Immediate Threat

Appeal Brief

Summary Paragraph

The COVID-19 pandemic resulted in a major disaster declaration for the State of Florida on March 25, 2020, with an incident period of January 20, 2020, to May 11, 2023. The Town of Lantana (Applicant) requested FEMA Public Assistance (PA) funding for materials costs including purchase and installation of Ultraviolet Germicidal Irradiation (UVGI) bulbs in various Heating Ventilation Air Conditioning (HVAC) units throughout its facilities. FEMA issued a Determination Memorandum, denying $13,985.00 for the UVGI as it was not a measure approved for PA reimbursement under FEMA COVID-19 specific policies. The Applicant filed a first appeal for the $13,985.00 in costs denied for the UVGI installation. The Applicant stated the UVGI equipment installed in high-risk facilities was an eligible emergency protective measure. The Florida Division of Emergency Management (Recipient) forwarded the appeal in support of the Applicant. FEMA issued a Request for Information for documentation substantiating that: 1) the facilities were designated high-risk indoor settings; 2) how installation of UVGI was used to lower risks; 3) maintenance records showing the HVAC were inadequate for ventilation; and 4) how the facilities suffered from lack of natural ventilation. The Applicant responded that the HVAC units were compliant with local and state building codes but were limited based on their design to avoid natural ventilation. FEMA Region 4 Regional Administrator denied the first appeal, finding that the Applicant had not demonstrated that the purchase and installation of UVGI in multiple HVAC systems was necessary due to insufficient ventilation. The Applicant filed a second appeal reiterating first appeal statements. The Recipient forwarded the second appeal in support of the Applicant.

Authorities and Second Appeals

• Stafford Act §§403, 502.
• 44 C.F.R. §§206.223 (a)(1), 206.225(a)(3)(i).
• PAPPG, at 19, 57. 
• O&O Policy at 4-5, Air Disinfection Memorandum, at 1-2.

Headnotes

• FEMA may only fund air disinfection, in cases where Applicants implemented a layered approach.
  • The Applicant substantiated through documentation that it implemented a layered approach with sanitation, disinfectants, and PPE for staff.
• FEMA may approve UVGI specifically as an air disinfection method if it was installed based on CDC recommendations.
  • The Applicant purchased and installed UVGI bulbs in HVAC systems due to insufficient natural ventilation in its facilities which is based on CDC recommendations.

Conclusion

FEMA finds the Applicant has substantiated that the purchase and installation of UVGI bulbs is an eligible emergency protective measure in response to COVID-19. Therefore, the appeal is granted in the amount of $13,985.00.

Appeal Letter

Appeal Analysis

Background

The coronavirus (COVID-19) pandemic resulted in a major disaster declaration for the State of Florida on March 25, 2020, with an incident period of January 20, 2020, to May 11, 2023. The Town of Lantana (Applicant) requested FEMA Public Assistance (PA) funding for costs related to sanitation, disinfectant services, personal protective equipment (PPE) for staff at its Town Hall, Police Station, Vehicle Maintenance and Public Works buildings and Public Library (facilities), and for the purchase and installation of Ultraviolet Germicidal Irradiation (UVGI) bulbs in various existing Heating, Ventilation, and Air Conditioning (HVAC) units throughout its facilities.[1] FEMA captured the Applicant’s costs in Grants Manager Project 185187 for a total of $20,124.01. 

FEMA issued a Determination Memorandum on February 16, 2022, denying $13,985.00 for the purchase and installation of UVGI bulbs.[2] FEMA found that UVGI was not a measure approved for PA reimbursement under FEMA’s Coronavirus (COVID-19) Pandemic: Safe Opening and Operation Work Eligible for Public Assistance Policy (O&O Policy).[3]

First Appeal 

The Applicant filed a first appeal to the Florida Division of Emergency Management (Recipient) dated March 28, 2022, for the $13,985.00 in UVGI costs. The Applicant stated the disinfection of eligible facilities was eligible for reimbursement, and the UVGI equipment installed in high-risk facilities, where an anticipated high volume of persons would be entering these facilities to perform essential services, duties etc., was an eligible emergency protective measure. The Recipient forwarded the Applicant’s first appeal to FEMA in support of the Applicant on May 20, 2022.

FEMA issued a Request for Information to the Applicant in a letter dated October 6, 2022, seeking documentation substantiating: 1) that the facilities were designated high-risk indoor settings; 2) how installation of UVGI was used to lower risks; 3) maintenance records showing the HVAC systems were inadequate for ventilation; and 4) how the facilities suffered from lack of natural ventilation.

The Applicant responded on October 25, 2022, explaining that the facilities had equipped HVAC units which were compliant with local and state building codes, but the design did not allow for natural ventilation.[4] Additionally, the Applicant stated that any attempt to use natural ventilation was infeasible due to the humidity and temperatures where the facilities are located in south Florida. 

The FEMA Region 4 Regional Administrator, in a letter dated November 30, 2022, denied the Applicant’s first appeal. FEMA found that the Applicant had not demonstrated that the purchase and installation of UVGI in multiple HVAC systems was necessary due to insufficient ventilation.

Second Appeal

The Applicant files a second appeal dated January 23, 2023, reiterating that the facilities’ design limitations do not allow for natural ventilation. The Applicant notes the Centers for Disease Control and Prevention (CDC) does not recommend natural ventilation in extremely humid environments such as south Florida. The Applicant states it positioned the UVGI equipment in a strategic manner to locations and facilities with known or anticipated high volumes of persons with indeterminate infectiousness. The Applicant provided photographs of the facilities where UVGI was installed noting the location of non-functional windows. The Applicant also cites to a recent FEMA second appeal decision which granted funding for UVGI.[5] The Recipient forwarded the Applicant’s second appeal on March 23, 2023, in support of its position.

Discussion

FEMA is authorized to provide emergency protective measures to save lives and protect public health and safety.[6] 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.[7] 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.[8] Air disinfection may be eligible in limited circumstances in accordance with FEMA’s O&O Policy.[9] FEMA may only fund air disinfection in cases where applicants implemented a layered approach.[10] Such approaches may include the following types of preventive measures: (1) use of masks in a consistent and correct manner; (2) physical distancing of at least 6 feet; (3) frequently cleaning and disinfecting surfaces; (4) hand hygiene with regular hand washing with soap and water or using alcohol-based hand sanitizer; or (5) vaccination.[11] 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.[12]  

FEMA may approve UVGI specifically as an air disinfection method if it was installed based on CDC recommendations.^[13] These CDC recommendations are generally limited to installation in certain areas that include: (1) where indoor spaces have insufficient or no mechanical HVAC systems or where adequate natural ventilation cannot be maintained year-round; and (2) crowded spaces, particularly when the health status of occupants is unknown (for example, courtrooms, lobbies, homeless shelter sleeping areas).^[14]

Based on receipts contained in the record, the Applicant has demonstrated that it utilized a layered approach, providing disinfectants, sanitizers, and providing PPE to staff at its facilities.[15] Additionally, the Applicant has substantiated, through photographs and written explanations, that the facilities in which UVGI bulbs were installed cannot maintain natural ventilation year-round.[16] Furthermore, the facilities in which the Applicant installed UVGI bulbs are in locations with an increased likelihood of crowded spaces, where the health status of occupants is unknown, e.g., the police station and town council buildings.[17] Accordingly, FEMA finds that the Applicant’s purchase and installation of UVGI bulbs in its HVAC systems is an eligible emergency protective measure in accordance with FEMA’s Air Disinfection Policy. 

Conclusion

The Applicant has substantiated that the purchase and installation of UVGI bulbs is an eligible emergency protective measure in response to COVID-19. Therefore, the appeal is granted in the amount of $13,985.00.