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Request for Public Assistance

Appeal Brief Appeal Letter

Appeal Brief

Desastre1855-DR-KY
ApplicantJefferson Community and Technical College Foundation, Inc.
Appeal TypeSecond
PA ID#111-UK8D9-00
PW ID#N/A
Date Signed2013-10-18T00:00:00

Citation:  FEMA-1855-DR-KY, Jefferson Community and Technical College Foundation, Inc.

Cross-Reference:  Request for Public Assistance

 

Summary:  In August 2009, the Jefferson Community and Technical College Foundation (Foundation) submitted a Request for Public Assistance (RPA) under declaration FEMA-1855-DR-KY.  FEMA prepared eleven Project Worksheets (PWs) to repair flood damage to the basement of an office building located at 200 West Broadway.  Upon review, FEMA determined that the submitted documentation did not establish that the Foundation sustained disaster damage to an eligible facility.  FEMA denied funding for the Foundation’s PWs and denied the Foundation’s RPA because the Foundation does not meet the regulatory criteria as eligible educational institution.

The Foundation appealed FEMA’s determination, stating that it is a Private Non-profit (PNP) facility established exclusively for charitable, educational, and scientific purposes. The Foundation stated that the damaged building houses essential college educational services.  The FEMA Regional Administrator denied the appeal because the damaged facility does not meet the criteria for an eligible PNP facility defined in Title 44 of the Code of Federal Regulations (44 CFR) §206.221(e), Definitions, Private nonprofit facility. Further, the Regional Administrator determined that the Foundation does not meet the criteria for an eligible educational institution as defined in 44 CFR §206.221(a), Definitions, Educational institution.  The Regional Administrator explained that the Foundation functions as a fundraising organization for The Jefferson Community and Technical College, and that fundraising is not an educational activity.

In a second appeal, the Foundation states that it is an eligible PNP because its fundraising activities provide the essential support that enables an eligible educational institution to function.  The Foundation also claims to provide critical services and infrastructure to the college by allowing the college’s administrative functions to occupy the damaged building.  The Foundation has not submitted any documentation supporting its claim that it provides a service, other than fundraising, in support of an eligible educational facility.  Furthermore, for a PNP facility to qualify as an eligible facility, the primary function of the facility must be an eligible essential service.

Issues:  Has the Foundation demonstrated that it sustained disaster damage to an eligible facility?

Findings:  No.

Rationale:  44 CFR §206. 221(e), Definitions, Private nonprofit facility

Appeal Letter

October 18, 2013

Michael A. Jones
Director
Kentucky Division of Emergency Management
100 Airport Road – Third Floor
Frankfort, Kentucky 40601

Re:  Second Appeal­—Jefferson Community and Technical College Foundation, Inc., PA ID 111-UK8D9-00, Request for Public Assistance, FEMA-1855-DR-KY

Dear Mr. Jones:

This letter is in response to a letter from your office dated October 29, 2012, which transmitted the referenced second appeal on behalf of Jefferson Community and Technical College Foundation, Inc. (Foundation).  The Foundation is appealing the U.S. Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) decision to deny its Request for Public Assistance (RPA).

Background

In August 2009, following severe storms that resulted in major disaster declaration FEMA-1855-DR-KY, the Foundation submitted an RPA to request reimbursement of the costs to repair flood damage to the basement of the Jefferson Education Center, an office building located at 200 West Broadway.  FEMA reviewed the Foundation’s RPA and prepared 11 Project Worksheets (PWs) to document the damage and scope of repair for both emergency and permanent work.  Upon review, FEMA determined the Foundation’s facility does not meet the regulatory criteria for eligible educational facilities defined in Title 44 Code of Federal Regulations (44 CFR) §206.221(e)(1), Definitions, Private nonprofit facility, Educational facilities.  Further, FEMA determined that the Foundation is not an eligible Private Nonprofit (PNP) educational institution pursuant to 44 CFR§206.221(a), Definitions, Educational institution.  FEMA denied the Foundation’s RPA and de-obligated previously awarded funding.

First Appeal

The Foundation’s first appeal dated November 22, 2011, stated that the Foundation is a PNP that was established exclusively for charitable, educational, and scientific purposes.  The appeal letter claimed that the damaged building houses essential college educational services.  These essential services include student enrollment, advising, financial aid, counseling, testing and admissions services, veteran’s affairs and disability services.  Further, the appeal letter claimed that budgetary constraints both locally and nationally affected the Commonwealth of Kentucky’s ability to provide financial support to higher educational facilities.

FEMA’s Region IV Regional Administrator denied the Foundation’s appeal with a letter dated August 17, 2012.  The Regional Administrator determined that the damaged facility does not meet the criteria for an eligible facility. In addition, the Regional Administrator explained that the Foundation does not meet any of the five defining criteria for an eligible educational institution.  The Regional Administrator further stated that pursuant to the Foundation’s bylaws, the Foundation functions as a fundraising organization in support of Jefferson Community and Technical College.  The Regional Administrator determined that the Foundation is not eligible for Public Assistance funding as it did not demonstrate that it is an educational institution or provide an eligible educational service.

Second Appeal

In a second appeal dated October 25, 2012, the Foundation acknowledges that it does not meet the regulatory criteria for an eligible educational institution.  However, it asserts that its financial assistance to an eligible educational institution qualifies as essential critical assistance and support pursuant to 44 CFR §206.221(e) Definitions, Private nonprofit facility and Section 406(a)(3) of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act).  The Foundation reiterates that because certain administrative functions are housed in the damaged building, the facility provides essential services and infrastructure to the Jefferson Community and Technical College.  The appeal letter notes that the Foundation applied for, but was declined assistance by the Small Business Administration and that its insurance carrier denied it coverage for flood damage.

Discussion

While FEMA recognizes the important role that the Foundation provides to the Jefferson Community and Technical College in enabling operations through financial assistance, the organization must satisfy the legal requirements for eligibility in order to receive funding through FEMA’s Public Assistance Program.  Section 406 of the Stafford Act provides FEMA the authority to grant federal assistance to state or local governments, and certain PNPs for the permanent restoration of eligible disaster damaged facilities.  According to 44 CFR §206.222, Applicant eligibility, in order for a PNP entity to be eligible for assistance, it must own or operate a facility identified in 44 CFR §206.221(e).  The types of PNP facilities recognized as eligible for Public Assistance are “educational, utility, emergency, medical, or custodial care facility, including a facility for the aged or disabled, and other facility providing essential governmental type services to the general public, and such facilities on Indian reservations.” 

While the Foundation concedes that it does not qualify as an educational institution, it maintains that because it provides the essential service of financial assistance through fundraising to an eligible educational PNP and further, because an eligible entity conducts administrative functions in the damaged building, the Foundation claims that it owns and operates an eligible educational facility.  According to 44 CFR §206.221(e)(1) Educational facilities, “Educational facilities means classrooms plus related supplies, equipment, machinery, and utilities of an educational institution necessary or appropriate for instructional, administrative, and support purposes, but does not include buildings, structures and related items used primarily for religious purposes or instruction.”  The Foundation does not claim to perform the Jefferson Community and Technical College’s administrative functions located at 200 West Broadway, but claims it is located in the damaged building. In the absence of any documentation to the contrary, restoration of those functions remains the legal responsibility of the Jefferson Community and Technical College.

The Foundation’s bylaws state that it functions as a charitable fundraising organization.  The Foundation’s appeal claims that the provision of financial assistance to the Jefferson Community and Technical College represents an essential support function.  However, FEMA interprets eligible “support purposes” contained in 44 CFR §206.221(e)(1) to mean those functions that provide operational support that enable the eligible entity to perform its eligible essential function.  Fundraising does not qualify as an eligible support function to an educational institution.

The Foundation does not meet the definition of an eligible PNP educational institution under 44 CFR §206.221(e).  Additionally, the Foundation has not demonstrated that it was legally responsible for maintaining the Jefferson Community and Technical College’s administrative functions that were collocated at the damaged site pursuant to 44 CFR §206.223(a).  Furthermore, the Foundation has not demonstrated that it provides operational support to the Jefferson Community and Technical College.

Conclusion

I have reviewed the information submitted with the appeal and have determined that the Regional Administrator’s decision in the first appeal is consistent with Public Assistance regulations and policy.  Accordingly, I am denying the second appeal.

Please inform the Foundation of my decision.  This determination is the final decision on this matter pursuant to 44 CFR §206.206, Appeals.

Sincerely,

/s/

Deborah Ingram
Assistant Administrator
Recovery Directorate                                                                      

cc:  Major P. May
      Regional Administrator
      FEMA Region IV