Request for Public Assistance, Private Nonprofit

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4480
Applicant	DeSales Media Group Inc.
Appeal Type	Second
PA ID#	047-UP212-00
PW ID#	RPA
Date Signed	2021-10-06T16:00:00

Summary Paragraph

The DeSales Media Group (Applicant), a Private Nonprofit (PNP), submitted a RPA as a result of COVID-19.  The Applicant listed an office space as its eligible facility and stated that its primary purpose was for communications.  The Applicant sought funding for its efforts to distribute food and personal protective equipment (PPE) to hospitals, nursing homes, food pantries, first responders, and priests, and to deliver iPads to Catholic schools and academies.  FEMA determined the Applicant qualified as a PNP but did not establish that it owned or operated an eligible facility that provided an eligible service.  FEMA also determined that the Applicant was not legally responsible for the claimed work.  The Applicant submitted a first appeal, asserting it operated eligible facilities and provided both critical and non-critical services at two office spaces, and therefore was eligible for Public Assistance funding.  The New York State Division of Homeland Security and Emergency Services (Grantee) supported the appeal.  FEMA Region II denied the first appeal, finding the Applicant did not demonstrate that it owns or operates an eligible PNP facility that provides an eligible service, and did not have legal responsibility to perform the claimed work.  The Applicant submits a second appeal, reiterating earlier arguments, and argues FEMA should consider the totality of the services it offers.  The Grantee supports the appeal.

Authorities and Second Appeals

• Stafford Act § 102(11)(A)-(B).
• 44 C.F.R. §§ 206.221, 206.222, 206.223.
• PAPPG, at 10-14, 43, 60.
• Fact Sheet, Coronavirus (COVID-19) Pandemic: Private Nonprofit Organizations, at 1-2.

Headnotes

• Eligible PNPs must own or operate a facility that provides an eligible service, which is limited to certain functions.  For PNPs, an eligible facility is one that provides an eligible service, which includes education, utilities, emergency, medical, and other essential social services. 
  • Here, the Applicant’s facilities do not provide an eligible service.

• A PNP may be legally responsible for services pursuant to an agreement with a government entity (e.g., sheltering or food distribution). In these cases, PA funding is provided to the legally responsible government entity, which then pays the PNP for the cost of providing those services under the agreement. 

• Here, the Applicant does not have an agreement with a legally responsible government entity to perform the claimed work.

Conclusion

FEMA finds the Applicant was not a PNP eligible for PA funding because it did not own or operate an eligible facility that provided an eligible service.  In addition, the Applicant did not undertake eligible emergency protective measures that it had legal responsibility to perform.  Therefore, this appeal is denied. 

Appeal Letter

Appeal Analysis

Background

On March 20, 2020, the President declared the COVID-19 pandemic a major disaster under FEMA-4480-DR-NY, authorizing Public Assistance (PA) funding for emergency protective measures throughout the State of New York.  In May 2020, DeSales Media Group Inc. (Applicant) submitted a Request for Public Assistance (RPA) to FEMA.  As part of the RPA, the Applicant completed FEMA’s standard Private Nonprofit (PNP) Questionnaire, in which it identified an office space for its External Affairs department, listed its primary purpose as “communications,” and noted that it provides media strategy and support to the Roman Catholic Diocese of Brooklyn.  The Applicant also stated that, since the COVID-19 pandemic began, its External Affairs department has transformed into an Emergency Task Force[1] (ETF) and sought funding for work performed.  The Applicant explained that its ETF distributed food and personal protective equipment (PPE) to health care facilities, emergency first responders, food pantries and priests; and coordinated delivery of iPads to Catholic schools and academies to facilitate remote learning.  The Applicant stated that it performed this work in coordination with local, state, and federal government representatives from March through May 2020.  In a Determination Memorandum dated September 19, 2020, FEMA determined the Applicant qualified as a PNP, but did not establish that it owned or operated an eligible PNP facility that provided an eligible service. 

 

First Appeal

The Applicant submitted a first appeal on January 13, 2021, asserting it operated eligible facilities and provided eligible services at two office spaces, and therefore was eligible for Public Assistance (PA).  In addition to the office space it identified in its PNP Questionnaire, the Applicant stated it also offered eligible services from executive and administrative office space it leased at Pacific Avenue in Brooklyn, New York.[2]  The Applicant stated its facilities provided eligible services, including: 1) critical educational services via its Catholic Telemedia Network (CTN), an online and on-demand network that provides curriculum-based instructional media to support educators; 2) critical emergency services through its ETF’s efforts; 3) health and safety services through issuing press releases and maintaining a coronavirus updates page on its website; and 4) a house of worship by televising masses. 

The New York State Division of Homeland Security and Emergency Services (Grantee) supported the appeal in a January 28, 2021 letter, stating that FEMA waived the “primary use” requirement for PNP facilities during the COVID-19 pandemic, and contending that FEMA incorrectly based its decision on the Applicant’s primary purpose instead of determining whether the Applicant performed any eligible services at the facilities. 

FEMA denied the first appeal in an April 23, 2021 decision, finding the Applicant did not demonstrate that it owns or operates an eligible PNP facility and did not have legal responsibility for the claimed work. 

 

Second Appeal

The Applicant submits a second appeal dated June 25, 2021, reiterating earlier arguments, and contends that FEMA should consider the totality of the services it offers, including educational, emergency, broadcasting, health and safety, and house of worship services.  The Applicant also states that the coordination of some of its work with elected officials and government offices establishes the Applicant’s legal responsibility for the work.  The Applicant attaches an appendix including media links to written and video coverage of ETF work, emails, and thank you notes from organizations it helped during the COVID-19 emergency.  The Grantee transmitted the Applicant’s appeal in a July 8, 2021 letter, expressing support. 

 

Discussion

Private Nonprofit

To be eligible for PA, a PNP applicant must own or operate an eligible facility.[3]  An eligible PNP facility is one that provides an eligible service, which include educational, utility, emergency, and medical services, and other essential social-type services to the general public.[4]

Federal regulations at 44 C.F.R. § 206.221(e) define specific PNP facility types to include:

• Educational facilities are defined as classrooms plus related supplies, equipment, machinery, and utilities of an educational institution necessary or appropriate for instructional, administrative and support purposes.[5]  Educational institutions are defined as primary and secondary schools or higher-education institutions meeting established criteria, including providing instructional services in a day or residential school.[6] 
• Emergency facilities are defined as buildings, structures, equipment, or systems used to provide emergency services, such as fire protection, ambulance, or rescue, to the general public, including the administrative and support facilities essential to the operation of such emergency facilities, even if not contiguous.[7]  
• Other essential governmental service facilities are PNP facilities that provide non-critical, but essential social services; they must be open to and provide services to the general public.[8] They include houses of worship, health and safety services, and public broadcasting.[9] Facilities that provide public broadcasting may also be eligible if they monitor, receive, and distribute communication from the Emergency Alert System.[10]  Administrative and support buildings essential to the operation of these PNP non-critical services are not eligible facilities.”[11] 

Here, the Applicant, a media strategy group,[12] provided online and televised educational content and helped deliver iPads to local Catholic schools and academies for remote learning.  However, the Applicant’s office spaces are not themselves educational institutions directly providing educational services from those facilities nor are the facilities administrative or support buildings providing essential operational support to such institutions.[13]  Accordingly, the Applicant office spaces are not educational facilities providing educational services. 

The Applicant also claims it provided emergency services from its office spaces through its food and PPE distribution efforts but, based on the documentation the Applicant provided, its two office spaces are used for carrying out administrative functions, and not for providing critical emergency services such as ambulance, fire protection, and rescue services.[14]   The office spaces are also not administrative or support buildings essential to the operation of emergency services such as ambulance, fire protection, or rescue services.

The Applicant states it provided essential social services as a house of worship from its Pacific Avenue office space.  Although the Applicant provided a media platform to televise masses, the Applicant did not itself own or operate a house of worship.

The Applicant also states it provided health and safety services by offering health and safety updates on its website and through online press releases.  However, the services the Applicant provided at its office spaces do not qualify as essential health services commonly provided by local governments, such as low-income housing or alcohol and drug rehabilitation programs.[15]

Finally, the Applicant does not provide public broadcasting because it states it does not monitor, receive, and distribute communications from the Emergency Alert System.

Thus, the Applicant has not demonstrated it owns or operates eligible PNP facilities that provide eligible services.[16]  

 

Legal Responsibility

For PNPs, eligible emergency protective measures are generally limited to activities associated with preventing damage to an eligible facility and its contents.[17]  Emergency services are usually the responsibility of State, Territorial, Tribal, or local governments.[18]  Therefore, PNPs are generally not legally responsible for those services and FEMA does not provide PA funding to PNPs for the costs associated with providing those services.[19]  When a PNP provides emergency services at the request of, and certified by, the legally responsible government entity, FEMA provides PA funding through that government entity as the eligible Applicant.[20]  In addition, in certain limited circumstances when essential components of a facility are urgently needed to save lives or protect health and safety, PNPs that own or operate an eligible facility and perform eligible work, such as providing emergency, medical or custodial care services for which they are legally responsible as a result of the COVID-19 incident, may be eligible for reimbursement of costs as a PA applicant.[21]

Here, although the Applicant’s emails with elected officials and local governments show support for the Applicant’s work, the Applicant did not perform emergency services at the request of, and certified by, a governmental entity, and has not demonstrated that it was otherwise legally responsible for the work.  In addition, the Applicant has not demonstrated that essential components of its office spaces were urgently needed to save lives or protect health and safety, nor did the Applicant provide such services in these facilities.

 

Conclusion

FEMA finds the Applicant was not a PNP eligible for Public Assistance funding because it does not own or operate an eligible facility that provides an eligible service.  In addition, the Applicant did not undertake eligible emergency protective measures that it had legal responsibility to perform.  Therefore, this appeal is denied.

 

[1] PNP Facility Questionnaire, DeSales Media Group Inc. (May 6, 2020).  In the PNP Questionnaire, DeSales Media Group Inc. (DeSales) identified office space at Tenth Ave., Brooklyn, N.Y., and stated it houses cable network NET TV, and newspapers The Tablet and Nuestra Voz.  In DeSales’s Certificate of Incorporation, the Tenth Ave. office space is described as DeSales’s “principal office.” 

[2] With regard to the leased office space at Pacific Ave. in Brooklyn, N.Y., Section 4.01 of the lease between DeSales and St. Joseph’s Roman Catholic Church of Brooklyn states that the “[Applicant] shall use and occupy the Demised Premises solely as and for its executive and related administrative offices and for no other purpose.”  See St. Joseph’s Roman Catholic Church of Brooklyn and DeSales Media Group, Inc., Lease, at 3 (Aug. 1, 2015); St. Joseph’s Roman Catholic Church of Brooklyn and DeSales Media Group, Inc., Lease Extension and Modification Agreement, at 1 (Jul. 9, 2018) (extending the initial lease agreement on the same terms and conditions from Aug. 1, 2018 – July 31, 2020).  In addition, in its second appeal, DeSales states that “[d]uring the time in which [the Applicant] occupied this facility, the following departments were housed at that location: Administration, Press, External Affairs, Catholic Telemedia Network, Programming and Production, Information Technology, Sales, Marketing, Human Resources, and Finance.”  See Letter from Applicant, to Pub. Assistance Section Chief, N.Y. State Div. of Homeland Sec. and Emergency Servs., at 5 (June 25, 2021).

[3] Title 44 Code of Federal Regulations (44 C.F.R.) §§ 206.222(b), 206.223(b) (2019); Public Assistance Program and Policy Guide, FP 104-009-2, at 11 (Apr. 1, 2018) [hereinafter PAPPG].

[4] Robert T. Stafford Disaster Relief and Emergency Assistance (Stafford) Act § 102(11), 42 U.S.C. § 5122(11) (2018); 44 C.F.R. § 206.221(e); PAPPG, at 11.

[5] 44 C.F.R. § 206.221(e)(1).

[6] 44 C.F.R. § 206.221(a); PAPPG, at 12, 162.

[7] 44 C.F.R. § 206.221(e)(4); PAPPG, at 12, 162.

[8] 44 C.F.R. § 206.221(e)(7); PAPPG, at 11.

[9] Stafford Act § 102(11)(B), 42 U.S.C. § 5122(11)(B); 44 C.F.R. § 206.221(e)(7); PAPPG, at 13.

[10] PAPPG, at 13.

[11] PAPPG, at 13.

[12] DeSales Media’s website describes DeSales as “an agency that provides strategy, planning and execution of digital, creative, technology, educational, video, and event services to Catholic entities in the Diocese of Brooklyn and beyond.”  See https://desalesmedia.org.

[13] PAPPG, at 12.

[14] Id., at 12-13.

[15] In the Federal Register, FEMA has explained that health and safety services are essential services that are commonly provided by all local governments and which directly affect the health and safety of individuals.  Low-income housing, alcohol and drug rehabilitation, programs for battered spouses, transportation to medical facilities and food programs are examples of health services under this definition.  See 58 Fed. Reg. 47992, 47993 (Sept. 14, 1993).

[16] FEMA did not conduct a primary use analysis because it found that the Applicant did not provide any eligible services at its facilities.  See PAPPG, at 16; see also Memorandum from Asst. Admin., Recovery Directorate, to FEMA Reg’l Adm’rs, Waiver of Private Nonprofit Primary Use and Primary Ownership Facility Policies Under the Coronavirus (COVID-19) Pandemic Declarations, at 2 (July 1, 2020).

[17] Id., at 43, 60; FEMA Fact Sheet Coronavirus (COVID-19) Pandemic: Private Nonprofit Organizations, at 1-2 (Mar. 31, 2020) [hereinafter Fact Sheet: Private Nonprofit Organizations] (Private entities, including for profit hospitals or restaurants, are not eligible for assistance from FEMA under Public Assistance.  However, state, local, tribal, and territorial government entities may contract with private entities to carry out eligible emergency protective measures.). 

[18] PAPPG, at 60.

[19] Id.

[20] Id.

[21] Fact Sheet: Private Nonprofit Organizations, at 2; see also PAPPG, at 43.