA created Grants Manager Project (GMP) 11156 to document work to replace the Facility’s roof on Facets F, G, and K, and conducted a site inspection on June 4, 2018.  However, the FEMA Site Inspector (SI) was unable to verify any damage attributable to the disaster.  For Facet K, the SI noted that the roof “shows signs of aging [and] cracks to the cap surface membrane.”[3]

The Applicant’s insurer, American International Group (AIG), hired Envista Forensics (Envista) to inspect and assess the roof assembly on the Facility.  In an August 20, 2018 report of findings, Envista disagreed with the Zero/Six recommendation that the Facility’s roof required replacement.  Regarding Facets F, G, and K,[4] Envista found that the roof’s subsurface was dry, with some isolated exceptions near roof-mounted drains and mechanical penetrations, or in areas with evidence of historical rainwater ponding and/or predisaster surface patching.

At the Applicant’s request, FEMA conducted a second site inspection on October 8, 2019.  FEMA found that there was no visible wind damage from the disaster on Facets F, G, and K.  Additionally, it determined that drainage capacity on all three Facets was sufficient to clear the rainfall that occurred during the disaster for all but a single hour-long period on Facet F.  Therefore, in the absence of wind damage to the roof, FEMA “could not validate any potential disaster related damage that is distinguishable from the pre-existing condition.”[5]

FEMA issued a Determination Memorandum signed June 16, 2020, denying PA funding for the project.  Based on the available information, FEMA found that there were indications of pre-existing damage to the Facility’s roof, and the Applicant had not demonstrated that the claimed replacement work (including for Facets F, G, and K) was required as a direct result of the disaster.

 

First Appeal

The Applicant submitted a first appeal dated July 22, 2020, requesting FEMA approve PA funding for estimated costs totaling $306,950.00 to replace the Facility’s roofing system.  The Applicant stated that the Facility’s roof was 11 years old and was well within its useful service life at the time of the disaster.  It asserted that there was no pre-existing damage to the roof.  In support, it referenced a Facility assessment (COPE report) prepared in July 2015 by AIG.  The Applicant stated that AIG found the Facility roof was routinely maintained and in adequate condition, with no previous damage, prior to the disaster.  The Applicant stated that the Facility roof sustained subsurface damage during the disaster that could not be detected through visual observation.  It noted Zero/Six’s assessment that the disaster produced unprecedented rainfall, and asserted that the Facility’s roof held standing water for 96 hours during the disaster.[6]  In a July 31, 2020 transmittal letter, the Texas Division of Emergency Management (Grantee) expressed support for the appeal.

The FEMA Region VI Regional Administrator denied the appeal on May 6, 2021.  FEMA found that the Applicant had not established the predisaster condition of the Facility’s roof, and had not “provided sufficient reasons to rely solely on the Zero/Six Report and dismiss the other contrary reports” prepared by Envista and FEMA’s SI.[7]  Therefore, FEMA determined that the Applicant had not demonstrated that the damages claimed were a direct result of the disaster, and work to restore the Facility’s roof was ineligible for PA funding.

 

Second Appeal

The Applicant submitted a second appeal dated June 10, 2021.  The Applicant reiterates its first appeal arguments and provides a report prepared by Paragon Risk Engineering (Paragon) in August 2014.  It claims the Paragon report “supports that the roofs on the [hospital] campus were in good condition” prior to the disaster.[8]  In a July 6, 2021 transmittal letter to FEMA, the Grantee expresses support for the appeal.

 

Discussion

FEMA provides PA funding to eligible applicants for the repair, restoration, reconstruction, or replacement of facilities damaged or destroyed by disasters.[9]  To be eligible for PA funding, an item of work must be required as a result of the disaster.[10]  FEMA does not provide PA funding for repair of damage caused by deterioration, deferred maintenance, the applicant’s failure to take measures to protect a facility from further damage, or negligence.[11]  For buildings and building systems, distinguishing between damage caused by the incident and pre-existing damage may be difficult.[12]  Before making an eligibility determination, FEMA considers each of the following: the age of the building and building systems; evidence of regular maintenance or pre-existing issues; and the severity and impacts of the incident.[13]  It is the applicant’s responsibility to demonstrate that damage was caused directly by the declared incident, and where pre-existing damage exists, to distinguish that damage from the disaster-related damage.[14]

The Applicant states that the Facility’s roof was 11 years old at the time of the disaster, and was well within its useful service life when the disaster began.  However, in its report, Zero/Six recorded the roof’s age as “unknown.”[15]  FEMA could find no independent verification of the roof’s age in the other documentation provided with the administrative record.  Therefore, FEMA is unable to verify the age of the Facility’s roof or the Applicant’s claim regarding its functional service life.

The Applicant provides the Paragon report, the COPE report, and maintenance and inspection records to establish the predisaster condition of the Facility’s roof.  The Paragon report does not apply to the Facility at issue in this appeal.[16]  The COPE report, based on an inspection that occurred more than two years prior to the disaster, provides a one-word assessment of the roof’s condition (“adequate”), but provides no further details or explanation.[17]  The Applicant’s maintenance and inspection records, dated closer to the incident period, confirm that the rooftops were cleaned twice, and inspected once, in the eight-month period prior to the disaster.  However, none of the work orders records the observed condition of the roof prior to the disaster.

Likewise, Zero/Six did not assess the predisaster condition of the Facility’s roof in its report.  It nevertheless assessed that the entirety of the Facility’s roof was compromised by rainfall from the disaster, and recommended complete replacement of the roof in Areas I and II, including Facets F, G, and K.  Post-disaster photographs in the Zero/Six report show water or moisture in subsurface materials; other imagery indicates areas in which the roofing system failed uplift testing.[18]  However, Envista found that in many areas the roof was dry, and those areas in Facets G and K with significant subsurface moisture also showed evidence of predisaster deterioration or “historical” water ponding.[19]  FEMA’s site inspection assessments also contradicted Zero/Six’s findings.  At both the June 2018 and October 2019 site inspections, FEMA was unable to attribute any damages on Facets F, G, or K to the disaster.

Work must be required as a result of the declared incident to be eligible and the Applicant has the burden to demonstrate that the requested work is necessary.[20]  The Applicant’s records do not enable FEMA to verify the predisaster condition of the Facility’s roof, and post-disaster assessments of the disaster’s impact, prepared by Envista and FEMA, conflict with the Applicant’s assessment, prepared by Zero/Six.  Nothing in the Applicant’s supporting documentation distinguishes disaster-caused damage from the pre-existing deterioration noted in the conflicting assessments.  Therefore, the information the Applicant provided does not demonstrate that work to restore the Facility’s roof was required as a result of disaster-caused damages, rather than the result of pre-existing deterioration.[21]

 

Conclusion

The Applicant has not demonstrated that work to replace the Facility’s roof is required as a result of the disaster, rather than the result of predisaster conditions or deferred maintenance.  Consequently, such work is ineligible for PA funding.  Therefore, this appeal is denied.

 

 

[1] Zero/Six Consulting, Post Disaster Facility Evaluation of Baptist Hosps. of Se. Tex. (Behavioral Health), at 8 (Apr. 10, 2018) [hereinafter Zero/Six Report (Behavioral Health)].  Zero/Six released an initial report for all of the Applicant’s buildings on March 6, 2018; it issued a revised report for the Facility on April 10, 2018.

[2] See Letter from W.H. Coltzer Int’l, L.L.C., to Program Delivery Mgr., AECOM Recovery, at 1 (Oct. 15, 2018).

[3] FEMA Region VI, Site Inspection Report, Damage #21960, Behavioral Health Ctr., at 2 (June 4, 2018).

[4] Envista used a different lettering convention for the Facility’s roof sections, referring to them as Areas A to E; see Envista Forensics, Report of Findings, Cmty. Hosp. Corp., Baptist Hosp. of Se. Tex., at Attachment D (Aug. 20, 2018) [hereinafter Envista Report].  In the Envista report, Area E corresponds with Facet F; Area C with Facet K; and Area D and parts of Area B with Facet G.

[5] FEMA Region VI, Site Inspection Report, Fannin Behavioral Med. Office Bldg., Project 11156, at 3-4, 6, and 8 (Undated).

[6] The Applicant makes additional arguments regarding changes to AIG’s position on disaster-related damage; it also accuses FEMA of “complete disregard” for the Zero/Six assessment of damages, including the Applicant’s cost estimate; see Letter from Chief Exec. Officer, Baptist Hosps. of Se. Tex., to Reg’l Adm’r, FEMA Region VI, at 3 (July 22, 2020).

[7] FEMA First Appeal Analysis, Baptist Hosps. of Se. Tex., FEMA-4332-DR-TX, at 6 (May 6, 2021) (emphasis removed).

[8] Letter from Chief Exec. Officer, Baptist Hosps. of Se. Tex., to Reg’l Adm’r, FEMA Region VI, at 3 (June 10, 2021) [hereinafter Applicant Second Appeal].

[9] Robert T. Stafford Disaster Relief and Emergency Assistance Act § 406, Title 42, United States Code § 5172 (2012).

[10] Title 44 Code of Federal Regulations (44 C.F.R.) § 206.223(a)(1) (2016); Public Assistance Program and Policy Guide, FP 104-009-2, at 19 (Apr. 1, 2018) [hereinafter PAPPG].

[11] PAPPG, at 19-20.

[12] Id. at 118.

[13] Id.

[14] Id. at 19; FEMA Second Appeal Analysis, Conway Hosp., FEMA-4394-DR-SC, at 3 (July 7, 2021).

[15] Zero/Six Report (Behavioral Health), at 8.

[16] Though the Paragon report notes the Applicant’s ownership of the Facility, it clearly states that “this report focuses only on the Main Hospital Building,” which is a separate structure; Paragon Risk Eng’g, Prop. Risk Control Survey Report, at 2 (Aug. 19, 2014).  As Paragon did not assess the Facility’s roof, FEMA is unable to apply the findings contained in the Paragon report to any analysis of the Facility.

[17] American Int’l Grp., Inc. (AIG), VHA Sw. Cmty. Health Commercial Prop. COPE Report, at 14 (July 14, 2015).  AIG also noted that “[a] complete roof maintenance (semi-annual inspection, etc.) and replacement program is established”; Id. at 13.

[18] Zero/Six Report (Behavioral Health), at 10, 12, 18.  Of the roofs on appeal, Zero/Six recorded failed uplift tests on Facet K only.  FEMA notes that a post-disaster photograph in the Zero/Six report shows the deteriorated texture of the roof’s concrete deck on Facet K, which, by the Applicant’s own concession on appeal, is evidence of long-term deterioration to the roof in that area; see Applicant Second Appeal, at 6.

[19] Envista Report, at 9-10.

[20] 44 C.F.R. § 206.223(a)(1); FEMA Second Appeal Analysis, Republic Cty. Highway Dep’t, FEMA-4230-DR-KS, at 4 (July 26, 2017).

[21] Finally, FEMA notes that it reviewed the Applicant’s cost estimate during the analysis of the second appeal.  However, the issue of costs for permanent work under GMP 11156 is moot, as the Applicant has not demonstrated the claimed items of work were required as a result of the disaster.

Last updated September 23, 2021