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Increased Operating Costs, Immediate Threat

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster4562
ApplicantJackson County
Appeal TypeSecond
PA ID#029-99029-00
PW ID#GMP 172678
Date Signed2022-06-23T16:00:00

Summary Paragraph

Between September 7 and November 3, 2020, the Oregon Wildfires (Almeda and South Obenchain Wildfires), and straight-line winds caused severe damage throughout the state of Oregon.  Jackson County (Applicant) offered, but did not require, testing to its staff that had been deployed in fire-related roles as a precautionary health screening so employees would know the direct effect the fire response had on their health.  FEMA denied funding because the baseline medical testing represents ineligible increased operating costs.  FEMA found that medical care costs, such as laboratory services, are ineligible increased operating costs unless the emergency medical delivery system within a declared area is destroyed, severely compromised, or overwhelmed, so the costs were denied.  The Applicant’s first appeal stated that the denial was based on the incorrect policy and that the testing was eligible as an expense to operate a facility.  The FEMA Region X Regional Administrator denied the first appeal, finding that as the testing was optional, it could not be required to perform eligible work.  The Applicant appealed this decision, stating that baseline testing is considered best practice, but due to bargaining agreements it could not be mandated to personnel, which should not impact eligibility for PA funding. 

Authorities and Second Appeals

  • Stafford Act § 403.
  • 44 C.F.R. §§ 206.223(a)(1), 206.225(a).
  • PAPPG, at 51, 96, 110-111, 113-114, 117.

Headnotes

  • FEMA is authorized to provide PA funding for emergency protective measures to save lives, protect public health and safety, and to protect improved property. Under limited circumstances based on specific criteria, expenses related to operating a facility or providing emergency services may be eligible.  Expenses related to medical care are eligible when the emergency medical delivery system within a declared area is destroyed, severely compromised, or overwhelmed.
    • The Applicant incurred costs as a result of the incident, however, it has not demonstrated that these additional costs were eligible emergency protective measures to save lives or protect public health and safety.

Conclusion

FEMA finds that the Applicant has not demonstrated that baseline testing is an eligible emergency protective measure.  Therefore, the appeal is denied.

 

Appeal Letter

Andrew Phelps                       

Director                                                                      

Oregon Office of Emergency Management               

P.O. Box 14370                                             

Salem, Oregon 97309-5062   

 

Re:  Second Appeal – Jackson (County), PA ID: 029-99029-00, FEMA-4562-DR-OR, Grants Manager Project (GMP) 172678 – Increased Operating Costs, Immediate Threat  

 

Dear Mr. Phelps:

This is in response to your letter dated March 28, 2022, which transmitted the referenced second appeal on behalf of Jackson County (Applicant).  The Applicant is appealing the U.S. Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of funding in the amount of $15,420.00 for administrative fees and lab testing (baseline testing) for responders deployed to the Oregon Wildfires.  

As explained in the enclosed analysis, I have determined that the Applicant has not demonstrated that baseline testing is an eligible emergency protective measure.  Therefore, the appeal is denied.

Please inform the Applicant of my decision.  This determination is the final decision on this matter pursuant to 44 C.F.R. § 206.206, Appeals.

 

                                                                                                             Sincerely,

                                                                                                               /S/

                                                                                                             Ana Montero

                                                                                                             Division Director

                                                                                                             Public Assistance Division

 

Enclosure

cc:  Willie G. Nunn  

Regional Administrator

FEMA Region X

 

Appeal Analysis

Background

Between September 7 and November 3, 2020, the Oregon Wildfires (Almeda and South Obenchain Wildfires) and straight-line winds caused severe damage throughout the State of Oregon.  This resulted in a major disaster declaration on September 15, 2020.  Jackson County (Applicant) offered, but did not require, baseline testing to its staff that had been deployed in fire-related roles as a precautionary health screening measure so employees could know any effects the fire response had on their health.

The Applicant requested $15,420.00 in Public Assistance (PA) funding to cover the costs of the testing.  These costs included onsite administrative fees and labs for lead levels, comprehensive metabolic panel testing, complete blood count, testing for chlorohydrocarbons and assay of cyanide, as well as the review of employee-completed health questionnaires and completion of a few employee labs that were done at a health provider facility.

On September 9, 2021, FEMA issued a Determination Memorandum (DM) stating that the costs for which the Applicant requested PA funding are not eligible because the baseline medical testing represents ineligible increased operating costs.  FEMA found that medical care costs, such as laboratory services, are ineligible increased operating costs unless the emergency medical delivery system within a declared area is destroyed, severely compromised, or overwhelmed.  As a result, FEMA denied the request for $15,420.00.

First Appeal

The Applicant appealed the DM in a letter dated September 10, 2021.  The Applicant first stated that FEMA referenced the incorrect section of policy when making the determination and should have instead looked to its policy on Expenses Related to Operating a Facility or Providing a Service.[1]  The Applicant asked FEMA to reconsider its “Baseline Testing of First Responders” memorandum, dated April 26, 2021, in which the Applicant expressed its position that the baseline testing is an eligible emergency protective measure and not an increased operating cost.[2]  In this memorandum, the Applicant stated that testing was limited to employees engaged in assisting residents to evacuate fire zones, which was done to save lives.  Additionally, the Applicant asserted the costs incurred were for a limited timeframe and were based on the emergency situation, and baseline testing is not the Applicant’s normal practice.  The Applicant also noted that these costs were tracked and documented, as required.  In a letter dated November 8, 2021, the Oregon Office of Emergency Management (Grantee) forwarded the Applicant’s first appeal to FEMA Region X but did not include a written recommendation.

On January 28, 2022, the Regional Administrator for FEMA Region X denied the Applicant’s first appeal, stating the Applicant had not demonstrated that baseline testing was a necessary emergency protective measure, or an eligible expense related to operating a facility or providing a service.  FEMA found that while the work may be related to providing a service, the service in question was optional and therefore could not be considered required for the performance of eligible work.  FEMA did not consider the work an eligible emergency protective measure as it was not necessary to eliminate or lesson immediate threats to public health or safety.  Additionally, FEMA found that fringe benefits would reasonably be expected to cover administrative and medical monitoring costs, such as the baseline testing.

Second Appeal

The Applicant’s second appeal again states that baseline testing would not have occurred but for the fires, and this was found to be a best practice as a lesson learned after first responders from September 11, 2001, developed long term respiratory-related health conditions.  The Applicant also states that the act of baseline testing is analogous to the idea of water testing, listed as an eligible cost in FEMA policy.[3]  Additionally, the Applicant states that the tests’ optional nature should not affect their eligibility, as applicable collective bargaining agreements limit the Applicant’s ability to impose requirements on its employees.  Finally, the Applicant states that the assumption that baseline testing is included as a force account labor fringe benefit is not a reasonable assumption, as there are limitations to the services provided as part of the employees’ health care benefits.  The Grantee forwarded the Applicant’s second appeal with a recommendation of approval.

 

Discussion

FEMA is authorized to provide assistance or emergency protective measures to save lives, protect public health and safety, or protect improved property.[4]  For emergency protective measures to be eligible, the applicant is responsible for showing the work is required due to an immediate threat resulting from the declared incident.[5]  Eligible emergency protective measures may include medical care and transport.[6]  Under limited circumstances based on specific criteria, expenses related to operating a facility or providing emergency services may be eligible.[7]  Expenses related to medical care are eligible when the emergency medical delivery system within a declared area is destroyed, severely compromised, or overwhelmed.[8] 

Here, the participation in these optional baseline tests and labs is not a direct response to the immediate threat of the declared incident: it does not directly address the wildfires, nor is it required for the first responders to address the threat.  The Applicant has not shown that baseline testing is an eligible medical care expense because there is no documentation to suggest that emergency medical delivery systems within the declared area were destroyed, severely compromised, or overwhelmed.  Additionally, despite the Applicant’s comparison, baseline testing is not analogous to water testing and treatment, which help counter a specific and immediate threat to public safety posed by water toxicity or contamination in a community.[9]  Baseline testing helps monitor the effects on individuals responding to the wildfires and does not address the immediate threat to public safety of the wildfires themselves.  FEMA finds that the baseline testing was incidental to providing an emergency service but was not an eligible emergency protective measure to save lives or protect public health or safety, and thus it is ineligible for PA funding.

 

Conclusion

The Applicant has not demonstrated that baseline testing is an eligible emergency protective measure.  Therefore, the appeal is denied.

 

[1] Public Assistance Program and Policy Guide, FP 104-009-2, at 113-14, 117 (June 1, 2020) [hereinafter PAPPG].  The DM relied on FEMA policy in the Public Assistance Program and Policy Guide referring to ‘Medical Care,’ which pertains to emergency medical care of survivors.

[2] Letter from Cnty. Auditor, Jackson Cnty., at 1 (Apr. 26, 2021).

[3] PAPPG, at 113 (Potentially eligible increased operating costs include, but are not limited to, costs for: water testing and treatment in the immediate aftermath of the incident to counter a specific threat).

[4] Robert T. Stafford Disaster Relief and Emergency Assistance (Stafford) Act § 403, Title 42, United States Code (42 U.S.C.) § 1570b (2018); Title 44 Code of Federal Regulations (44 C.F.R.) § 206.225(a) (2019).

[5] 44 C.F.R. §§ 206.223(a)(1), 206.225(a)(3)(1); PAPPG, at 51.

[6] PAPPG, at 110.

[7] Id. at 96, 111, 113-14.  Increased costs of operating a facility or providing a service are generally not eligible, even when directly related to the incident.  Expenses related to operating a facility or providing a service are only eligible if: the services are specifically related to eligible emergency actions to save lives or protect public health and safety or improved property; the services are only for a limited period based on the exigency; and the costs are tracked and documented.

[8] Id. at 117.

[9] Id. at 113 (“Increased operating costs that may be eligible for a limited time, include . . .  [w]ater testing and treatment, including supplies, in the immediate aftermath of the incident to counter a specific threat.”).