Immediate Threat

Appeal Brief

Appeal Letter

Appeal Analysis

Background

The coronavirus (COVID-19) pandemic resulted in a major disaster declaration for the state of Tennessee on April 2, 2020, with an incident period of January 20, 2020, through May 11, 2023. Sumner County (Applicant) requested Public Assistance funding for force account labor, materials, and contract costs for work completed from March 2020 to July 2020. FEMA created Grants Manager Project 672782, in the amount of $272,615.04, for the claimed costs.[1] The Applicant performed various emergency protective measures including operating an Emergency Operations Center (EOC), emergency medical transportation, non-congregate sheltering, medical waste disposal, security, law enforcement, cleaning and disinfection. The Applicant purchased supplies for multiple departments, including its EOC. FEMA approved $259,064.64 for force account labor, equipment, materials, contracts and sheltering costs.

FEMA issued a Determination Memorandum (DM) on January 24, 2024, denying $12,947.40 in electronic items, meals and cleaning supplies found to be increased operating costs and not related to the performance of eligible emergency work required in response to COVID-19.[2]

First Appeal

The Applicant appealed on March 21, 2024, requesting $10,015.84 for the denied electronic items, meals, cleaning products and taxes. For the electronic items, the Applicant argued that the items were necessary for the safe operation of its EOC in a socially distanced environment and to communicate public health information. For the meals, the Applicant argued that: (1) meals provided in an EOC met the Applicant’s policy; (2) meals are eligible per FEMA policy: (3) food and water were not reasonably available due to stay at home orders and the closure of non-essential businesses; and (4) extended work hours prevented employees from providing their own meals.

For the cleaning items, the Applicant stated the denied items were used for cleaning and disinfection based on guidance from the Centers for Disease Control and Prevention (CDC), which advised that high touch surfaces should be disinfected daily. Finally, the Applicant states FEMA denied sales tax in the DM but did not reference any specific FEMA policy. In a letter dated April 2, 2024, the Tennessee Emergency Management Agency (Recipient) forwarded the Applicant’s appeal requesting FEMA’s consideration. 

The FEMA Region 4 Regional Administrator denied the Applicant’s appeal in a letter dated August 26, 2024, and found the Applicant did not demonstrate the claimed costs were used in the performance of eligible emergency protective measures. For the electronic items, FEMA found the items were not used for any eligible COVID-19 work and were used to continue services in a COVID-19 environment. FEMA found the meals purchased were from restaurants that were open for business, and therefore, food and water was reasonably available and were purchased for convenience.

Regarding the cleaning items, FEMA found the Applicant did not demonstrate the items purchased were tied to the performance of eligible work associated with the safe opening and operation of an eligible facility. Finally, for the sales tax, FEMA found the Applicant did not provide documentation that associated the taxes with eligible work.

Second Appeal

The Applicant appealed FEMA’s determination, in the amount of $10,015.84 and reiterated first appeal arguments.[3] The Applicant adds that the meals were consistent with prior EOC meal purchases, were bulk meal rather than individual meal purchases, and that staff worked 12-hour shifts for a 24-hour period. In a letter dated December 19, 2024, the Applicant forwarded the appeal to FEMA, with its support.

Discussion

Electronic Items

FEMA may provide assistance to eligible PA applicants for emergency protective measures that eliminate or lessen immediate threats to lives, public health, or safety including using EOCs to direct and coordinate resources and response activities and disseminating information to the public about health and safety measures and warnings of health and risks using various strategies.^[4] Eligible costs associated with operating the EOC include supply costs.[5]

Here, the Applicant requests $7,442.61 for the purchase of various electronic items, which the Applicant states were necessary to perform work such as the dissemination of public health information in its EOC. The Applicant has demonstrated that the electronic items purchased were associated with eligible EOC work, specifically to coordinate the Applicant’s emergency response and disseminate information, which relates to force account labor costs FEMA previously approved for this project. Therefore, the electronic items purchased are eligible in the amount of $7,442.61.

Meals

The provision of meals, including beverages and meal supplies, for employees and volunteers engaged in eligible emergency work, including those at EOCs, is eligible provided the individuals are not receiving per diem, and one of the following circumstances applies: (1) a qualifying labor policy or written agreement requires provision of meals; (2) conditions are sufficiently severe as to require employees to work abnormal, extended work hours without a reasonable amount of time to provide for their own meals; or (3) food or water is not reasonably available for employees to purchase.^[6]

The Applicant requests reimbursement for the cost to provide meals to staff in its EOC. The Applicant stated it provided documentation to demonstrate that the meals purchased were consistent with the Applicant’s practice and policy in previous events where it purchased bulk meals for staff at the EOC who were required to work abnormal, extended work hours, including 12-hour shifts for a 24-hour period. However, the Applicant does not reference or provide a specific policy to demonstrate that it was required to provide meals by a labor policy or written agreement. 

Additionally, the Applicant did not provide documentation to support that employees worked abnormal, extended work hours or that employees were not provided a reasonable amount of time to provide their own meals. The documentation shows that meals were purchased from local restaurants and grocery stores, so the Applicant has not demonstrated that food or water was not reasonably available for employees to purchase. [7] Therefore, the claimed cost for meals is not eligible.[8]

Cleaning and Disinfecting

In response to COVID-19, FEMA may provide assistance for cleaning and disinfection, done in accordance with CDC guidance or that of an appropriate public health official available at the time the work was completed, including the purchase and provision of necessary supplies and equipment in excess of the Applicant’s regularly budgeted costs, implemented to facilitate the safe opening and operation of all eligible facilities in response to COVID-19.^[9]

Here, the Applicant requests PA funding for supplies such as a mop, broom, toilet brush, lotion soap, body wash and facial tissue, asserting the costs associated with the items were used in accordance with CDC guidance for cleaning and disinfection of public facilities. However, the claimed supplies are typical of routine cleaning, and the Applicant has not demonstrated how the items were used for eligible emergency protective measures in response to an immediate threat from COVID-19 in accordance with CDC guidance or that of another appropriate public health official.[10] Additionally, the Applicant has not provided documentation (such as its annual expenditures for cleaning supplies) demonstrating that its claimed costs were in excess of its regularly budgeted cleaning costs and that it tracked the additional claimed costs.[11]

Conclusion

The Applicant demonstrated the electronic items were associated with eligible emergency work conducted in its EOC, in the amount of $7,442.61. However, the Applicant has not demonstrated that the meals, cleaning supplies, or taxes are eligible under FEMA policies. Therefore, the appeal is partially granted.