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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 13396
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) Beaumont Surgical Affiliates Building (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 13396 to document the restoration of the Facility’s roof, but denied Public Assistance (PA) funding for the project in a June 11, 2020 Determination Memorandum.  On July 22, 2020, the Applicant appealed, arguing that the roof was 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.
    • As a result, FEMA determines that the Applicant has not demonstrated the clear presence of disaster-related damage, nor has it demonstrated damage to the Facility’s roof to such an extent that it required replacement.

Conclusion

The Applicant has not demonstrated that work to replace the Facility’s roof is required as a result of the disaster.  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) 13396, 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 $527,800.00 for the replacement of the roof at the Beaumont Surgical Affiliates 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.  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 Beaumont Surgical Affiliates (BSA) Building (Facility) in Beaumont, Texas.  The Facility is owned and operated 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.[2]

FEMA created Grants Manager Project (GMP) 13396 to document work to replace the Facility’s roof, 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.[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.  Envista found that much of the roof was dry, with isolated exceptions near “mechanical and screen wall penetrations,” or in areas with evidence of historical rainwater ponding.[4]

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 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.” [5]

FEMA issued a Determination Memorandum dated June 11, 2020, denying Public Assistance (PA) funding for the project.  Based on the available information, 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.

 

First Appeal

The Applicant submitted a first appeal dated July 22, 2020, requesting FEMA approve PA funding for estimated costs totaling $527,800.00 to replace the Facility’s roofing system.  The Applicant stated that the Facility’s roof was 20 years old and was well maintained and in good condition with no pre-existing damage at the time of the disaster.  In support, it provided maintenance records and a predisaster Facility assessment (COPE report) prepared by AIG.  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 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 noted that AIG’s predisaster assessment in the COPE report was for the Applicant’s Main Hospital Building, and as such did not apply to the Facility.  Further, FEMA found that the post-disaster assessments done by Envista and FEMA contradicted the assessment made by Zero/Six, and that the Applicant had not “provided sufficient reasons to rely solely on the Zero/Six Report and dismiss the other contrary reports.”[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, reiterating its first appeal arguments.  Additionally, it states that although AIG did not “directly” reference the Facility in the COPE report, the assessment was nevertheless used “as the basis of insuring the entire campus,” and should therefore be considered by FEMA.[8]  The Applicant also references a second predisaster assessment prepared by Paragon Risk Engineering (Paragon), which it claims establishes the predisaster condition of the Facility’s roof.  In a July 6, 2021 transmittal letter, 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 20 years old, and was in good condition when the disaster began.  In its report, Zero/Six recorded its assumption that the roof dated to the construction of the Facility in 1997;[15] at the first site inspection, FEMA’s SI also recorded that the roof dated to 1997 and was the Facility’s original roof.  Therefore, information in the record establishes that the Facility’s roof was approximately 20 years old at the time of the disaster.

The Applicant provides the Paragon report, the COPE report, and maintenance and inspection records to establish the predisaster condition of the Facility’s roof.  However, neither the Paragon report nor the COPE report apply to the Facility at issue in this appeal.[16]  The Applicant’s maintenance and inspection records confirm that the Facility’s roof was cleaned twice in the eight-month period prior to the disaster.  However, the work orders do not record 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 found that 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 water leaking from a penetration in the roof’s surface membrane in one area; other imagery indicates areas in which the roofing system failed uplift testing, or had wet or damaged subsurface materials.[17]  In contrast, Envista found that much of the roof’s subsurface was dry, “with a few isolated exceptions (primarily immediately around mechanical and screen wall penetrations).”[18]  Envista noted the highest levels of subsurface moisture in an area “where the roof surface exhibited evidence of historical 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 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.[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.  As a result, FEMA determines that the Applicant has not established the clear presence of disaster-related damage, nor has it demonstrated damage to the Facility’s roof to such an extent that it required replacement.  Therefore, the work the Applicant is claiming on appeal is ineligible for PA funding.[21]

 

Conclusion

The Applicant has not demonstrated that work to replace the Facility’s roof is required as a result of the disaster.  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. (BSA), at 8-9 (Apr. 10, 2018) [hereinafter Zero/Six Report (BSA)].  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] Here, and throughout this analysis, FEMA refers to a 15,080 square foot (SF) area of low-slope modified bitumen roofing as “the Facility’s roof.”  Per the Zero/Six report, the Facility also has a 4,294 SF area of steep-slope metal roofing, however, this area is not pertinent to the present appeal; Id. at 8-9.

[3] FEMA, Project Report (GMP 13396), at 1 (Undated) (stating, in the damage description and dimensions section, “FEMA was unable to locate and document any storm related roof-damages due to rain water ponding, wind born debris, or wind gusts [sic]”).

[4] Envista Forensics, Report of Findings, Cmty. Hosp. Corp., Baptist Hosp. of Se. Tex., at 9 (Aug. 20, 2018) [hereinafter Envista Report].

[5] FEMA Region VI, Site Inspection Report, BSA, Project 13396, at 3 (Undated).

[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 7 (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 2 (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 (BSA), at 8.

[16] The Applicant references the Paragon report on second appeal, and provides a copy of the report with the second appeal for GMP 11156.  However, the report clearly states that “this report focuses only on the Main Hospital Building,” which is a structure separate from the Facility; Paragon Risk Eng’g, Prop. Risk Control Survey Report, at 2 (Aug. 19, 2014).  Likewise, in the COPE report provided with the second appeal, AIG assessed the Main Hospital Building and several attached structures, but did not assess the Facility; see American Int’l Grp., Inc. (AIG), VHA Sw. Cmty. Health Commercial Prop. COPE Report, at 6 (July 14, 2015).  As neither report provides an assessment of the Facility’s roof, FEMA is unable to apply the findings contained therein to any analysis of the Facility.

[17] Zero/Six Report (BSA), at 9-11.

[18] Envista Report, at 9.

[19] Id.

[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 13396 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