Force Account Labor & Equipment Costs, Immediate Threat

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4586
Applicant	University of Texas Medical Branch
Appeal Type	Second
PA ID#	000-UV3S5-00
PW ID#	GMP 188981
Date Signed	2023-04-21T16:00:00

Summary Paragraph

During the incident period, February 11-21, 2021, a winter storm impacted the University of Texas Medical Branch (Applicant). The Applicant requested force account labor (FAL) for sleep time paid to staff who remained at the Applicant’s hospital due to unsafe road conditions resulting from the disaster so that the facility remained operational, and an increase in patients during the incident. FEMA wrote Grants Manager Project 188981 to document the work and costs. In a Determination Memorandum dated March 23, 2022, FEMA denied $324,259.30 in costs that were designated as sleep time, finding that the Applicant had not demonstrated the costs were necessary to address an immediate threat and were instead, increased operating costs for continued operations. The Applicant filed a first appeal dated June 1, 2022, stating the sleep time was eligible as standby time. The Texas Division of Emergency Management (Recipient) transmitted the first appeal to FEMA, in a letter dated July 3, 2022, in support of the Applicant’s position. FEMA Region 6 Regional Administrator denied the first appeal, in a letter dated October 11, 2022. FEMA found that the Applicant’s sleep time was an ineligible increased operating expense. The Applicant files a second appeal reiterating prior first appeal arguments. The Recipient forwards the second appeal, in a letter dated December 22, 2022, to FEMA in support of the Applicant.

Authorities and Second Appeals

• Stafford §403(a)(3).
• 44 C.F.R. §§ 206.223(a)(1), 206.225(a)(3)(i).
• PAPPG at 51, 65, 96, 113, 114, 117-118.
• York (Town of), FEMA-4367-DR-ME, at 3, n.12.

Headnotes

• FEMA may provide assistance for labor costs related to intermittent standby time for staff conducting eligible emergency medical care resulting from the disaster. Costs must be directly tied to the performance of eligible work and adequately documented.
  • Here, the Applicant has not provided documentation demonstrating the staff who were paid those sleep time/standby costs conducted eligible disaster-related emergency medical care.
• Increased costs of operating a facility or providing a service are generally not eligible, even when directly related to the incident. However, short-term increased costs that are directly related to accomplishing specific emergency health and safety tasks as part of emergency protective measures may be eligible if certain requirements are met.
  • The Applicant has not demonstrated the requested FAL constitutes short-term increased operating costs directly related to the provision of eligible medical care.

Conclusion

FEMA finds that the Applicant had not demonstrated its requested FAL is directly tied to the performance of eligible work. Accordingly, this second appeal is denied.

Appeal Letter

Appeal Analysis

Background

During the incident period of February 11-21, 2021, a winter storm impacted the State of Texas, where the University of Texas Medical Branch (Applicant) is located.[1] The Applicant requested $400,135.76 in Public Assistance (PA) funding for force account labor (FAL) it stated was associated with emergency protective measures conducted at its main hospital facility. The FAL included: (1) overtime to conduct emergency work, including emergency repairs to prevent damage to its facility; and (2) compensation that was designated as sleep time for staff who were unable to be relieved or return home due to road conditions, and stayed to respond to an increase in patients at the facility during the incident. The Applicant claimed that the sleep time costs arose from a predisaster policy that requires staff to remain on site during incidents. FEMA wrote Grants Manger Project 188981 to document work and costs claimed by the Applicant.

In a Determination Memorandum dated March 23, 2022, FEMA granted $75,876.46 in overtime FAL associated with conducting the emergency work (e.g., the emergency repairs to the facility), but denied the remaining $324,259.30 that were designated as sleep time costs, finding that the Applicant had not demonstrated they were necessary to address an immediate threat and were instead, increased operating costs for continued operations.

First Appeal

The Applicant filed a first appeal in a letter dated June 1, 2022, stating that the requested sleep time costs were eligible as standby time. Specifically, the Applicant stated that having staff on standby via sleep time lessened the immediate threat presented by the incident because it allowed the facility to remain operational. The Applicant asserted that the use of sleep time was: (1) supported by its predisaster pay policy; (2) necessary to ensure resources remained available for the performance of life-saving activities; (3) for a limited time-period and specifically documented; and (4) reasonable and necessary to protect life and public health. The Texas Division of Emergency Management (Recipient), in a letter dated July 3, 2022, transmitted the Applicant’s appeal to FEMA along with a letter in support of the Applicant’s position.

The FEMA Region 6 Regional Administrator denied the Applicant’s appeal in a letter dated October 11, 2022. FEMA determined that the costs associated with sleep time were not an eligible emergency protective measure as they did not eliminate or lessen immediate threats. Rather, as the hospital was not dealing with disaster related patients but instead dealing with standard hospital patient needs, FEMA determined the costs were an ineligible increased operating expense.

Second Appeal

The Applicant submitted a second appeal reiterating prior first appeal arguments concerning the necessity of employees who were paid sleep time. The Applicant states that the disaster “posed an immediate threat to the hospital system in that employees who left at the end of their shift would be unable to return or be replaced by other employees. Road conditions were such that transportation to and from [the facility] was near impossible.”[2] The Applicant states that lost access to critical emergency healthcare staff could have resulted in the healthcare facility being inoperable.

To support its claim, the Applicant submitted a series of graphs of hospital patient admittance activity during the incident period, to show the increase in patients coming to its facility. The Applicant, however, also acknowledged the data includes patients who may have otherwise entered the Applicant’s system for routine ailments.^[3] The Recipient transmitted the Applicant’s second appeal, in a letter dated December 22, 2022, supporting the Applicant’s position.

 

Discussion

FEMA may provide assistance for emergency protective measures that eliminate or lessen immediate threats to lives, public health, or safety.[4] FEMA may provide PA for labor costs related to intermittent standby time for staff conducting eligible emergency medical care required as a result of the declared incident.[5] Increased costs of operating a facility or providing a service are generally not eligible, even when directly related to the incident.[6] However, short-term increased costs that are directly related to accomplishing specific emergency health and safety tasks as part of emergency protective measures may be eligible if certain requirements are met.[7] To be eligible, costs must be directly tied to the performance of eligible work and adequately documented.[8] Patient care is an ineligible increased operating cost, even for a limited time, except as emergency medical care provided of survivors when the emergency medical delivery system within a declared area is destroyed, severely compromised or overwhelmed.[9]

Due to the concern of staff being unable to return to the healthcare facility or perform necessary shift changes as a result of disaster-related road conditions, the Applicant paid FAL costs for sleep time, which it states was the equivalent of standby time. However, the Applicant has not provided documentation demonstrating the staff who were paid those sleep time/standby costs provided eligible disaster-related emergency medical care or performed any other eligible emergency work. On second appeal, the Applicant provides a graph to support its position that there was an increase in patients coming to its facility during the incident period but does not provide supporting documentation that directly ties the specific staff who were paid sleep time to medical care provided to survivors, or that demonstrates the emergency medical delivery system within the declared area was destroyed, severely compromised or overwhelmed. Rather the Applicant notes that the staff were paid sleep time to ensure continued operations of its facility. Therefore, even if the disaster caused the need for sleep time/standby time, the Applicant has not demonstrated the requested FAL constitutes an eligible increased operating cost directly related to the provision of eligible medical care.

 

Conclusion

The Applicant has not demonstrated its requested FAL is directly tied to the performance of eligible work. Accordingly, this second appeal is denied.