Immediate Threat

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4497
Applicant	Campbell County Fire District #1
Appeal Type	Second
PA ID#	037-UA09H-00
PW ID#	GMP 165108 / PW 9
Date Signed	2022-12-19T17:00:00

Summary Paragraph

The coronavirus (COVID-19) pandemic resulted in a major disaster declaration for the State of Kentucky.  The Campbell County Fire District #1 (Applicant) requested reimbursement under FEMA’s PA program for $150,899.64 in force account labor (FAL), force account equipment (FAE) (ambulances), materials, personal protective equipment (PPE), disinfecting supplies, and cardiac monitors.  FEMA issued a Determination Memorandum partially approving the costs for PPE and disinfecting supplies; and denying the costs for FAL, FAE, materials, and cardiac monitors.  The Applicant appealed stating the FAL was used to man and decontaminate its ambulances, and the materials were needed to protect its staff.  Regarding the FAE, the Applicant argued that emergency medical transport is eligible under FEMA’s policies.  Finally, the Applicant stated that the cardiac monitors allowed patient data to be transmitted wirelessly, which minimized COVID-19 transmission.  The FEMA Region IV Regional Administrator denied the appeal, finding that the Applicant had not provided sufficient documentation demonstrating that its employees performed disaster-specific work.  Thus, costs claimed for FAL and FAE were found ineligible.  Furthermore, the Applicant did not demonstrate that the materials and the cardiac monitors were used in response to an immediate threat.  The Applicant submits a second appeal requesting FEMA re-evaluate its claims under FEMA Policy FP 104-21-0003, Coronavirus (COVID-19) Pandemic: Safe Opening and Operation Work Eligibility for Public Assistance (Interim) (Version 2).

Authorities and Second Appeals

• Stafford Act § 403(a).
• 44 C.F.R. §§ 206.223(a)(1), 206.225(a).
• Fact Sheet, Eligible Emergency Protective Measures.
• FP 104-21-0003, at 4-5.
• FP 104-21-0004, at 4.
• PAPPG, at 21, 57.
• City of Sweetwater, FEMA-1345-DR-FL, at 3; Dep’t of Transp., FEMA-4068-DR-FL, at 5.

Headnotes

• To be eligible for reimbursement, costs must be directly tied to the performance of eligible work and be adequately documented.
  • The Applicant’s FAL, FAE, and materials costs are ineligible for PA funding because they could not be tied to the performance of eligible work.
• For emergency protective measures to be eligible, the applicant is responsible for showing the work is required due to an immediate threat.  
  • The Applicant did not demonstrate that the cardiac monitors were purchased to respond to an immediate threat due to COVID-19.

Conclusion

FEMA finds that the Applicant’s FAL, FAE, materials and cardiac monitors are ineligible for PA funding because the Applicant did not demonstrate that they were tied to eligible emergency protective measures to respond to an immediate threat from COVID-19.  Therefore, this appeal is denied.

Appeal Letter

Appeal Analysis

Background

The coronavirus (COVID-19) pandemic resulted in a major disaster declaration for the State of Kentucky on March 28, 2020, with an incident period beginning January 20, 2020, and continuing.  The Campbell County Fire District #1 (Applicant), a local government entity, requested reimbursement under FEMA’s Public Assistance (PA) program for $150,899.64 associated with force account labor (FAL); force account equipment (FAE) (ambulances); contract costs (cardiac monitors); supplies, such as personal protective equipment (PPE) and disinfecting supplies; and materials, including canisters, filters, batteries, needles, albuterol (breathing medication), bags, and thermometers.  The Applicant stated that the FAL costs were associated withs employees performing COVID-related activities, including manning ambulances, disinfecting ambulances after each run, disinfecting stations, ordering and inventorying supplies, and researching PPE.  Regarding the FAE, the Applicant stated that it used the ambulances to provide COVID-related services.[1]  Also, the Applicant stated the supplies, materials, and cardiac monitors were purchased to minimize COVID-19 transmission.[2] 

FEMA issued a Determination Memorandum denying the costs for FAL, FAE, materials, and contract costs for the cardiac monitors.[3]  FEMA stated that the claimed FAL and FAE costs included a combination of potentially eligible and ineligible activities and that FEMA could not corroborate what portion of the Applicant’s claim was eligible and what portion was related to routine calls.  Additionally, FEMA asserted that the materials and cardiac monitors did not address an immediate threat to life or public health in response to COVID-19.  Finally, FEMA stated that the claimed materials, cardiac monitors, FAL, and FAE represented increased operating costs.

First Appeal

The Applicant submitted a first appeal letter dated September 1, 2021, requesting $145,647.96.  The Applicant stated that due to the pandemic, its employees performed more frequent ambulance decontaminations, and researched and ordered new and alternative PPE due to the unavailability of its normally used supplies.[4]  Regarding the materials, the Applicant asserted that they were needed to protect its staff from having contact with COVID-19 patients.  Additionally, the Applicant argued that emergency medical transport is an eligible emergency protective measure specifically listed in FEMA policies.[5]  Regarding the cardiac monitors, the Applicant stated that they facilitated the transport of individuals with COVID-19 and they allowed better monitoring of airway gasses, oxygen saturation, and blood carbon monoxide levels.  Also, it stated that this equipment transmitted patient data wirelessly which minimized COVID-19 exposure of its personnel.  On September 24, 2021, the Kentucky Emergency Management (Recipient) transmitted the first appeal, recommending approval.

On July 14, 2022, the FEMA Region IV Regional Administrator denied the first appeal, finding that the Applicant had not provided sufficient documentation demonstrating that its employees performed disaster-specific work.  Specifically, FEMA stated that the Applicant’s logs described the nature of its medical calls using language indicating that this work aligned with the Applicant’s normal calls and was not specific to the COVID-19 pandemic.  Thus, costs claimed for FAL and FAE were found ineligible.  Furthermore, FEMA explained that the costs for COVID-related PPE and disinfectants were considered eligible for PA funding in its initial determination and that the remaining materials (generalized medical supplies, laptop batteries, IV catheters, and retractable needles) are ineligible for PA because the Applicant did not demonstrate that these items were specifically used to address an immediate threat as a result of COVID-19.  Finally, FEMA stated that the cardiac monitors are standard medical equipment used to care for patients with various types of illness, and the Applicant did not show that they were specifically purchased to provide medical treatment to infected or presumed-infected COVID-19 patients.

Second Appeal

On September 9, 2022, the Applicant submitted its second appeal requesting $145,647.96 for FAL, the remaining materials (canisters, filters, batteries, needles, albuterol (breathing medication), bags, and thermometers), FAE (ambulances), and cardiac monitors.  In addition to its previous arguments, the Applicant requests FEMA evaluate the eligibility of the claimed costs under FEMA Policy FP 104-21-0003, Coronavirus (COVID-19) Pandemic: Safe Opening and Operation Work Eligibility for Public Assistance (Interim) (Version 2) (O&O Policy).  The Recipient transmitted the second appeal, recommending approval.

 

Discussion

FEMA is authorized to provide emergency protective measures to save lives and protect public health and safety.[6]  The work must be required due to an immediate threat resulting from the declared incident, and the emergency protective measures must eliminate or lessen immediate threats to lives, public health, or safety.[7]  To be eligible for reimbursement, costs must be directly tied to the performance of eligible work and be adequately documented.[8]  For COVID-19 declarations, FEMA may provide assistance for eligible emergency protective measures implemented to reduce immediate threats to public health and safety, including certain measures to safely open and operate a facility in response to COVID-19.[9]  FEMA’s Coronavirus (COVID-19) Pandemic: Medical Care Eligible for Public Assistance policy provides that medical transport may be eligible in relation to emergency and inpatient clinical care for COVID-19 patients.[10]  The burden to fully substantiate an appeal with documented justification falls exclusively on the applicant and hinges on the applicant’s ability not only to produce its own records, but to clearly explain how those records support the appeal.[11] 

Here, the Applicant claims that the FAL, FAE and materials costs were related to emergency medical care and transport of confirmed and suspected cases of COVID-19.  To support its claim for FAL and FAE, the Applicant submitted January 1, 2020 to September 13, 2020 dispatch logs.  The logs describe the nature of the calls using terms such as “Overdose,” “Traffic Accident,” “Fire Alarm,” “Hemorrhage,” “Falls,” “Chest Pain,” “Psych,” “Breathing Problems,” “Choking,” “Abdominal Pain,” “Seizures,” “Diabetic Problems,” and “Sick Person.”  Even though some of the descriptions may generally be associated with symptoms experienced by a COVID-19 patient, no documentation was submitted to demonstrate the calls were specifically related to the emergency medical transport of COVID-19 patients.  Additionally, the Applicant claims that some its FAL costs were related to disinfection work and researching PPE due to limited availability during the pandemic, and it submitted a time card report and payroll check register as supporting documentation.  However, neither of these documents described the work performed during the claimed overtime hours to substantiate the Applicant’s assertion that the claimed FAL included emergency protective measures.  Regarding the materials, the Applicant stated that they were needed to protect its staff from COVID-19 infection, but did not provide documentation to support the eligibility of claimed material costs (e.g., canisters, filters, batteries, etc.). Therefore, the FAL, FAE and associated material costs are ineligible, as they were not tied to the performance of an eligible emergency protective measure in response to COVID-19 under any of FEMA’s COVID-19 policies, including the O&O Policy.

Also, the Applicant requests reimbursement for contract costs related to cardiac monitors.  The documentation submitted shows that the procurement process was conducted before the beginning of the incident period for the COVID-19 disaster.[12]  Because the documentation demonstrates that the procurement process occurred prior to the start of the disaster’s incident period, the Applicant has not demonstrated that the cardiac monitors were procured as an emergency protective measure to respond to an immediate threat caused by COVID-19.  Therefore, the cardiac monitor costs are ineligible.

 

Conclusion

FEMA finds that the Applicant’s FAL, FAE, materials and cardiac monitors are ineligible for PA funding because the Applicant did not demonstrate that they were tied to eligible emergency protective measures to respond to an immediate threat from COVID-19.  Therefore, this appeal is denied.

 

[1] The Applicant submitted January 1, 2020 to September 13, 2020 dispatch logs which described the nature of the calls using terms such as “Overdose,” “Traffic Accident,” “Fire Alarm,” “Hemorrhage,” “Falls,” “Chest Pain,” “Psych,” “Breathing Problems,” “Choking,” “Abdominal Pain,” “Seizures,” “Diabetic Problems,” and “Sick Person.”  See, PDF labeled “1b_ Campbell County Ambulance Run Log.pdf” in Grants Manger/Grants Portal.    

[2] The Bid Advertisement for the cardiac monitors stated that the bids must be submitted to the Applicant by 5:00 pm on December 17, 2019 (prior the disaster’s declaration date).  The Stryker company submitted a bid for cardiac monitors on an earlier date, November 13, 2019. See pages 27 and 87 of pdf document label 6a_Campbell Co Fire District-DR4497KY-Contracts.pdf in Grants Manager.

[3] The Determination Memorandum considered eligible the supplies.  See, record label “5a_Campbell County DR4497KY Material Final 12.17 (1) marked up” in Grants Manager.

[4] The Applicant submitted the Time Card Report for Campbell County Fire District #1 and the Payroll Check Register by Department as supporting documentation.

[5] Specifically, the Applicant claimed that the FAE (ambulances) is eligible under the FEMA Fact Sheet, Coronavirus (COVID-19) Pandemic: Eligible Emergency Protective Measures, at 1-2 (Mar. 19, 2020) [hereinafter Fact Sheet, Eligible Emergency Protective Measures] and FEMA Policy 104-010-04, Coronavirus (COVID-19) Pandemic: Medical Care Costs Eligible for Public Assistance, (May 9, 2020), superseded by FEMA Policy 104-21-0004, Coronavirus (COVID-19) Pandemic: Medical Care Costs Eligible for Public Assistance (Interim) (Version 2) (Mar. 15, 2021) [hereinafter Medical Care Costs Eligible for Public Assistance Policy].

[6] Robert T. Stafford Disaster Relief and Emergency Assistance (Stafford) Act § 403(a), Title 42, United States Code (42 U.S.C.) §§ 5170b(a) (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 57 (Apr. 1, 2018) [hereinafter PAPPG].

[8] PAPPG, at 21.

[9] Fact Sheet, Eligible Emergency Protective Measures, at 1-2; FEMA Policy 104-21-0003, Coronavirus (COVID-19) Pandemic: Safe Opening and Operation Work Eligible for Public Assistance (Interim) (Version 2), at 4-5 (Sept. 8, 2021) [hereinafter O&O Policy].  As provided in the O&O Policy, eligible emergency protective measures in response to COVID-19 include: (1) purchase and distribution of face masks, including cloth face coverings, and personal protective equipment (PPE); (2) cleaning and disinfection, including the purchase and provision of necessary supplies and equipment in excess of the Applicant’s regularly budgeted costs; (3) COVID-19 diagnostic testing; (4) screening and temperature scanning, including, but not limited to, the purchase and distribution of hand-held temperature measuring devices or temperature screening equipment; and (5) acquisition and installation of temporary physical barriers, such as plexiglass barriers and screens/dividers, and signage to support social distancing, such as floor decals.

[10] Medical Care Eligible for Public Assistance Policy, at 4.

[11] See FEMA Second Appeal Analysis, City of Sweetwater, FEMA-1345-DR-FL, at 3 (Aug. 15, 2017); FEMA Second Appeal Analysis, Dep’t of Transp., FEMA-4068-DR-FL, at 5 (Aug. 5, 2016).

[12] See pdf document label 6a_Campbell Co Fire District-DR4497KY-Contracts.pdf in Grants Manager/Grants Portal.