Immediate Threat

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4480
Applicant	St. John’s University, New York
Appeal Type	Second
PA ID#	081-16AAB-00
PW ID#	GMP 145523/PW 808
Date Signed	2022-12-27T17:00:00

Summary Paragraph

The coronavirus (COVID-19) pandemic resulted in a major disaster declaration for the State of New York.  St. John’s University, New York (Applicant) requested Public Assistance (PA) funding for future costs related to facility disinfection, filters, contracted labor costs associated with changing the filters, sprayers, touchless faucets, elevator mechanic services, disinfecting supplies, reconfiguration of spaces, signage, trailer rentals, and plexiglass.  FEMA issued a Determination Memorandum denying the contracted labor costs, touchless faucets, elevator mechanic services, reconfiguration of spaces, trailers rentals, and filters.  FEMA stated that these items are not listed as eligible in FEMA’s Coronavirus (COVID-19) Pandemic: Safe Opening and Operation Work Eligible for Public Assistance (Interim) (Version 2) policy (O&O Policy).  The Applicant appealed stating that the filters and contracted labor costs were necessary to increase air filtration; the elevator mechanic services were to assist with social distancing; the trailer rentals were to create additional space in its classrooms; and the touchless faucets were to reduce the need for cleaning and disinfection.  The FEMA Region II Regional Administrator remanded the cost of the filters to FEMA’s Joint Field Office for review, which FEMA later awarded.  The remaining items on appeal were considered ineligible under the O&O Policy.  The Applicant filed a second appeal stating that the list of eligible emergency protective measures in the O&O Policy is not exhaustive.   

Authorities and Second Appeals

• Stafford Act § 403(a)(3).
• 44 C.F.R. §§ 206.223(a)(1); 206.225(a).
• PAPPG, at 19, 57.
• FP 104-21-0003 (O&O Policy), at 4-5.
• Fact Sheet, Eligible Emergency Protective Measures, at 1-2.
• Memorandum from Assistant Adm’r., Recovery Directorate, FEMA, at 1.

Headnotes

• Eligible emergency work includes emergency protective measures that are necessary to save lives and protect public health and safety.  Under COVID-19 disaster declarations, FEMA may provide assistance for certain eligible emergency protective measures to safely open and operate a facility.
  • Here the Applicant did not demonstrate that the touchless faucets, trailer rentals, and elevator mechanic services were emergency protective measures taken in response to an immediate threat, nor were they associated with any of the eligible categories identified in FEMA’s O&O Policy.
  • Here the Applicant demonstrated that that the costs associated with work to change the filters is an eligible emergency protective measure in response to COVID-19. 

Conclusion

FEMA finds that the Applicant demonstrated that the costs associated with work to change the filters is an eligible emergency protective measure in response to COVID-19.  The remaining costs are denied because the Applicant has not demonstrated they were associated with or comparable to eligible emergency protective measures included under FEMA’s COVID-19 policies.  Therefore, this appeal is partially granted in the amount of $9,983.34.

 

Appeal Letter

Appeal Analysis

Background

The coronavirus (COVID-19) pandemic resulted in a major disaster declaration for the State of New York on March 20, 2020, with an incident period of January 20, 2020, and continuing.  St. John’s University, New York (Applicant), a Private Nonprofit (PNP) higher education institution, requested $1,350,488.00 in Public Assistance (PA) funding for future costs related to facility disinfection, sprayers, touchless faucets, elevator mechanic services, disinfecting supplies, reconfiguration of different spaces throughout the campus, signage, trailer rentals, plexiglass, Minimum Efficiency Reporting Value-13 (MERV-13) filters and contracted labor costs associated with changing the filters.  The Applicant claimed that it is responsible for the maintenance and safety of its facilities and the well-being of its students, faculty, staff, and guests. 

On November 10, 2021, FEMA issued a Determination Memorandum denying $444,488.00 of the Applicant’s requested costs.  FEMA stated that the ineligible items and services were not eligible emergency protective measures for the declared event.  Specifically, FEMA stated that certain items of work are not listed in FEMA’s Coronavirus (COVID-19) Pandemic: Safe Opening and Operation Work Eligible for Public Assistance policy (O&O Policy)[1] as eligible activities for the safe opening and operation of an eligible facility.  Further, FEMA found that the touchless faucets and elevator mechanic services were above and beyond what is necessary to address an immediate threat caused by COVID-19.

First Appeal

On January 9, 2022, the Applicant submitted its first appeal for $429,957.88, withdrawing some items requested and updating the costs of the remaining items.[2]  The Applicant claimed it changed its air filters to the MERV-13 filters based on guidance from the Centers for Disease Control and Prevention (CDC), which recommends increasing air filtration in buildings as much as possible.[3]  Regarding the elevator mechanic service,[4] the Applicant explained the elevator mechanic was needed to immediately address any elevator mechanical issue that occurred during the scheduled time for its students to return to campus to pick up their personal belongings.  Additionally, the Applicant explained that this measure was in accordance with the Interim Guidance for Higher Education during the COVID-19 Public Health Emergency (“NY COVID-19 Guidance”) issued by the New York State Department of Health (NYS DOH), which suggests universities plan for a safe departure of students from campus.[5]  Additionally, the Applicant stated that the touchless faucets reduced the number of cleanings required and resulted in the most cost-effective means of complying with relevant guidelines to safely reopen its facilities.  It also stated that this purchase complied with the O&O Policy’s allowance for cleaning and disinfection and within the prevailing CDC guidance on cleaning and disinfecting your facility.[6]  Finally, the Applicant explained that the trailer rentals were used to store classroom furniture to promote social distancing.  The Applicant stated this measure followed the NY COVID-19 Guidance and complied with the O&O Policy’s allowance for acquisition and installation of temporary physical barriers.  In a letter dated March 4, 2022, the New York State Division of Homeland Security and Emergency Services (Recipient) transmitted the first appeal with its approval.  The Recipient asserted that the measures taken by the Applicant to address COVID-19 were all suggested by public health authorities and were explicitly recognized as eligible measures under the O&O Policy.

On June 1, 2022, the FEMA Region II Regional Administrator stated that air disinfection was an eligible emergency protective measure and remanded the MERV-13 filters’ costs to FEMA’s Joint Field Office for review.  The remaining items on appeal (touchless faucets, elevator mechanic services, and trailer rentals) were considered ineligible under the O&O Policy.[7]

Second Appeal

On July 31, 2022, the Applicant submitted its second appeal for $311,017.28, reiterating its previous arguments.  The costs on appeal include the contracted labor costs to change the MERV-13 filters ($9,983.34); elevator mechanic services ($36,487.50), touchless faucets ($260,159.78), and trailer rentals ($4,386.66).  The Applicant contends that FEMA’s interpretation in the first appeal determination presumes that any emergency protective measure not specifically listed in the O&O Policy would be ineligible.  However, it notes that the list of eligible emergency protective measures in the O&O Policy is not exhaustive and states that limiting eligibility to those specifically listed in the O&O Policy is contrary to FEMA’s flexible approach to the COVID-19 declaration and the evolving viewpoint of eligible work.  Regarding the MERV-13 filters, the Applicant argues that since they were previously considered eligible by FEMA, the labor costs for their replacement should be considered eligible work.[8]  The Applicant uploaded an invoice dated September 16, 2020, for the work to install the MERV-13 filters.[9]

On September 27, 2022, the Recipient transmitted the Applicant’s second appeal recommending approval.  The Recipient points out that FEMA found the MERV-13 filters eligible because they were included in the “cleaning and disinfection” provision of the O&O Policy, and therefore the contracted labor costs associated with implementing this measure should be approved. 

 

Discussion

Immediate Threat

FEMA is authorized to provide assistance for emergency protective measures to save lives and protect public health and safety.[10]  For emergency protective measures to be eligible, the applicant is responsible for showing the work is required as a direct result of the declared incident and, for COVID-19 declarations, must be done in accordance with the guidance of or at the direction of appropriate public health officials.[11]  FEMA may provide assistance to eligible PA applicants for emergency protective 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 declared events.[12]  Such assistance includes the cleaning and disinfection and the purchase and installation of temporary physical barriers to promote social distancing.[13]  The cleaning and disinfection under the O&O Policy includes air disinfection in limited circumstances.[14]  High-efficiency filters are examples of eligible measures recommended by the CDC for air disinfection.[15]

Here, the Applicant requested reimbursement for the cost of touchless faucets, trailer rentals, and elevator mechanic services used during the opening of its facility during COVID-19.  The costs are not associated with any eligible emergency protective measures included under the O&O Policy or other FEMA COVID-19 policies.  FEMA finds that the touchless faucets do not qualify as cleaning and disinfection, and the trailer rentals do not qualify as temporary physical barriers under the O&O Policy.  Therefore, the touchless faucets, the trailer rentals, and the elevator mechanic services are not eligible for PA funding.

In addition, the Applicant seeks reimbursement for the contracted labor costs of changing the MERV-13 filters.[16]  FEMA has previously awarded the purchase of the filters as an eligible emergency protective measure.  Therefore, the contracted labor costs associated with changing the filters for air disinfection of its buildings is an eligible emergency protective measure related to cleaning and disinfection under FEMA’s COVID-19 policies.

 

Conclusion

The Applicant demonstrated that the contracted labor costs to change the MERV-3 filters is an eligible emergency protective measure in response to COVID-19.  The remaining costs are denied because the Applicant has not demonstrated they were associated with or comparable to eligible emergency protective measures included under the O&O Policy or other FEMA COVID-19 policies.  Therefore, this appeal is partially granted in the amount of $9,983.34.

 

[1] FEMA Policy 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].

[2] The Applicant withdrew the costs related to the following items: “[c]hange to fall academic calendar due to COVID - holiday coverage for Labor Day & Veterans Day 2020;” “[o]ther repairs on overtime to comply with social distancing reconfigurations” and “[r]econfiguration of off-campus spaces to create socially distant spaces.”  Memorandum from Authorized representative, St. John’s Univ., to State DAR Coordinator/Program Adm’r 2, NYS Div. of Homeland Sec. and Emergency Serv., at 3-4 (Jan. 9, 2022).

[3] See generally, Centers for Disease Control and Prevention, Ventilation in Buildings, https://www.cdc.gov/coronavirus/2019-ncov/community/ventilation.html (last visited Dec. 12, 2022) (citing American Society of Heating, Refrigerating and Air-Conditioning Engineers, Filtration / Disinfection, https://www.ashrae.org/technical-resources/filtration-disinfection#mechanical (last visited Dec. 12, 2022)). 

[4] The Applicant classified this cost as force account labor (FAL) overtime.  However, this cost is related to a labor contract with its elevator repair and maintenance vendor.

[5] See New York State Department of Health, Interim Guidance for Higher Education During the Covid-19 Public Health Emergency https://www.governor.ny.gov/sites/default/files/atoms/files/Higher_Education_Detailed_Guidelines.pdf (June 28, 2020) [hereinafter NYS Higher Education Guidance].

[6] See Centers for Disease Control and Prevention, Cleaning and Disinfecting Your Facility, Every Day and When Someone Is Sick, https://www.cdc.gov/coronavirus/2019-ncov/community/disinfecting-building-facility.html. (last visited Dec. 12, 2022).

[7] The first appeal determination did not address the contracted labor costs related to changing the filters.

[8] The JFO obligated $85,713.60 related to the Applicant’s revised/reduced request for the MERV-13 filters.

[9] See Collins Building Servs., Inc., Invoice No. CBS-3296341, at 1 (Sept. 16, 2020).

[10] Robert T. Stafford Disaster Relief and Emergency Assistance Act § 403(a)(3), Title 42, United States Code § 5170b(a) (2018);  Title 44 Code of Federal Regulations (44 C.F.R.) § 206.225(a) (2019).

[11] 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 (Apr. 1, 2018) (hereinafter PAPPG); O&O Policy, at 4-5; FEMA Policy 104-009-19, Coronavirus (COVID-19) Pandemic: Work Eligible for Public Assistance (Interim), at 3 (Sept. 1, 2020) [hereinafter FEMA Policy 104-009-19]; Fact Sheet, Coronavirus (COVID-19) Pandemic: Eligible Emergency Protective Measures, at 1-2 (Mar. 19, 2020) [hereinafter Fact Sheet, Eligible Emergency Protective Measures].

[12] FEMA Policy 104-009-19, at 3; Fact Sheet, Eligible Emergency Protective Measures, at 1-2; PAPPG, at 57.

[13] O&O Policy, at 5.

[14] Memorandum from Assistant Adm’r., Recovery Directorate, FEMA, to Regional Adm’rs, FEMA Regions I – X, at 1 (June 13, 2022).

[15] Id. at 2.

[16] Although the Applicant requested FAL overtime and cited the PAPPG’s FAL provisions, the documentation submitted shows that a private entity performed the work.  Since the Applicant’s employees did not perform the work, FAL rules and policies do not apply to this appeal.