Result of Declared Incident

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4332
Applicant	Baptist Hospitals of Southeast Texas
Appeal Type	Second
PA ID#	000-UTFZB-00
PW ID#	GMP 11188
Date Signed	2021-10-06T16:00:00

Summary Paragraph

From August 23 to September 15, 2017, rainfall from Hurricane Harvey impacted the roof of the Baptist Hospitals of Southeast Texas’ (Applicant) Baptist Orange Hospital (Facility) in Orange, Texas.  A contractor hired by the Applicant assessed that rainfall from the disaster overwhelmed the drainage capacity in roofs on Areas I through VI of the Facility.  FEMA created Grants Manager Project 11188 to document the restoration of the roofs, but denied Public Assistance (PA) funding for the project in a June 16, 2020 Determination Memorandum.  On July 22, 2020, the Applicant appealed, arguing that the roofs on Areas I, II, and V were within their functional service lives and in good condition prior to the disaster.  Based on its contractor’s assessment, it asserted that unprecedented rainfall from the disaster damaged the roofs at issue.  The FEMA Region VI Regional Administrator denied the appeal on May 6, 2021, finding that the available documentation did not support disaster-related damage to the Facility.  The Applicant submitted a second appeal dated June 10, 2021, reiterating its first appeal arguments, and again requesting PA funding to replace sections of the roofs on Areas I, II, and V.

Authorities and Second Appeals

• Stafford Act § 406.
• 44 C.F.R. § 206.223(a)(1).
• PAPPG, at 19-20, 118.
• Conway Hosp., FEMA-4394-DR-SC, at 3.
• Republic Cty. Highway Dep’t, FEMA-4230-DR-KS, at 4.

Headnotes

• To be eligible for PA funding, an item of work must be required as a result of the disaster.
  • The documentation provided by the Applicant does not enable FEMA to verify the predisaster condition of the Facility’s roofs in Areas I, II, or V.
  • Post-disaster assessments of the disaster’s impact conflict with the Applicant’s contractor’s assessment.
  • As a result, FEMA determines that the Applicant has not demonstrated the clear presence of disaster-related damage, nor has it demonstrated damage to the roofs at issue to such an extent that they required replacement.

Conclusion

The Applicant has not demonstrated that work to replace the roofs in Areas I, II, and V of the Facility is required as a result of the disaster.  Such work is ineligible for PA funding.  Therefore, this appeal is denied.

Appeal Letter

Appeal Analysis

Background

From August 23 to September 15, 2017, wind-driven rain from Hurricane Harvey impacted the roof of the Baptist Orange Hospital (Facility) in Orange, Texas.  The Facility is owned and operated by Baptist Hospitals of Southeast Texas (Applicant), an eligible Private Nonprofit.  The Facility’s roof is divided into six “Areas” (Areas I through VI).

Following Hurricane Harvey, the Applicant hired Zero/Six Consulting (Zero/Six) to inspect and assess various properties, including the Facility.  Zero/Six released a report finding that rainfall from the disaster “overwhelmed” the roof’s “drainage provisions … allowing for water accumulation that exceeded the protected height of flashings thus allowing water under the roofing system.”[1]  Zero/Six recommended replacing all or parts of the roofs in all six Areas.[2]

FEMA created Grants Manager Project (GMP) 11188 to document work to replace the Facility’s roof, and conducted a site inspection of parts of the Facility’s roof on June 4, 2018.  However, for the roofs inspected, the FEMA Site Inspectors (SI) were unable to verify any visible damage attributable to the disaster.[3]

The Applicant’s insurer, American International Group (AIG), hired Envista Forensics (Envista) to inspect and assess the roof assemblies on the Facility.  In an August 20, 2018 report of findings, Envista disagreed with the Zero/Six recommendations for all but one section of the roof in Area I.[4]  Envista provided differing assessments for the remaining Areas.  Generally, it found that subsurface materials in Areas I, II, III, IV, and VI were dry, with isolated exceptions around roof-mounted drains or in areas with evidence of historical rainwater ponding.  For Areas II and V, Envista noted evidence of pre-existing deterioration due to “long-term moisture retention.”[5]

At the Applicant’s request, FEMA conducted a second site inspection on October 10, 2019.  For the roofs on Areas I-III and VI, FEMA found that there was no visible wind damage from the disaster.  Additionally, it determined that the drainage capacity on each roof was sufficient to clear the rainfall that occurred during the disaster.  Therefore, in the absence of wind damage, and considering each roof’s drainage capacities, FEMA “could not validate any potential disaster related damage that is distinguishable from the pre-existing condition.”[6]  For the roof on Area IV, FEMA recorded no observations of post disaster condition, but stated that “being a gable roof no down drain calculations were required [sic].”[7]  Finally, for the roof on Area V, FEMA noted that the roof was “aged with many patches,” and determined that the roof’s drainage features “would meet the capacity requirements for the 60-minute 100-year event.”[8]

FEMA issued a Determination Memorandum signed June 16, 2020, denying Public Assistance (PA) funding for the project.  Based on the available information, FEMA found: (1) that there were indications of pre-existing damage to the Facility’s roof; and (2) the Applicant had not provided documentation indicating that the claimed damages were caused by the disaster.  Therefore, FEMA found that work to replace the roofs on Areas I through VI was ineligible for PA funding.

 

First Appeal

The Applicant submitted a first appeal dated July 22, 2020, requesting FEMA approve PA funding for estimated costs totaling $1,315,455.00 to replace the roofs on Areas I, II, and V of the Facility.  The Applicant stated that each roof was 10 years old and well within its useful service life at the time of the disaster.  It asserted that there was no pre-existing damage to any of the roofs.  In support, it referenced a Facility assessment (COPE report) prepared in July 2015 by AIG.  The Applicant stated that AIG found the Facility’s roof was routinely maintained and in good condition, with no previous damage, prior to the disaster.  The Applicant stated that the Facility’s roofs sustained subsurface damage during the disaster that could not be detected through visual observation.  It noted Zero/Six’s assessment that the disaster produced unprecedented rainfall, and asserted that the Facility’s roofs held standing water for 96 hours during the disaster.[9]  In a July 31, 2020 transmittal letter, the Texas Division of Emergency Management (Grantee) expressed support for the appeal.

The FEMA Region VI Regional Administrator denied the appeal on May 6, 2021.  FEMA found that the Applicant had not established the predisaster condition of the Facility’s roofs, and had not “provided sufficient reasons to rely solely on the Zero/Six report and dismiss the other contrary reports” prepared by Envista and FEMA’s SI.[10]  Therefore, FEMA determined that the Applicant had not demonstrated that the damages claimed were a direct result of the disaster, and work to restore the Facility’s roof was ineligible for PA funding.

 

Second Appeal

The Applicant submitted a second appeal dated June 10, 2021, again requesting PA funding for estimated costs totaling $1,315,455.00 to replace the roofs on Areas I, II, and V of the Facility.  The Applicant reiterates its first appeal arguments and provides a report prepared by Paragon Risk Engineering (Paragon) in August 2014.  It claims the Paragon report “supports that the roofs on the [hospital] campus were in good condition” prior to the disaster.[11]  In a July 6, 2021 transmittal letter to FEMA, the Grantee expresses support for the appeal.

 

Discussion

FEMA provides PA funding to eligible applicants for the repair, restoration, reconstruction, or replacement of facilities damaged or destroyed by disasters.[12]  To be eligible for PA funding, an item of work must be required as a result of the disaster.[13]  FEMA does not provide PA funding for repair of damage caused by deterioration, deferred maintenance, the applicant’s failure to take measures to protect a facility from further damage, or negligence.[14]  For buildings and building systems, distinguishing between damage caused by the incident and pre-existing damage may be difficult.[15]  Before making an eligibility determination, FEMA considers each of the following: the age of the building and building systems; evidence of regular maintenance or pre-existing issues; and the severity and impacts of the incident.[16]  It is the applicant’s responsibility to demonstrate that damage was caused directly by the declared incident, and where pre-existing damage exists, to distinguish that damage from the disaster-related damage.[17]

The Applicant states that roofs on Areas I, II, and V of the Facility were 10 years old at the time of the disaster, and were well within their useful service lives when the disaster began.  However, in its report, Zero/Six did not record the ages of the roofing systems for each of the six Areas.  FEMA could find no independent verification of the roof’s age for any of the three Areas on appeal in the other documentation provided with the administrative record.  Therefore, FEMA is unable to verify the age of the roofs on Areas I, II, or V, or the Applicant’s claim regarding their functional service lives.

The Applicant provides the Paragon report, the COPE report, and maintenance and inspection records to establish the predisaster condition of the Facility’s roofs.  The Paragon report, based on an inspection that occurred three years prior to the disaster, provides a one-word assessment (“good”) of roof conditions across the entire Facility;[18] however, it provides no further details, and does not provide an assessment that is specific to the Areas of the roof on appeal.  Additionally, Paragon recommended adding drains to the roof on Area II, as “roof drainage of this area is not adequately designed and could lead to ponding on the roof.”[19]  Nothing in the record indicates whether the Applicant followed Paragon’s recommendation.  In roof cores taken from the same section (“roof area B1”), Envista found “an older, aggregate-surfaced built-up roof, under which the perlite insulation was completely deteriorated and saturated – indicating historical and long-term moisture retention.”[20]  Thus, the Paragon report demonstrates a potential source for the pre-existing condition that Envista recorded in the Area II roof.

The COPE report, based on an inspection that occurred two years prior to the disaster, provides a similar one-word assessment (“adequate”) to describe the roofs on all six Areas of the Facility.[21]  The Applicant’s predisaster maintenance and inspection records, dated closer to the incident period, confirm that the rooftops of all buildings on its Orange campus, including the Facility, were inspected once, in May 2017.  However, the work order associated with this inspection does not record the observed condition of the roofs on Areas I, II, or V prior to the disaster.

Likewise, Zero/Six did not assess the predisaster condition of the Facility’s roofs in its report.  It nevertheless assessed that entire sections of the roofs in all six Areas were compromised by rainfall from the disaster, and recommended their complete replacement.  Pertinent to the present appeal, post-disaster photographs in the Zero/Six report show water or moisture in subsurface materials in the roofs on Areas I and II, and the general condition of the surface membrane in Area V.  Other imagery indicates areas in which the roofing systems failed uplift testing, or had wet or damaged subsurface materials.[22]  However, for Areas I, II, and V, Envista found that many of the roof systems were dry, with isolated exceptions around roof-mounted drains, or in areas with evidence of historical ponding or pre-existing deterioration.[23]  FEMA’s site inspection assessments also contradicted Zero/Six’s findings.  At both the June 2018 and October 2019 site inspections, FEMA was unable to attribute any damages to the roofs on Areas I and II to the disaster; at the latter inspection, the SI determined that the existing rooftop drainage features on Area V were sufficient to clear the rainwater that had fallen during the disaster.

Work must be required as a result of the declared incident to be eligible and the Applicant has the burden to demonstrate that the requested work is necessary.[24]  The Applicant’s records do not enable FEMA to verify the predisaster condition of the roofs on Areas I, II, and V of the Facility, and post-disaster assessments of the disaster’s impact, prepared by Envista and FEMA, conflict with the Applicant’s assessment, prepared by Zero/Six.  As a result, FEMA determines that the Applicant has not established the clear presence of disaster-related damage, nor has it demonstrated damage to the Facility’s roofs in the Areas at issue to such an extent that they required replacement.  Therefore, the work the Applicant is claiming on appeal is ineligible for PA funding.[25]

 

Conclusion

The Applicant has not demonstrated that work to replace the roofs in Areas I, II, and V of the Facility is required as a result of the disaster.  Such work is ineligible for PA funding.  Therefore, this appeal is denied.

 

[1] Zero/Six Consulting, Post Disaster Facility Evaluation of Baptist Hosps. of Se. Tex. (Orange Hospital), at 8 (Apr. 10, 2018) [hereinafter Zero/Six Report (Orange Hospital)].  Zero/Six released an initial report for all of the Applicant’s buildings on March 6, 2018; it issued a revised report for the Facility on April 10, 2018.

[2] Id. at 8-10.

[3] FEMA, Project Report (GMP 11188), at 1-7 (Undated) (stating that “[d]uring the site inspection, the Applicant and FEMA were unable to locate and document any visible storm related roof-damages due to rain water ponding, wind gust, or wind born debris on any of the inspected roofs [sic]”).  FEMA’s project report records this comment for the damage inventory (DI) numbers associated with Areas I, II, III, and VI;  FEMA did not inspect Area IV or V at the June 2018 site inspection; see, e.g., FEMA Region VI, Site Inspection Report, Damage #123689, Orange Hospital, at 2 (Undated) (stating in the notes section “Applicant did not request SI,” “site was not inspected”).

[4] See Envista Forensics, Report of Findings, Cmty. Hosp. Corp., Baptist Hosp. of Se. Tex., at 11 (Aug. 20, 2018).  Envista agreed that one section (“roof area G”) of Area I required replacement as a result of the disaster, “given the widespread evidence of moisture below the membrane … not necessarily corresponding to areas of historical ponding or membrane patches, and the modified bitumen membrane being adhered to a perlite cover board”).

[5] Id.

[6] E.g., FEMA Region VI, Site Inspection Report, Orange Hospital (Main Building), at 11 (Undated) (assessing the post-disaster condition of the roofing system on Area II of the Facility).  FEMA made the same assessment for Areas I, III, and VI.  Here, FEMA notes that the SI assessed that one section of the roof (“Facet K”) on Area VI “does not appear to provide the down drain capacity for a large event,” however, this section was not included in the Applicant’s claim and is therefore not pertinent to the present appeal; Id. at 22.

[7] Id. at 36.

[8] Id. at 36-37.  The SI also assessed a second section (“Facet B”) of the roof on Area V, however, this section was not included in the Applicant’s claim and is therefore not pertinent to the present appeal.

[9] The Applicant makes additional arguments regarding changes to AIG’s position on disaster-related damage; it also accuses FEMA of disregarding the Zero/Six assessment of damages, including the Applicant’s cost estimate; see Letter from Chief Exec. Officer, Baptist Hosps. of Se. Tex., to Reg’l Adm’r, FEMA Region VI, at 3 (July 22, 2020).

[10] FEMA First Appeal Analysis, Baptist Hosps. of Se. Tex., FEMA-4332-DR-TX, at 6 (May 6, 2021) (emphasis removed).

[11] Letter from Chief Exec. Officer, Baptist Hosps. of Se. Tex., to Reg’l Adm’r, FEMA Region VI, at 3 (June 10, 2021) [hereinafter Applicant Second Appeal].

[12] Robert T. Stafford Disaster Relief and Emergency Assistance Act § 406, Title 42, United States Code § 5172 (2012).

[13] Title 44 Code of Federal Regulations (44 C.F.R.) § 206.223(a)(1) (2016); Public Assistance Program and Policy Guide, FP 104-009-2, at 19 (Apr. 1, 2018) [hereinafter PAPPG].

[14] PAPPG, at 19-20.

[15] Id. at 118.

[16] Id.

[17] Id. at 19; FEMA Second Appeal Analysis, Conway Hosp., FEMA-4394-DR-SC, at 3 (July 7, 2021).

[18] Paragon Risk Eng’g, Prop. Risk Control Survey Report (Orange Hospital), at 9, 11 (Aug. 18, 2014).

[19] Id. at 6.  Paragon refers to the roof in question as the “North End (Radiology) Roof System,” and provides an aerial photograph of its location; Id. at 31.  The roof indicated in the photograph is part of the Area II roof as indicated in the Zero/Six report; Zero/Six Report (Orange Hospital), at 14.  Finally, the Applicant referred to Area II as the “Radiology/MRI” section of the Facility; Applicant Second Appeal, at 1.

[20] Envista Report, at 11.

[21] American Int’l Grp., Inc. (AIG), VHA Sw. Cmty. Health Commercial Prop. COPE Report, at 18 (July 15, 2015).

[22] Zero/Six Report (Orange Hospital), at 11-12, 14-15, 23-24.

[23] FEMA acknowledges that Envista agreed with Zero/Six’s recommendation for one section (“roof area G” in the Envista Report) located on the Area I roof, in part based on Envista finding “widespread” subsurface moisture absent evidence of historical ponding or membrane patches; supra note 4.  Envista’s report includes a photograph of the roof captioned “[n]o evidence of widespread ponded water across roof area G”; Envista Report, at attach. C.  However, FEMA’s site inspection photographs show numerous instances of standing water, staining, patching, and rippled sections of the surface membrane in this part of Area I; see FEMA Region VI, Site Inspector Photo Sheet, Baptist Hosps. of Se. Tex. (Baptist Hosp. Orange Part 4 (Roof facet “O”) (June 4, 2018).  Thus, the site inspection photographs contradict Envista’s finding, and nothing in the record provides further clarification for this discrepancy.

[24] 44 C.F.R. § 206.223(a)(1); FEMA Second Appeal Analysis, Republic Cty. Highway Dep’t, FEMA-4230-DR-KS, at 4 (July 26, 2017).

[25] Finally, FEMA notes that it reviewed the Applicant’s cost estimate during the analysis of the second appeal.  However, the issue of costs for permanent work under GMP 11188 is moot, as the Applicant has not demonstrated the claimed items of work were required as a result of the disaster.