Immediate Threat

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4518
Applicant	Benton (County)
Appeal Type	Second
PA ID#	007-99007-00
PW ID#	GMP 159719/PW 101
Date Signed	2023-05-15T16:00:00

Summary Paragraph

The coronavirus (COVID-19) pandemic resulted in a major disaster declaration for the state of Arkansas. Benton County (Applicant) requested Public Assistance (PA) funding for purchases made between March 16, 2020, and May 30, 2021. FEMA issued a Determination Memorandum denying PA funding for technology purchases, air purifiers, and plasma air purifiers, finding the claimed work ineligible as increased operating costs rather than eligible emergency protective measures. The Applicant appealed, asserting it purchased plasma air purifiers for the protection of Applicant-employees, the general public, and inmates at the Applicant’s courtroom facilities and its Jail. FEMA denied the appeal, finding the purchase of the laptops and teleconferencing materials were increased costs of providing services the Applicant normally offered and the purchase of plasma air purifiers was not among the list of eligible emergency protective measures listed in FEMA Policy (FP) 104-21-0003, Coronavirus (COVID-19) Pandemic: Safe Opening and Operation Work Eligible for Public Assistance (Interim) (Version 2). On second appeal, the Applicant requests reimbursement of $46,758.79 in plasma air purifiers costs.

Authorities and Second Appeals

• Stafford Act §§ 403 and 502.
• 44 C.F.R. §§ 206.223(a)(1), 206.225(a)(3)(i).
• PAPPG, at 17.
• O&O Policy, at 4-5.
• Air Disinfection Memo, at 1-2.
• Amber Charter School, at 3.

Headnotes

• Air disinfection may be eligible in limited circumstances in accordance with FEMA’s O&O Policy under the category of cleaning and disinfection. FEMA may only fund air disinfection (including HEPA filters) in cases where applicants implemented a layered approach, and where the measure is consistent with guidance applicable at the time from public health officials or the CDC as it relates to disinfection.
  • The Applicant utilized a layered approach but has not established that the purchase of plasma air purifiers is consistent with guidance applicable at the time from public health officials or the CDC as it relates to disinfection.

Conclusion

The Applicant has not established that the purchase of the plasma air purifiers is an eligible emergency protective measure in response to COVID-19. Therefore, the appeal is denied.

Appeal Letter

Appeal Analysis

Background

On April 3, 2020, the President issued a major disaster declaration for the state of Arkansas with an incident period beginning January 20, 2020, to May 11, 2023, for the coronavirus (COVID-19) pandemic. Benton County (Applicant) requested reimbursement under the FEMA Public Assistance (PA) program for the purchase of supplies to address COVID-19, which included the purchase of plasma air purifiers between March 16, 2020 and May 30, 2021. FEMA prepared Project Worksheet 101 to capture claimed costs associated with the purchase of COVID-19 related equipment and supplies. FEMA issued a Determination Memorandum, dated December 1, 2021, denying PA funding for the purchase of plasma air purifiers.[1] FEMA found the Applicant did not demonstrate the costs were specifically related to eligible emergency protective measures and instead represented ineligible increased operating costs.

First Appeal

On January 28, 2022, the Applicant appealed FEMA’s denial of costs associated with the plasma air purifiers. The Applicant stated these costs were eligible emergency protective measures taken to protect public health during the ongoing declared emergency, not increased operating expenses. The Applicant asserted it purchased plasma air purifiers for the protection of  its employees, the general public, and those at the Applicant’s courtroom facilities and in its jail. On February 15, 2022, the Arkansas Division of Emergency Management (Recipient) forwarded the Applicant’s appeal, summarizing the Applicant’s position.

On May 16, 2022, FEMA sent the Recipient and the Applicant a Request for Information (RFI) asking for documentation and/or narrative demonstrating its air disinfection purchases complied with guidance from public health officials, as well as Centers for Disease Control and Prevention (CDC) guidance for air filtration. By email dated May 23, 2022, the Applicant responded to the RFI and provided spreadsheets with the locations of where its air disinfection devices were used, including leased locations, and the square footage of each location.

On October 17, 2022, based on FEMA’s Coronavirus (COVID-19) Pandemic: Safe Opening and Operation Work Eligible for Public Assistance Policy (O&O Policy),[2] the FEMA Region 6 Regional Administrator denied the Applicant’s first appeal. FEMA found the Applicant’s air disinfection purchases did not comply with CDC guidance on air filtration, therefore based on the O&O Policy, the purchase of plasma air purifiers was not among the list of eligible emergency protective measures.

Second Appeal

On December 12, 2022, the Applicant appealed FEMA’s denial of $46,758.79 in costs for the purchase of plasma air purifiers. The Applicant reiterates its first appeal arguments and points to FEMA’s memorandum on air disinfection eligibility in accordance with the O&O Policy[3] to assert that it used a three-layered approach during the pandemic, which included providing: disinfectants, sanitizers, and hand sanitizer dispensers to facilities for disinfection; PPE to first responders and staff at the facilities; and temporary barriers for social distancing. The Applicant also argues the plasma air purifiers were installed based on the CDC’s recommendation, which included use in crowded spaces when the health status of the occupants is unknown and in areas where it is difficult to stay at least 6 feet apart such as the Applicant’s jail and its courtrooms. The Applicant contends it purchased the plasma air sanitizers for the protection of its employees, the public, and inmates at the jail. The Recipient forwarded the second appeal to FEMA in a letter dated December 14, 2022, supporting the Applicant’s position.

 

Discussion

FEMA is authorized to provide assistance for emergency protective measures to save lives and protect public health and safety.[4] 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.[5] Eligible work includes cleaning and disinfection done in accordance with applicable FEMA policy, and guidance of the CDC or appropriate public health official available at the time the work was completed.^[6] Air disinfection may be eligible in limited circumstances in accordance with FEMA’s O&O Policy.[7] FEMA may only fund air disinfection in cases where applicants implemented a layered approach.[8] Such approaches may include: (1) use of masks in a consistent and correct manner; (2) physical distancing of at least 6 feet; (3) frequently cleaning and disinfecting surfaces; or (4) hand hygiene with regular hand washing with soap and water or using alcohol-based hand sanitizer.[9] The measure must also be consistent with guidance applicable at the time from appropriate public health officials or the CDC as it relates to disinfection.[10]

The Applicant is requesting reimbursement for costs associated with its purchase of plasma air purifiers.[11] The Applicant has demonstrated that it utilized a layered approach, providing disinfectants, sanitizers, and hand sanitizer dispensers to its facilities for disinfection; providing PPE to first responders and staff at its facilities; and providing temporary barriers for social distancing and to keep spacing up to six feet apart. However, the Applicant has not demonstrated that the use of the plasma air purifiers is consistent with guidance applicable at the time of the work from public health officials or the CDC as it relates to disinfection. The CDC guidance does not support or recommend the use of plasma air purification technology. The CDC refers to ionization, or plasma, technology as an “emerging technology” and urge caution regarding its use.[12] Accordingly, FEMA finds that the Applicant’s purchase of plasma air purifiers is not an eligible emergency protective measure completed in accordance with guidance applicable at the time of the work from the CDC or an appropriate public health official.[13]

 

Conclusion

The Applicant has not established that the purchase of the plasma air purifiers is an eligible emergency protective measure in response to COVID-19. Therefore, the appeal is denied.