Temporary Facilities

Appeal Brief

Summary Paragraph

From September 7-11, 2011, Tropical Storm Lee caused extensive flooding in the state of New York. Public Assistance (PA) funding was authorized for Broome County, where the Applicant is located. The Applicant suffered damages to its MacArthur Elementary School (MacArthur), which required replacement, for which FEMA authorized PA funding. During the reconstruction at MacArthur, the Applicant relocated its operations to two separate facilities. FEMA extended the period of performance to December 31, 2016. On March 31, 2022, the New York State Division of Homeland Security and Emergency Services (Recipient) submitted a Large Project Final Accounting on behalf of the Applicant, and, in this, the Applicant requested a change in scope of work (SOW) to increase costs and hire an additional assistant principal and social worker to serve the two facilities. FEMA issued a determination letter partially approving the costs and funded $135,202.81 of the $548,234.07 requested by the Applicant, finding the additional employees were part of the Applicant’s normal operating budget and not hired in response to the emergency. The Applicant appealed, seeking the remaining funding. The Applicant argued that these positions were temporary positions and not funded by its normal budget. The Recipient forwarded the appeal to FEMA, with its support, and confirmed that it had drawn down the funding of $135,202.81. FEMA found that the determination letter had incorrectly granted funding for the salaries, finding that these costs were incurred for normal operational activity rather than eligible emergency protective measures. FEMA also found that, regarding the costs, all elements of Stafford Act § 705(c) were met and, therefore, FEMA was barred from deobligating and recovering the previously drawn down costs. FEMA found the remaining $413,031.26 claimed by the Applicant ineligible for PA funding. The Applicant files its second appeal, reiterating first appeal arguments. FEMA finds that the costs for additional employees at the temporary facility are ineligible as operating costs not directly related to eligible emergency protective measures. Therefore, this appeal is denied.

Authorities and Second Appeals

• Stafford Act § 403(a)(3)(D).
• PA Guide, at 38, 54-55, 71-74.
• DAP 9523.3, at 3.
• Louisiana Dept. of Public Safety and Corrections, FEMA-4277-DR-LA, at 3.

Headnotes

• FEMA will not fund utilities, maintenance, or operating costs, nor will FEMA fund the differential should these costs increase. FEMA may fund reasonable, short-term additional costs directly related to eligible work.
  • The costs requested by the Applicant are for costs of employees performing their typical job duties and are ineligible increased operating costs.

Conclusion

 FEMA finds that the costs for additional employees at the temporary facility are ineligible          operating costs not directly related to eligible emergency protective measures. Therefore, this appeal is denied.

Appeal Letter

Appeal Analysis

Background

From September 7-11, 2011, Tropical Storm Lee caused extensive flooding in New York, resulting in damage to MacArthur Elementary School (Facility) owned by Binghamton City School District (Applicant). The Applicant needed to replace the Facility and temporarily relocate school operations. It leased two buildings: St. Thomas Aquinas School (St. Thomas) for grades K-2 and St. Francis of Assisi School (St. Francis) for grades 3-5. To staff the two locations, the assistant principal and social worker from the Facility went to St. Thomas, and two new positions for an assistant principal and social worker were created for St. Francis. 

Accompanying its final Large Project Final Accounting, the Applicant submitted a request for a change in scope of work (SOW) on March 31, 2022, requesting costs for the salaries associated with the assistant principal and social worker positions for St. Francis, which were filled by different individuals at different times. FEMA issued a Determination Letter on October 5, 2022, partially approving the SOW change request and approving $135,202.81 for salaries associated with unbudgeted individuals who originally filled the roles, and who were hired in response to the disaster. FEMA denied, however, $413,031.26 for budgeted employees who filled the same roles after the original hires vacated the positions.

First Appeal 

The Applicant submitted a first appeal dated November 15, 2022, seeking $413,031.26 in denied costs. The Applicant stated that the assistant principal and social worker positions were filled as necessary temporary measures, while the Facility was rebuilt, and that these positions were not part of the Applicant’s normal budget; rather, they were temporary positions filled under the Applicant’s emergency budget. The Applicant asserted that New York law required it to provide the two temporary positions at St. Francis. The New York State Division of Homeland Security and Emergency Services (Recipient) forwarded the Applicant’s appeal on January 11, 2023, with its support. 

The FEMA Region 2 Regional Administrator issued a first appeal determination dated March 22, 2023, denying the appeal.[1] FEMA found that the salaries for the two positions were part of the normal operational activity of the Applicant’s temporary facility and, therefore, were ineligible on that basis. FEMA cited to a prior second appeal decision which addressed the distinction between costs to set up a temporary facility and the costs to operate it, finding that the operating costs were not eligible emergency protective measures. Furthermore, FEMA noted that while the costs to operate the school increased as a result of the disaster, they were nonetheless ineligible increased operating costs. FEMA found, however, that because as all the conditions of section 705(c) of the Robert T. Stafford Disaster Relief and Emergency Assistance (Stafford) Act were met with respect to the previously awarded $135,202.81, FEMA was barred from deobligating those funds.

Second Appeal

The Applicant files a second appeal in a letter dated May 22, 2023. The Applicant argues that the costs are eligible as they are related to public health and safety because the assistant principal and school social worker care for the mental and physical well-being of students. The Applicant acknowledges that a FEMA policy applicable to the disaster[2] limits FEMA’s funding of work related to temporary facilities but argues that this policy is focused on operations of a facility, analogous to buying copy machine paper, and that providing for the psychological stability of children is different and should be treated differently. The Recipient forwards the Applicant’s appeal, with its support, in a letter dated July 6, 2023. The Recipient restates the Applicant’s arguments and additionally argues that the role of an assistant principal and social worker fall into the category of eligible operating expenses, citing to FEMA policy that states, “reasonable short-term additional costs to an applicant that are directly related to accomplishing specific emergency health and safety tasks as part of eligible emergency protective measures may be eligible.”[3] 

Discussion

FEMA may provide PA funding for certain emergency protective measures essential to meeting immediate threats to life and property resulting from a major disaster, including the relocation of schools and other essential community services to temporary facilities.[4] FEMA will not fund utilities, maintenance, or operating costs, nor will FEMA fund the differential should these costs increase.[5] While the increased costs of operating a facility or providing a service may increase as a result of a disaster, these are generally not eligible.[6] However, FEMA may fund reasonable short-term additional costs that are directly related to accomplishing specific emergency health and safety tasks as part of eligible emergency protective measures.[7]

The Applicant is seeking funding for two positions, an assistant principal and a social worker, that it was required to have at the temporary facility. However, these positions were part of the Applicant’s normal predisaster operations related to providing educational services. Therefore, they are ineligible costs associated with operating the temporary facility.[8] Furthermore, while the Applicant argues that the assistant principal and social worker helped students who were suffering with mental health issues following the disaster, it has not demonstrated these increased operating costs were directly related to accomplishing specific emergency health and safety tasks as part of eligible emergency protective measures authorized by section 403 of the Stafford Act.[9] Accordingly, the salaries of the two positions are not eligible for PA funding.

Conclusion

FEMA finds that the costs for additional employees at the temporary facility are ineligible operating costs not directly related to eligible emergency protective measures. Therefore, this appeal is denied.