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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 11193
Date Signed2021-10-06T16:00:00

Summary Paragraph

From August 23 to September 15, 2017, rainfall from Hurricane Harvey impacted the roof of Baptist Hospitals of Southeast Texas’ (Applicant) Orange Medical Office Building (Facility) in Orange, 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) 11193 to document the restoration of the Facility’s roof, but denied Public Assistance (PA) funding for the project in a June 18, 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 materials.
    • 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.  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) 11193, 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 $700,035.00 for the replacement of the roof at the Orange Medical Office Building (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.  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 Orange Medical Office Building (MOB) (Facility) in Orange, Texas.  The Facility is owned and maintained by Baptist Hospitals of Southeast Texas (Applicant), an eligible Private Nonprofit.

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 envelope systems … allowing for water infiltration beyond the building envelope.”[1]  It found that the roof required complete replacement.

FEMA created Grants Manager Project (GMP) 11193 to document work to replace the Facility’s roof, and conducted a site inspection on June 4, 2018.  The FEMA Site Inspector (SI) noted minor scratches to the roof’s asphalt covering in one area, but was otherwise unable to verify any damages resulting from the disaster.[2]

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.  Though it found some level of moisture “throughout most of the roof,” Envista found the highest levels were concentrated around drains and roof-mounted equipment “with the latter area exhibiting localized recovering of the membrane” and pre-existing deterioration.[3]

At the Applicant’s request, FEMA conducted a second site inspection on October 8, 2019.  Other than the minor scratching noted at the first site inspection, FEMA found that there was no visible wind damage from the disaster on the Facility’s roof.  Additionally, it determined that the roof’s drainage capacity was sufficient to clear the rainfall that occurred during the disaster.  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.”[4]

FEMA issued a Determination Memorandum dated June 18, 2020, denying Public Assistance (PA) funding for the project.  FEMA found that the Applicant had not provided documentation indicating the claimed damage was caused by the disaster, and therefore work to replace the Facility’s roof was ineligible for PA funding.[5]

 

First Appeal

The Applicant submitted a first appeal dated July 22, 2020, requesting FEMA approve PA funding for estimated costs totaling $700,035.00 to replace the Facility’s roofing system.  The Applicant stated that the Facility’s roof was four 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 good 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 four years old at the time of the disaster, and was well within its useful service life when the disaster began.  In its report, Zero/Six indicated that the Facility’s roof dates to February 2013;[15] this was confirmed by FEMA’s SI at the first site inspection.  Therefore, information in the record establishes that the Facility’s roof was approximately 4.5 years old at the time of the disaster.  Considering its age at the time of the disaster, it is reasonable to conclude that the Facility roof was within its functional service life when the incident period began.

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, based on an inspection that occurred three years prior to the disaster, provides a one-word assessment of the roof’s condition (“good”), and a single photograph, but provides no further details or explanation.[16]  The COPE report, prepared a year later, is likewise limited to the same one-word descriptor.[17]  The Applicant’s maintenance and inspection records, dated closer to the incident period, confirm that the rooftops of all buildings on its Orange campus, including the Facility, were inspected once, in May 2017.  However, the work order associated with this inspection does not record the observed condition of the Facility 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.  Post-disaster photographs in the Zero/Six report show only the general condition of the surface membrane in one area of the roof, and a damaged fastener; other imagery indicates areas in which the roofing system failed uplift testing.[18]  Moreover, a thermal image in the Zero/Six report depicts subsurface moisture only in isolated areas around roof-mounted equipment, and none of the roof core samples indicated in the report were shown to contain moisture.[19]  Similarly, Envista found elevated levels of subsurface moisture only around roof-mounted equipment, including in areas with evidence of pre-existing deterioration.[20]  FEMA’s site inspection assessments also contradicted Zero/Six’s recommendation.  At both the June 2018 and October 2019 site inspections, FEMA was unable to attribute any damages to the Facility’s roof 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.[21]  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.[22]

 

Conclusion

The Applicant has not demonstrated that work to replace the Facility’s roof is required as a result of the disaster.  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. (Orange MOB), at 8 (Apr. 10, 2018) [hereinafter Zero/Six Report (Orange MOB)].  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] FEMA Region VI, Site Inspection Report, Damage #21967, Orange MOB, at 1, 7 (June 4, 2018).  The SI noted that scratches to the roof’s surface occurred when high winds dislodged a metal air intake cover, blowing it across the roof.  The SI measured intermittent scratches along 20 linear feet of the northwestern portion of the roof. 

[3] Envista Forensics, Report of Findings, Cmty. Hosp. Corp., Baptist Hosp. of Se. Tex., at 12 (Aug. 20, 2018) [hereinafter Envista Report].  Envista defined recovered roofs as “older roof coverings found within the assemblies,” which “exhibited evidence of historical moisture intrusion and accumulation within their assemblies”; Id. at 7.  Envista also noted the damages from “wind-borne debris impacts” FEMA noted at the first site inspection; Id. at 3.

[4] FEMA Region VI, Site Inspection Report, Orange MOB, Project 11193, at 3 (Undated).

[5] FEMA acknowledged minor scratching damage to the roof’s surface membrane caused by the disaster, as well as associated repair costs of $970.87.  However, as this amount was below the minimum project threshold of $3,100.00 in place at the time of the disaster, FEMA found such costs were also ineligible; FEMA Region VI, Eligibility Determination Memorandum, Baptist Hosps. of Se. Tex., GMP 11193, at 6 (June 18, 2020).

[6] The Applicant makes additional arguments regarding changes to AIG’s position on disaster-related damage; it also accuses FEMA of disregarding 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).

[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 § 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 (Orange MOB), at 8.

[16] Paragon Risk Eng’g, Prop. Risk Control Survey Report (Orange Hospital), at 11, 32 (Aug. 18, 2014).

[17] American Int’l Grp., Inc. (AIG), VHA Sw. Cmty. Health Commercial Prop. COPE Report, at 10 (July 15, 2015).  The COPE report covered both the Facility and the nearby Orange Hospital building(s).  The description of the roof’s condition as “good” is taken from an assessment of all structures covered by the report; FEMA could find no similar description specific only to the Facility.  Elsewhere, AIG described all roof coverings as “adequate,” and noted “minor signs of water ponding”; Id. at 18.

[18] Zero/Six Report, at 9, 11.  FEMA notes that the apparent condition of the roof’s surface membrane in Zero/Six’s post-disaster photograph does not differ appreciably from its apparent condition in the predisaster photograph found in the Paragon report.

[19] Id. at 10; cf. Zero/Six Consulting, Post Disaster Facility Evaluation of Baptist Hosps. of Se. Tex. (Behavioral Health), at 16 (Apr. 10, 2018) (containing an aerial image of the Applicant’s Behavioral Health Center facility, with “wet” roof core samples clearly indicated).

[20] See Envista Report, at 11-12.

[21] 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).

[22] 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 11193 is moot, as the Applicant has not demonstrated the claimed items of work were required as a result of the disaster.

Last updated October 7, 2021