Immediate Threat

Appeal Brief

Appeal Letter

Appeal Analysis

Background

The COVID-19 pandemic resulted in a major disaster declaration for the state of Texas on March 25, 2020, with an incident period of January 20, 2020, to May 11, 2023. On February 3, 2020, the Bexar County Judge authorized the use of the Joe and Harry Freeman Coliseum Facilities (Facilities) operated by Bexar County Community Arenas (Applicant) for work associated with the COVID-19 response.[1] From March 16, 2020 to March 28, 2021, the City of San Antonio, Bexar County, Metropolitan Health District, and the Texas Department of Health and Human Services used the Facilities as a location to conduct COVID-19 testing and as an Alternate Care Site.[2] The Applicant requested Public Assistance (PA) funding for costs related to meals, janitorial supplies,[3] temporary security, and cleaning, that the Applicant claimed it was due based on allowing other government entities to use the Facilities. FEMA created Grants Manager Project (GMP) 435418 to document the costs.

On November 15, 2021, FEMA sent a Request for Information (RFI) requesting documentation to demonstrate the Applicant’s legal responsibility to provide the requested materials and services. The Applicant responded to the RFI explaining that it did not have contractual agreements for providing the materials and services. Additionally, the Applicant explained that it is the Coliseum Advisory Board doing business as Bexar County Community Arenas Board, a five-member board legislatively established in the 1940s to separate the operations of the Facilities from Bexar County. The Applicant also stated that historically it did not sign contracts for the use of the Facilities when used as part of an emergency response.

FEMA issued a Determination Memorandum on March 7, 2022, denying the total cost of the project. FEMA found that the Applicant did not provide sufficient documentation to determine the costs claimed were associated with the performance of eligible emergency protective measures. FEMA added that the Applicant did not provide any documentation defining the duties or responsibilities of the Applicant, or the entities using the services and noted that the Applicant should have billed the entities for the services, and those entities should then submit their COVID-19 related costs to FEMA for funding.

First Appeal

In a letter dated May 5, 2022, the Applicant submitted an appeal, stating that the State of Texas, the County of Bexar, and the City of San Antonio combined resources and contacted the Applicant to use the Facilities for the COVID-19 emergency response, and that the costs were eligible for PA. Additionally, the Applicant explained that after FEMA stated it was ineligible to submit its projects in Grants Portal, it attempted to bill the City of San Antonio, Bexar County, Metropolitan Health District, and the Texas Department of Health and Human Services for the costs, but those attempts were unsuccessful. Finally, the Applicant argued that the lack of contracts should not justify denying funding, considering the urgency of the response and the number of operators using the Facilities. The Texas Division of Emergency Management (Recipient) transmitted the appeal to FEMA in a May 23, 2022 dated letter, expressing its support.

In a letter dated September 26, 2022, the FEMA Region 6 Regional Administrator denied the first appeal. FEMA found that the Applicant was not legally responsible for and did not perform eligible emergency protective measures.[4]

Second Appeal

The Applicant submits a second appeal reiterating most of its first appeals arguments in a letter dated November 27, 2022. Additionally, the Applicant states that it executed all the activities through the authority and at the direction of the Bexar County Judge.[5] Also, the Applicant submits an email from FEMA directing it to submit its project as an eligible applicant. Finally, the Applicant states that smaller government entities like itself are deemed to be eligible applicants. In a letter dated January 17, 2023, the Recipient transmitted the appeal to FEMA, expressing its support.

Discussion

FEMA is authorized to provide assistance for emergency protective measures to save lives and protect public health and safety performed as a result of the incident.[6] To be eligible for PA, work must be the legal responsibility of an eligible applicant.[7] Eligible emergency work may include the provision of emergency medical care, which includes COVID-19 diagnostic testing, PPE storage, and COVID-19 related training when required as a direct result of the COVID-19 pandemic. [8] FEMA may approve work and costs associated with temporary medical facilities, which may include Alternate Care Sites or Community Based Testing Sites, if eligible work is performed and costs related to these facilities are incurred by eligible PA applicants.[9] Eligible wraparound costs associated with the performance of eligible work include food preparation and delivery, contracted security guards, and professional cleaning.[10]

Here, the Applicant requests FEMA provide funding for costs associated with materials and services that the Applicant has been unable to recover from the entities who used the Facilities to conduct COVID-19 emergency response activities. The Applicant provided a letter from the County Judge authorizing use of the Facilities to conduct activities in response to the COVID-19 emergency. However, the letter did not authorize nor request that the Applicant perform emergency work, nor has the Applicant claimed it performed any of the work. Rather, the Applicant provided documentation showing COVID-19-related work was performed by other government entities in the Facilities. The Applicant was not legally responsible for performing, and did not perform, eligible emergency protective measures. As such, the Applicant did not incur eligible costs related to the performance of eligible work for which it was legally responsible. Therefore, the Applicant has not demonstrated the requested costs are eligible for PA under FEMA’s applicable COVID-19 policies.

Conclusion

FEMA finds that the Applicant did not demonstrate it has the legal responsibility to perform, nor did it perform, eligible emergency work. As such, the requested costs are not eligible for PA. Therefore, this second appeal is denied.