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Ineligible Costs, Immediate Threat

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster4468
Applicant– South Broward Hospital District
Appeal TypeSecond
PA ID#011-URXBZ-00
PW ID#PW 273
Date Signed2022-04-26T16:00:00

Summary Paragraph

Between August 28 and September 9, 2019, Hurricane Dorian caused strong winds, torrential rain and tidal surge which resulted in extensive damage throughout Coastal Florida.  The Applicant utilized materials, rented equipment, and obtained contractor services to add security patrols at its hospitals (Facilities), shuttle services for employees from flooded areas to the Facilities, security monitoring at the entrances of and within its Facilities’ parking garages, and blood platelets for anticipated disaster-related needs.  On February 19, 2021, FEMA denied most of the requested costs because they were increased operating expenses.  The Applicant appealed, stating that the security, shuttles, and extra monitoring personnel were necessary as eligible emergency protective measures to save lives or protect public health and safety.  The FEMA Region IV Regional Administrator denied the appeal, finding that the Applicant’s claim that town residents use of the parking garages does not support the need for additional monitoring personnel.  Additionally, the Applicant did not provide documentation demonstrating that the security personnel’s actions are specifically related to eligible emergency actions that would save lives or protect public health and safety.  The Applicant appealed this decision, stating it wishes to renew the security and monitoring personnel arguments it made on first appeal.     

Authorities and Second Appeals

  • Stafford Act § 403.
  • 44 C.F.R. §§ 206.223, 206.225(a).
  • PAPPG, at 42, 57-58, 60-61.
  • Georgetown Hosp. Syst., FEMA-4394-DR-SC, at 3.

Headnotes

  • FEMA is authorized to provide PA funding for emergency protective measures to save lives, to protect public health and safety, and to protect improved property.
    • The Applicant incurred costs as a result of the incident, however, it has not demonstrated that these additional costs were eligible emergency protective measures to save lives or protect public health and safety.
  • Increased costs of operating a facility or providing a service are generally not eligible; even when directly related to the incident.
    • The Applicant has not shown that the costs for its security services are specifically related to eligible emergency actions to save lives or protect public health and safety or improved property; the services are only for a limited period based on the exigency; and the costs are tracked and documented.  Therefore, these are increased operating costs.

Conclusion

The Applicant has not established that the additional monitoring and security personnel are eligible emergency protective measures, but instead they are responses to non-immediate threats, resulting in increased operating costs.  Therefore, the request for $17,806.87 in PA funding is denied.

Appeal Letter

Kevin Guthrie            

Director                                                          

Florida Division of Emergency Management           

2555 Shumard Oak Blvd.                                          

Tallahassee, Florida 32399-2100       

 

Re:  Second Appeal – South Broward Hospital District, PA ID: 011-URXBZ-00, FEMA-4468-DR-FL, Project Worksheet (PW) 273 – Ineligible Costs, Immediate Threat

 

Dear Mr. Guthrie:

This is in response to a letter from your office dated February 15, 2022, which transmitted the referenced second appeal on behalf of South Broward Hospital District (Applicant).  The Applicant is appealing the U.S. Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of funding in the amount of $17,806.87 for security and monitoring personnel services claimed as eligible emergency protective measures.

As explained in the enclosed analysis, I have determined the Applicant has not demonstrated that the additional monitoring and security services are eligible emergency protective measures.  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

Between August 28 and September 9, 2019, Hurricane Dorian caused strong winds, torrential rain and tidal surge which resulted in extensive damage throughout Coastal Florida.  South Broward Hospital District (Applicant) owns and maintains four hospitals (Facilities)[1] where it claimed it utilized materials, equipment, and contract services to perform emergency protective measures during the disaster.  The Applicant requested Public Assistance (PA) funding for, among other things, security patrols at the Facilities, shuttle services for employees from flooded areas to the Facilities, security monitoring at the entrances of and within its Facilities’ parking garages, and blood platelets for anticipated disaster-related needs.

On February 19, 2021, FEMA issued a Determination Memorandum partially approving costs, but stating that most of the requested costs relate to ineligible increased expenses of operating a facility as the result of an incident due to increased demand for the services the facility provides.  FEMA found $22,682.09 ineligible.[2]

First Appeal

The Applicant appealed the denial of additional security patrols and the management/monitoring at facility entrances and garages, along with the shuttle service for employees.[3]  The Applicant explained it brought on additional contract security personnel to patrol three of the Facilities during the incident period, consistent with its Hurricane Plan, which directs the Applicant to place security officers at the entrances and garages of the Facilities.  It claimed that security is an eligible emergency protective measure to save lives or protect public health and safety, and therefore the disputed security costs amounting to $5,032.87 are eligible for PA funding.

The Applicant also stated that during prior tropical storms and hurricanes, local residents have parked their vehicles in the Facilities’ parking garages to find additional shelter for their vehicles, and as such it is necessary for the Applicant to add contract monitoring personnel at the entrances to the Facilities’ parking areas to ensure parking availability for staff and patients.  The Hurricane Plan states that upon the issuance of a hurricane warning, the parking garage is limited to employees, physicians, and patients.  The Applicant argued that security is an eligible emergency protective measure to save lives or protect public health and safety, and therefore the garage monitoring services are eligible for PA funding.  The Florida Division of Emergency Management (Grantee) recommended FEMA approve the appeal and transmitted the Applicant’s appeal to FEMA Region IV.

The FEMA Region IV Regional Administrator denied the first appeal, stating that the costs incurred for the provision of security, shuttle services, and additional personnel for managing hospital entrances and garages were increased operating costs and ineligible for PA funding.  FEMA found that the Applicant’s claim that local residents use the parking garages did not support the need for additional security measures, nor did the Applicant provide documentation demonstrating that the security personnel’s actions were specifically related to eligible emergency actions that would save lives or protect public health and safety.  Additionally, FEMA found that the Applicant had not demonstrated that the shuttle services were supporting evacuation efforts as opposed to helping staff arrive to perform their regular duties, and therefore the costs for the employee shuttle service was ineligible for PA funding.

Second Appeal

The Applicant appeals the decision in a letter dated December 15, 2021, stating it wishes to renew all arguments it made on first appeal, except that it no longer requests the shuttle service costs.  The Applicant requests $17,746.87[4] in costs for additional security and monitoring personnel for entrances and garages.  The Applicant requests that FEMA fund the security and monitoring measures because they were designed to maintain and prioritize access to the Facilities for the sick and injured.  The Grantee forwards the Applicant’s second appeal to FEMA, with a letter in support of the Applicant’s claim.

 

Discussion

FEMA is authorized to provide assistance for emergency protective measures to save lives, protect public health and safety, or protect improved property.[5]  For emergency protective measures to be eligible, the applicant is responsible for showing the work is required due to an immediate threat resulting from the declared incident.[6]  Eligible emergency protective measures may include security, such as barricades, fencing, or law enforcement.[7]  Increased costs of operating a facility or providing a service are generally not eligible, even when directly related to the incident.[8]  However, short-term increased costs that are directly related to accomplishing specific emergency health and safety tasks as part of emergency protective measures may be eligible in limited circumstances.[9]  Expenses related to operating a facility or providing a service are only eligible if: the services are specifically related to eligible emergency actions to save lives or protect public health and safety or improved property; the services are only for a limited period based on the exigency; and the costs are tracked and documented.[10]

Here, the Applicant claims that local residents use the parking garages during disasters as a means of protecting their personal property, such as vehicles, boats, campers, and camper trailers.  It views this use of the garage as a potential hinderance to patients who may need to visit the hospital for medical care, as they would have less available parking.  As such, the Applicant claims that the additional personnel for monitoring the garages is necessary for the purpose of protecting public health and safety due to the declared disaster as an emergency protective measure.  However, monitoring was performed to address a potential occurrence of residents parking in spots meant for patients and does not address an immediate threat resulting from the declared incident.  It is therefore not an eligible emergency protective measure.    

The Applicant also brought on additional security personnel to place at the entrances in and around the Facilities.  The Applicant states that this is done as an eligible emergency protective measure, but it does not indicate how it is specifically related to an eligible emergency action to save lives or protect public health and safety.  The Applicant does not describe the work they did or explain why the usual amount of security personnel would not be sufficient.  The Applicant has not established that the additional personnel would lessen or eliminate an immediate threat (or specified the hurricane-related threat they are meant to address).  Although the Applicant incurred additional costs as a result of the incident, it has not shown the services are specifically related to eligible emergency actions to save lives or protect public health and safety or improved property; the services are only for a limited period based on the exigency; and the costs are tracked and documented.  Therefore, these additional costs were ineligible increased operating costs to be able to maintain hospital operations.[11]

 

Conclusion

The Applicant has not demonstrated that the additional monitoring and security services are eligible emergency protective measures.  Therefore, the request for $17,806.87 in PA funding is denied.

 

 

[1] Memorial Hospital Pembroke; Memorial Hospital West; Memorial Regional Hospital; Memorial Regional Hospital South.

[2] The eligible costs consisted of rented portable AC units for $2,650.00 and a contract with Closed and Reopened Accordion Shutters for $4,484.00.

[3] The Applicant did not continue the appeal for reimbursement for blood platelets.

[4] The Applicant’s Second Appeal Letter incorrectly states that the total amount at issue is $17,806.87.

[5] Robert T. Stafford Disaster Relief and Emergency Assistance Act § 403, Title 42, United States Code (42 U.S.C.) § 5170b (2018); Title 44 of the Code of Federal Regulations (44 C.F.R.) § 206.225(a) (2018).

[6] 44 C.F.R. §§ 206.223(a)(1), 206.225(a)(3)(i); Public Assistance Program and Policy Guide, FP 104-009-2, at 57 (Apr. 1, 2018) [hereinafter PAPPG].

[7] PAPPG, at 58.

[8] Id., at 42.

[9] Id.

[10] Id., at 60-61.

[11] See FEMA Second Appeal Analysis, Georgetown Hosp. Sys., FEMA-4394-DR-SC, at 3 (Mar. 3, 2021).