Immediate Threat

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4480
Applicant	Union Springs Central School District
Appeal Type	Second
PA ID#	011-058A9-00
PW ID#	GMP 149617
Date Signed	2022-06-03T16:00:00

Summary Paragraph

The coronavirus (COVID-19) pandemic resulted in a major disaster declaration for the State of New York.  The Union Springs Central School District (Applicant) requested Public Assistance (PA) for the purchase and installation of various supplies, including: sneeze guards; mobile whiteboards for temporary classrooms; paint for social distancing signage; shower curtains for barriers in restroom facilities; and canopies for an in-person outdoor graduation ceremony.  FEMA issued a Determination Memorandum denying the cost of the supplies as increased operating costs.  The Applicant appealed, arguing that the supplies were necessary emergency protective measures to mitigate the threat of COVID-19 to public health, while safely maintaining educational operations.  The New York State Division of Homeland Security and Emergency Services (Grantee) recommended its approval, stating that temporary relocation of an essential community service is eligible under FEMA’s PA policy.  The FEMA Region II Acting Regional Administrator denied the appeal, determining that the acquisition and installation of physical barriers and signage to support social distancing were eligible emergency protective measures; yet the associated costs did not satisfy the minimum project threshold.  FEMA further concluded that the costs of the mobile whiteboards and canopies were not associated with eligible emergency protective measures under COVID-19.  The Applicant’s second appeal reiterates previously raised arguments.  The Grantee concurred.

Authorities and Second Appeals

• Stafford Act § 403(a)(3).
• 44 C.F.R. §§ 206.223(a)(1), 206.225(a).
• PAPPG, at 19, 76-77.
• Coronavirus (COVID-19) Pandemic: Eligible Emergency Protective Measures, at 1.

Headnotes

• FEMA may provide assistance to eligible PA applicants for measures implemented to reduce immediate threats to public health and safety, as well as certain measures to facilitate the safe opening and operation of eligible facilities in response to COVID-19, which may include the purchase and distribution of PPE, cleaning and disinfection, and temporary physical barriers or signage to support social distancing. 

• The Applicant has not demonstrated that the purchase of mobile whiteboards, canopies, and associated expenses were eligible emergency protective measure. 

Conclusion

The Applicant has not demonstrated that the purchase of mobile whiteboards and canopies were associated with eligible emergency protective measure in response to COVID-19.  Therefore, this appeal is denied. 

 

Appeal Letter

Appeal Analysis

Background

During the incident period of January 20, 2020, and continuing, the coronavirus (COVID-19) pandemic resulted in a major disaster declaration on March 20, 2020, for the State of New York.  The Union Springs Central School District (Applicant) requested Public Assistance (PA) for the purchase and installation of various supplies, including sneeze guards; mobile whiteboards for temporary classrooms; paint for social distancing signage; shower curtains for barriers in restroom facilities; and canopies for an in-person outdoor graduation ceremony.  To support its request, the Applicant submitted invoices and canceled checks with FEMA forms individually listing the material costs claimed.[1]  FEMA issued a Determination Memorandum on May 7, 2021, denying the costs of the supplies as increased operating costs.

First Appeal

The Applicant appealed FEMA’s denial on June 24, 2021.  The Applicant contended that the supplies were necessary emergency protective measures to mitigate the threat of COVID-19 to public health, while safely maintaining educational operations in compliance with guidance issued by the Governor’s proclamation on safe reopening.  The Applicant claimed that students were moved to the cafeteria and fitness room to maintain social distancing and because there were no wall-mounted whiteboards, it purchased the mobile whiteboards, which were necessary for teaching.  The Applicant stated that the canopies facilitated social distancing during the in-person, outdoor graduation ceremony undertaken.  To support its appeal, the Applicant submitted excerpts from the Centers for Disease Control and Prevention (CDC) and New York State Education Department (NYSED) publications, recommending mitigation strategies to reduce transmission of COVID-19 in schools, such as ventilation, physical barriers and social distancing.[2] 

The New York State Division of Homeland Security and Emergency Services (Grantee) transmitted the first appeal, recommending FEMA reconsider the eligibility of the project costs.  In its Memorandum, the Grantee stated that, under FEMA policy, if an Applicant provides an essential community service in a hazardous, inaccessible, or damaged facility due to the incident, temporary relocation of such services to another facility is eligible.[3]  The Grantee specified that the Applicant did not request relocation to another facility; it merely required the temporary conversion of non-instructional space inside its existing facilities which is consistent with the emergency protective measures stated in FEMA policy and the public health guidance.  The Grantee asserted that the pandemic rendered the Applicant’s facility unsafe unless administrative processes and physical space used to provide essential services were modified.

On November 9, 2021, the FEMA Region II Acting Regional Administrator denied the appeal.  FEMA found the costs of the mobile whiteboards and canopies were not associated with eligible emergency protective measures under COVID-19.  FEMA determined that the acquisition and installation of physical barriers (sneeze guards, shower curtains) and signage to support social distancing (paint) in its facility were eligible emergency protective measures under the disaster-specific guidance.[4]  However, FEMA noted the costs associated with the eligible supplies ($181.07) purchased by the Applicant did not satisfy the minimum project threshold.[5] 

Second Appeal

On January 7, 2022, the Applicant submitted its second appeal for $5,399.74 in costs related to mobile whiteboards and canopies and reiterated previously raised arguments.  The Applicant claims that FEMA’s determination does not consider the Applicant’s position on the issue, nor any relevant supporting documentation provided.  The Applicant notes FEMA’s determination ignored its own guidance after the Applicant exercised due diligence in interpreting and implementing the necessary requirements, resulting in a restricted scope of permissible work.[6]  The Grantee concurred and transmitted the Applicant’s second appeal to FEMA on March 4, 2022.

 

Discussion

FEMA may provide assistance to eligible PA applicants for measures implemented to reduce immediate threats to public health and safety, as well as certain measures to facilitate the safe opening and operation of eligible facilities in response to COVID-19, which may include the purchase and distribution of PPE, cleaning and disinfection, and temporary physical barriers or signage to support social distancing.[7]  All work must be required as a direct result of the declared incident and, for COVID-19 declarations, be done in accordance with the CDC guidance or at the direction of an appropriate public health official.[8] 

The Applicant states that the mobile whiteboards were purchased because the teachers needed the boards to teach in large spaces, such as the cafeteria or fitness room.  However, the educational purpose for which the Applicant used the whiteboards is not an eligible emergency protective measure under COVID-19.[9]  The Applicant requested PA for canopies to maintain social distancing during its in-person, outdoor graduation ceremony.  Although the purchase and installation of temporary physical barriers or signages to support social distancing may be eligible social distancing measures, the canopies were not necessary to facilitate social distancing.  As a result, the associated costs of the whiteboards and canopies are ineligible for PA funding.    

 

Conclusion

FEMA finds that the Applicant has not demonstrated that the purchase of mobile whiteboards and canopies were associated with eligible emergency protective measure in response to COVID-19.  Therefore, this appeal is denied.

 

[1] The items listed included: 2 Hex washer slotted concrete screws, totaling $27.50; 1 Condrive 1000 installation tool, totaling $55.60; Case of 25 Galvanized floor flange with holes, totaling $129.50; 10 individual Galvanized floor flange with holes, totaling $34.20; 6 Double sided large mobile whiteboard magnetic dry, totaling $1,698.54; 80 Quest Q64 10x10 instant up canopy, totaling $3,454.40; 5 Westcott handle letter opener, totaling $22.45; 1 case of Ameri Stripe -orange marking paint, totaling $57.95; 1 personal protection shield, sneeze guard 31”x24”, totaling $47.99; 72 White polka dot shower curtain with hooks, totaling $75.13.  Regarding its initial request for funding for a letter opener in the amount of $22.45, the Applicant agreed with FEMA’s ineligibility determination.

[2] Centers for Disease Control and Prevention, COVID-19 - School Reopening: Indicators to Inform Decision-Making (Sept. 15, 2020); NY State Educ. Dep’t., Required Updates to District Continuity of Learning Plans Due to Extended School Closures Caused by COVID-19 (Apr. 27, 2020).

[3] Public Assistance Program and Policy Guide, FP 104-009-2, at 76 (Apr. 1, 2018) [hereinafter PAPPG].

[4] FEMA Policy (FP) 104-21-0003, Coronavirus (COVID-19) Pandemic: Safe Opening and Operation Work Eligible for Public Assistance (Interim) (Version 2) (Sept. 8, 2021) [hereinafter O&O Policy].

[5] See Title 44 Code of Federal Regulations (44 C.F.R.) § 206.202(d)(2).  The minimum threshold for 2020 was $3,300.00.  FEMA, Per Capita Impact Indicator and Project Thresholds, https://www.fema.gov/assistance/public/tools-resources/per-capita-impact-indicator (last visited May 19, 2022).    

[6] FEMA, Planning Considerations for Organizations in Reconstituting Operations During the COVID-19 Pandemic, at 2-6 (Apr. 30, 2020).  This document provided recommendations for reopening but did not reference or attempt to clarify eligibility requirements for PA funding.

[7] Robert T. Stafford Disaster Relief and Emergency Assistance (Stafford) Act § 403(a)(3), Title 42, United States Code (42 U.S.C.) § 5170b(a)(3) (2018); 44 C.F.R. § 206.225(a)(1) (2019); Fact Sheet, Coronavirus (COVID-19) Pandemic: Eligible Emergency Protective Measures, at 1-2 (Mar. 19, 2020) [hereinafter Fact Sheet, Eligible Emergency Protective Measures]; O&O Policy, at 5. 

[8] 44 C.F.R. §§ 206.223(a)(1), 206.225(a)(3)(i); PAPPG, at 19;  FP-104-21-0003, at 4; Fact Sheet, Eligible Emergency Protective Measures, at 1-2.

[9] As provided in the O&O Policy eligible work is limited to: (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 physical barriers, including plexiglass barriers and signage to support social distancing.  See O&O Policy at 5.  Under limited circumstances, based on specific criteria, a temporary relocation of essential services to another facility might be an eligible emergency protective measure.  PAPPG, at 76.  However, the Applicant did not relocate to another facility, and the disaster did not damage the school, its critical utilities or operational items.