Immediate Threat, Project Documentation and Closeout

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4497
Applicant	Central Campbell Fire District
Appeal Type	Second
PA ID#	037-U98WD-00
PW ID#	GMP 163299
Date Signed	2022-09-21T16:00:00

Summary Paragraph

The coronavirus (COVID-19) pandemic resulted in a major disaster declaration for the State of Kentucky.  The Central Campbell Fire District (Applicant) requested reimbursement in the amount of $130,794.90 under FEMA’s Public Assistance program for PCLS, bathroom renovations, supplies, PPE, and future costs.  FEMA captured the Applicant’s claimed costs in Grants Manager Project 163299.  FEMA issued a Determination Memorandum (DM) partially approving the cost of supplies.  However, FEMA issued a second DM denying the entire project, explaining some supplies were preventative measures and did not address an immediate threat.  The remaining costs fell below FEMA’s minimum project threshold and were not eligible for PA.  The Applicant appealed stating it purchased the PCLS because it needed to reduce the transmission of COVID-19.  Also, the Applicant asserted that the bathroom renovations allowed its employees to decontaminate after COVID-19 exposure, and  the cleaning supplies and PPE were used by employees and patients.  The FEMA Region IV Regional Administrator denied the appeal, finding that the Applicant did not demonstrate that the costs for the PCLS and bathroom renovations were necessary and reasonable.  Further, FEMA denied the PPE and disinfecting supplies costs because they fell beneath the minimum project threshold.  The Applicant submits a second appeal reinterating its first appeal argument regarding the PCLS.  The Applicant further explains the bathroom renovation was to add a temporary shower and the disinfecting supplies and PPE were eligible emergency protective measures. 

Authorities and Second Appeals

• Stafford Act § 403(a)(3).
• 44 C.F.R. §§ 206.202(d)(2), 206.223(a)(1), 206.225(a).
• PAPPG, at 57.
• FP 104-21-0003, at 4-5.
• FP 104-21-0004, at 3.
• Church of Saint Leo the Great, FEMA-4488-DR-NJ, at 2.

 

Headnotes

• For emergency protective measures to be eligible, the Applicant is responsible for showing the work is required due to an immediate threat.  For example, work and costs of medical care may be eligible for primary, temporary, and expanded medical facilities.   
  • The Applicant did not show the PCLS and bathroom renovations were to respond to an immediate threat or associated with primary, temporary, and expanded medical facilities.
• FEMA establishes a minimum project threshold for each fiscal year.  A project is not eligible if the total dollar value is less than the minimum threshold.
  • After the reduction of the ineligible costs, the project cost falls under the minimum threshold of $3,300.00, and, therefore, the costs are not eligible for funding.

Conclusion

FEMA finds the PCLS is not an eligible emergency protective measure under FEMA’s COVID-19 policies, including FEMA’s Medical Care Policy.  FEMA also finds the bathroom renovations are not eligible emergency protective measures.  Further, the costs requested for the remaining supplies and PPE fall below the minimum project cost threshold.  Therefore, the second appeal is denied.

Appeal Letter

Appeal Analysis

Background

The coronavirus (COVID-19) pandemic resulted in a major disaster declaration (DR-4497-KY) for the State of Kentucky on March 28, 2020, with an incident period beginning January 20, 2020, and continuing.  The Central Campbell Fire District (Applicant), a local government entity, requested reimbursement under FEMA’s Public Assistance (PA) program for $130,794.90 in equipment, including two power cots with load systems (PCLS) for ambulances, renovation of a bathroom, supplies, materials, personal protective equipment (PPE), and future costs, specifically anticipated costs for PPE.  FEMA captured the Applicant’s claimed costs in Grants Manager Project (GMP) 163299.  FEMA issued a first Determination Memorandum (DM) 12775, denying $127,416.26 for the PCLS, contract costs for bathroom renovations, miscellaneous supplies, window film, a shower hose, shower tent, an adapter for the shower, and future PPE costs.[1]  Subsequently, FEMA issued a second DM, 17320, denying $442.78 of the previously approved costs related to HEPA filters, decontamination shower supplies, in-house bath supplies, gowns, and tape for plastic covers for disinfecting areas.  FEMA stated that these supplies were preventative measures, and as such did not address an immediate threat but were rather increased operating costs of providing routine services.  Additionally, FEMA determined that the $2,935.86 in remaining costs fell under the minimum project threshold of $3,300.00.  Therefore, FEMA determined that the Applicant’s costs were ineligible for PA.  

First Appeal

On July 7, 2021, the Applicant submitted its first appeal.  The Applicant stated that it provided transportation to numerous COVID-19 patients in its ambulances and that most of its employees tested positive for COVID-19.  Specifically, the Applicant stated that the PCLS minimized COVID-19 exposure because employees are not required to stand close to the head of the patient while lifting, loading, and lowering the patient.  Regarding the renovation of its facility, the Applicant explained that it needed a decontamination room where employees could shower after exposure to COVID-19.  Consequently, the Applicant modified an existing bathroom to serve this purpose.  Finally, it stated that the PPE and cleaning supplies were for its employees and patients.  On August 6, 2021, the Kentucky Emergency Management (Recipient) transmitted the first appeal, recommending approval.

The FEMA Region IV Regional Administrator denied the appeal, finding that the Applicant did not demonstrate that the costs for the PCLS and the bathroom renovations were necessary and reasonable emergency protective measures.  Specifically, FEMA explained that it is the Applicant’s proper use of eligible PPE rather than the patient load system that reduces the threat of COVID-19.  Regarding the renovations, FEMA stated that the Applicant’s decontamination shower room exceeds what is necessary and reasonable to prevent COVID-19 transmission and as such, the costs were ineligible increased operating costs.  Additionally, FEMA denied the Applicant’s request for ongoing COVID-19 costs because future costs are not reimbursable.  Finally, FEMA denied the PPE and disinfecting supplies because these costs fell under the minimum project cost threshold and, therefore, were not eligible for funding. 

Second Appeal

On May 27, 2022, the Applicant submitted a second appeal, reiterating its prior arguments.  Additionally, the Applicant states that FEMA’s denial of funding is inconsistent with the law, regulations, and FEMA policies and quotes the disposition related to emergency work, immediate threat, and increased operating costs language included in the Code of Federal Regulations and the Public Assistance Program and Policy Guide. 

The Applicant states its ambulances typically required manual loading and necessitated one person at the head and one at the foot to load each person.  In contrast, the PCLS required only one employee at the patient’s foot to load the patients, minimizing the potential for COVID-19 transmission.  Regarding the bathroom renovation/shower installation, the Applicant stated that it cut a door, combined the men’s and women’s restrooms into one facility and installed a temporary shower.  Finally, with regard to supplies and PPE, it explained that it purchased disinfecting supplies, PPE, equipment, and uniforms, and other items as a protective measure for its employees.  The Recipient transmitted the Applicant’s second appeal with its support. 

 

Discussion

Immediate Threat

Eligible emergency work includes emergency protective measures that are necessary to save lives and protect public health and safety.[2]  To be eligible for PA, the items of work must be required as a result of the disaster, and the emergency protective measures must eliminate or lessen immediate threats to lives, public health, or safety.[3]  FEMA may provide assistance for eligible emergency protective measures implemented to reduce immediate threats to public health and safety, as well as certain measures to safely open and operate a facility in response to COVID-19.[4]  FEMA’s Coronavirus (COVID-19) Pandemic: Medical Care Eligible for Public Assistance policy (Medical Care Policy) provides that the work and cost of medical care for COVID-19 declarations may be eligible when associated with primary medical care facilities or temporary and expanded medical facilities.[5] 

Here, the Applicant requested reimbursement for the costs of contract services and materials to renovate a bathroom.  However, renovation to the bathroom and installation of the shower are not associated with any eligible activities provided in FEMA’s COVID-19 policies, or any comparable activity that eliminates or lessens an immediate threat.[6]  Additionally, the Applicant states that it installed PCLS in its ambulances to facilitate loading and transport of multiple COVID-19 patients.  However, ambulances are not among the types of facilities considered under the Medical Care Policy, and the work related to installing the PCLS in the Applicant’s ambulance to help with its ambulatory services is not considered eligible work under this or any of FEMA’s COVID-19 policies, and is therefore not eligible.[7]    

Application Procedures

FEMA establishes a minimum project threshold for each fiscal year.  A project is not eligible if the total dollar value is less than the minimum project threshold.[8]  The threshold for fiscal year 2020, applicable to COVID-19 declarations, is $3,300.00.[9]

Here the Applicant seeks reimbursement for supplies, PPE, and other unspecified miscellaneous materials.  Although some of these items may be eligible for reimbursement, their total cost falls below the minimum project threshold applicable to the declared incident, after FEMA reduces the ineligible costs associated with the bathroom renovation and PCLS installataion, and, therefore, they are not eligible for PA funding.[10]

 

Conclusion

FEMA finds the PCLS is not an eligible emergency protective measure under FEMA’s COVID-19 policies, including FEMA’s Medical Care Policy.  FEMA also finds the bathroom renovations are not eligible emergency protective measures.  Further, the costs requested for the remaining supplies and PPE fall below the minimum project cost threshold.  Therefore, the second appeal is denied.

 

[1] FEMA approved $3,378.64 for a HEPA filter, decontamination shower supplies, in-house bath supplies, gowns, and tape for plastic covers to secure decontamination areas, cleaning and disinfection supplies, a thermometer and PPE.

[2] Robert T. Stafford Disaster Relief and Emergency Assistance Act § 403(a)(3), Title 42, United States Code § 5170b(a)(3) (2018); Title 44 Code of Federal Regulations (44 C.F.R.) § 206.225(a)(1) (2019). 

[3] 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).

[4] FEMA Policy (FP) 104-21-0003, Coronavirus (COVID-19) Pandemic: Safe Opening and Operation Work Eligible for Public Assistance (Interim), at 5 (Sept. 8, 2020) (hereinafter O&O Policy).  The O&O Policy limits eligible emergency protective measures in response to COVID-19 to specific categories, such as, (1) purchasing and distributing face masks and personal protective equipment; (2) cleaning and disinfection, including the purchase of supplies in excess of an applicant’s regularly budgeted costs; (3) performing COVID-19 diagnostic testing; (4) screening and temperature scanning, including the purchase and distribution of hand-held temperature measuring devices or temperature screening equipment; and (5) purchasing and installing temporary physical barriers, including plexiglass barriers and signage to support social distancing.

[5] FEMA Policy (FP) 104-21-0004, Coronavirus (COVID-19) Pandemic: Medical Care Eligible for Public Assistance (Interim) (Version 2), at 3-6 (Mar. 15, 2021) [hereinafter Medical Care Policy].  The Medical Care Policy also establishes eligibility criteria for medical care associated with vaccinations.

[6] FEMA Second Appeal Analysis, Church of Saint Leo the Great, FEMA-4488-DR-NJ, at 2 (June 8, 2022) (finding that the Applicant’s bathroom renovations were not associated with any eligible activities in FEMA’s COVID-19 policies, including its O&O Policy).

[7] The Medical Care Policy defines primary and temporary medical facility as: (1) Primary Medical Care Facility: A facility owned and/or operated by an eligible PA Applicant that provides medical care services. This includes any licensed hospital, outpatient facility, rehabilitation facility, or long-term care facility.  (2) Temporary Medical Facility: a facility separate from the primary medical care facility that is used to provide medical care services when the primary medical care facility is overwhelmed by the declared event. Medical Care Policy, at 14.

[8] 44 C.F.R. § 206.202(d)(2).

[9] Per Capita Impact Indicator and Project Thresholds, FEMA.gov, https://www.fema.gov/assistance/public/tools-resources/per-capita-impact-indicator (last visited Sept. 15, 2022).

[10] FEMA is not making any determination about the eligibility of these items because the costs fall below the minimum threshold.