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Immediate Threat

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster4485
ApplicantDeer Park
Appeal TypeSecond
PA ID#201-19624-00
PW ID#PW 108/ GMP 151154
Date Signed2022-07-22T16:00:00

Summary Paragraph

The City of Deer Park (Applicant) requested Public Assistance (PA) funding for costs associated with the purchase of equipment, disinfection supplies, personal protective equipment (PPE), thermometers, high efficiency particulate air filters, and force account labor (FAL).  FEMA issued a Determination Memorandum, reducing the total project cost and denying costs associated with FAL overtime, miscellaneous ineligible supplies, and PPE storage.  FEMA stated the cost associated with these items was not eligible because it was not associated with an eligible emergency protective measure and represented an ineligible increased operating cost.  The Applicant appealed, contending that the work was for emergency protective measures and that the FAL overtime was required by its pre-existing pay policy to compensate “essential workers” who continued to work despite its suspended operations; in support it provided supply expenses and pay history documentation.  The Texas Division of Emergency Management forwarded the appeal with its supporting letter.  The FEMA Region VI Regional Administrator partially granted the appeal, finding that purchases of PPE, disinfecting materials, and thermometers were eligible as emergency protective measures and denied the remaining costs as ineligible increased operating costs.  The Applicant submits its second appeal for FAL overtime costs, reiterating its first appeal arguments.

Authorities and Second Appeals

  • Stafford Act §§ 403, 502.
  • 44 C.F.R. §§ 206.223(a)(1), 206.225(a)(3)(i).
  • PAPPG, at 19, 57.

Headnotes

  • FEMA is authorized to provide emergency protective measures to save lives and protect public health and safety.  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.
    • The Applicant did not directly tie the work to the performance of eligible work nor otherwise describe any emergency protective measures required due to an immediate threat resulting from the declared incident.

Conclusion

The Applicant did not show that the work performed is an emergency protective measure required due to an immediate threat resulting from the declared incident.  Accordingly, the associated FAL overtime costs are ineligible for PA funding and the second appeal is denied.

Appeal Letter

W. Nim Kidd             

Chief, Texas Division of Emergency Management               

Vice Chancellor – The Texas A&M University System

1033 La Posada Drive, Suite 370                                          

Austin, Texas 78752

 

Re:  Second Appeal – Deer Park, PA ID: 201-19624-00, FEMA-4485-DR-TX, Grants Manager Project 151154, Project Worksheet 108, Immediate Threat

 

Dear Chief Kidd:

This is in response to the letter from your office dated March 21, 2022, which transmitted the referenced second appeal on behalf of the City of Deer Park (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 $266,844.62 for claimed force account labor (FAL) overtime costs paid to its personnel to perform city services during the COVID-19 pandemic.  

As explained in the enclosed analysis, I have determined the Applicant did not show that the work performed is an emergency protective measure required due to an immediate threat resulting from the declared incident.  Accordingly, the associated FAL overtime costs are ineligible for PA funding.  Therefore, this 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:  George A. Robinson

Regional Administrator

       FEMA Region VI

Appeal Analysis

Background

On March 25, 2020, a major disaster was declared for the State of Texas as a result of the ongoing Coronavirus (COVID-19) pandemic.  The City of Deer Park (Applicant) requested $1,333,877.34 in Public Assistance (PA) funding for costs associated with the purchase of materials for use and storage, including disinfection supplies, personal protective equipment (PPE), thermometers, high efficiency particulate air filters, and force account labor (FAL) and equipment for operations of the Applicant’s multiple departments which provide municipal services[1] and its Emergency Operations Center (EOC).  On December 17, 2020, FEMA issued a Determination Memorandum, reducing the project total to $976,711.25 and denying eligibility of $357,166.09 for costs associated with FAL for overtime for the Applicant’s departments not conducting emergency protective measures, miscellaneous ineligible supplies, and storage of PPE beyond what is necessary to store a projected 60-day supply.  FEMA determined the cost associated with these items was not eligible for PA because it was not associated with an eligible emergency protective measure and represented an ineligible increased operating cost.

First Appeal

On February 26, 2021, the Applicant appealed FEMA’s denial of reimbursement of FAL overtime and supplies, adjusting its disputed claimed amount to $286,356.45.[2]  The Applicant asserted the FAL overtime was required by its pre-existing pay policy to compensate “essential workers” who continued to work to address immediate needs despite suspending most of its other operations.[3]  The Applicant provided a list of purchased cleaning and health screening supplies which it contended were eligible disaster-related expenses, with all materials utilized directly for COVID-19 and no stockpile remaining.  On March 16, 2021, the Texas Division of Emergency Management (Grantee) transmitted the appeal to FEMA, with its letter supporting the appeal.  

On June 9, 2021, FEMA sent a request for information seeking clarification of the Applicant’s reasoning for the amount of FAL overtime work claimed, identification of which hours were in question, an explanation regarding which performed activities qualified as eligible emergency protective measures, and additional supporting documentation.  On June 18, 2021, the Applicant responded, citing  Department of Homeland Security, Cybersecurity and Infrastructure Security Agency (CISA) guidance[4] regarding certain categories of personnel that are not traditionally public safety personnel but are nonetheless essential, and arguing, therefore, that its employees’ work should be eligible as emergency protective measures. 

On January 10, 2022, FEMA partially granted the appeal, awarding $5,261.83.  FEMA found that, under FEMA Policy FP 104-009-19[5], the Applicant’s purchase of commodities and supplies including PPE, disinfecting materials, and thermometers were eligible as emergency protective measures.  FEMA denied the remaining costs, determining the FAL overtime for the Applicant’s departmental operations, and the purchase of ultra-violet disinfectant lamps, were not eligible emergency protective measures but instead were increased operating costs.

Second Appeal

On March 10, 2022, the Applicant submitted its second appeal, disputing only the denial of FAL totaling $266,844.62 and reiterating its first appeal arguments.  The Applicant also submitted a Clarification Memorandum and argues that certain special functions within local government, including sanitation and water/wastewater operations, are identified by CISA as essential to health and safety.  It also provided examples of some its non-public safety personnel who performed work and attached its Time and Attendance History Reports from March 25 to

May 3, 2020.  On March 21, 2022, the Grantee transmitted the Applicant’s appeal to FEMA, with its supporting letter.

 

Discussion

FEMA is authorized to provide emergency protective measures to save lives and protect public health and safety.[6]  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.[7]  FEMA policy provides examples of emergency protective measures that FEMA funds under its PA program, such as transporting and prepositioning equipment and  other resources for response, EOC-related costs, supplies and commodities, and medical care and transport.[8]  Under the COVID-19 Declaration, eligible emergency protective measures taken to respond to COVID-19 at the direction or guidance of public health officials may be reimbursed under Category B of FEMA’s Public Assistance program, including reimbursement for state, tribe, territory and/or local government force account overtime costs.[9]

Here, the Applicant documented its costs for FAL overtime incurred by its employees and states the work was necessary to ensure that its core essential functions of public safety and public health would continue to be performed and prioritized.  However, the work is not associated with any eligible activities taken at the direction or guidance of a public health official, or any comparable activity that eliminates or lessens an immediate threat from COVID-19.  While the Applicant cites guidance from CISA as a justification for classifying this work as emergency protective measures and the employees involved as essential workers, the CISA list is advisory in nature, is not a federal directive or standard, and is not intended to identify employees or activities that meet PA eligibility requirements for emergency work, including the requirement that the work address an immediate threat resulting from the declared incident.[10]  

Further, although the Applicant’s Time and Attendance Reports categorize the activity performed by its employees as “Emergency Work,” these records describe routine work activities as employees routed and answered emails and phone calls; processed mail, permits, jail and warrant paperwork, time sheets and payroll and various payments; scheduled inspections, court dockets, and council meetings; collected solid waste and heavy trash; responded to animal control complaints; mowed and weeded parks and rights of way; and provided IT and website support.  Therefore, FEMA finds that the employees performed normal, albeit essential, municipal functions, rather than work required as a result of the declared incident, the COVID-19 pandemic.  The Applicant’s Time and Attendance Reports also claimed additional hours simply listing the work as “Emergency Work” with no further description of what activities this work entailed.  The lack of descriptions for these claims prevents FEMA from determining whether these hours included emergency protective measures eligible for PA funding.  As such, the Applicant’s associated FAL overtime costs are not associated with emergency protective measures and therefore are ineligible for PA funding.

 

Conclusion

The Applicant did not show that the work performed is an emergency protective measure required due to an immediate threat resulting from the declared incident.  Accordingly, the associated FAL overtime costs are ineligible for PA funding and the second appeal is denied.

 

[1] See City of Deer Park, Time and Attendance History Reports, Employee Detail by Department (Oct. 1, 2020) (displaying activity from Mar. 25, 2020 to May 31, 2020).  The Applicant’s municipal services departments include, but are not limited to, traffic, library, administration, courts, finance, IT, stormwater/wastewater, humane, central warehouse, parks, building maintenance, sanitation, EMS, public works, and engineering.

[2] Letter from Dir., Office of Emergency Servs, City of Deer Park, to Chief, Tex. Div. of Emergency Mgmt., and Reg’l Adm’r, FEMA Region VI (Feb. 26, 2021).  The adjusted disputed claimed amount includes $266,844.62 for FAL and $19,511.83 for supplies.

[3] Id.  In support of its FAL eligibility, the Applicant claimed that it operated under federal, state, and local guidance, including the White House’s “15 Days to Slow the Spread” initiative, Texas Governor Abbott’s executive order pertaining to COVID-19 preparedness and statewide continuity of essential services, and Harris County Judge Lina Hidalgo’s “Stay Home, Work Safe” order.

[4] Advisory Memorandum from Dir, Cybersecurity and Infrastructure Security Agency (CISA), Identification of Essential Critical Infrastructure Workers During COVID-19 Response (Mar. 28, 2020) [hereinafter Advisory Memorandum]; CISA, Guidance on the Essential Critical Infrastructure Workforce: Ensuring Community and National Resilience in COVID-19 Response (Version 2.0) (Mar. 28, 2020).

[5] FEMA Policy FP 104-21-0003, Coronavirus (COVID-19) Pandemic: Safe Opening and Operation Work Eligible for Public Assistance (Sept. 8, 2020).

[6] Robert T. Stafford Disaster Relief and Emergency Assistance Act §§ 403, 502, Title 42, United States Code §§ 5170(b), 5192 (2018); Title 44 Code of Federal Regulations (44 C.F.R.) § 206.225(a) (2019).

[7] 44 C.F.R. §§ 206.223(a)(1), 206.225(a)(3)(i); Public Assistance Program and Policy Guide, FP 104-009-2, at 19, 57 (Apr. 1, 2018) [hereinafter PAPPG].

[8] PAPPG, at 58.

[9] Fact Sheet, Coronavirus (COVID-19) Pandemic: Eligible Emergency Protective Measures, at 1-2.  A later FEMA policy superseded the aforementioned Fact Sheet for work performed on or after September 15, 2020, that authorized assistance for force account overtime costs, costs related to hiring temporary employees, and contract labor costs only when necessary to perform otherwise eligible emergency work listed in the policy (e.g., medical care, non-congregate medical sheltering, food and water purchase and distribution, communications of general public health and safety, and mass casualty management).  See FEMA Policy FP 104-009-19, Coronavirus (COVID-19) Pandemic: Work Eligible for Public Assistance (Interim), at 1, 3-4 (Sept. 1, 2020).

[10] Advisory Memorandum. (“The list is advisory in nature. It is not, nor should it be considered, a federal directive or standard.”)