Immediate Threat

Appeal Brief

Summary Paragraph

Hurricane Ida resulted in a federal disaster declaration on August 29, 2021, for the state of Louisiana. The Applicant, an entity who operates mental health and substance abuse clinics, requested $70,751.38 for force account labor (FAL) overtime (OT) costs incurred while operating a virtual Emergency Operations Center (EOC) to triage and respond to calls from patients and citizens impacted by the disaster and the disaster-related closure of its mental health clinics. FEMA issued a Determination Memorandum on November 14, 2022, denying $70,751.38 in FAL OT costs. FEMA stated that the costs were considered ineligible increased operating costs related to the Applicant operating a facility or providing a service during the disaster. On January 13, 2023, the Applicant submitted its first appeal, seeking only $48,608.38 and stating it acted quickly to minimize threats to life, public health, or safety of individuals with untreated mental health or substance abuse disorder crisis and to prevent any additional loss of life or serious injury to disaster impacted citizens. On June 28, 2023, the FEMA Region 6 Regional Administrator denied the appeal. FEMA determined the Applicant’s claimed FAL OT costs were associated with general patient care and routine tasks and were therefore ineligible increased operating costs. On August 28, 2023, the Applicant submitted a second appeal, seeking the denied costs and reiterating its first appeal arguments.

Authorities

• Stafford Act §§ 403(a), 416.
• 44 C.F.R. §§ 206.223(a)(1), 206.225(a)(1), (a)(3).
• PAPPG, at 51, 96, 114, 115, 117.
• Mt. Sinai Medical Center, FEMA-4337-DR-FL, at 3.

Headnotes

• Response activities conducted at EOCs may be eligible provided they are associated with eligible work. Increased operating costs that pertain to patient care and administrative activities are ineligible for Public Assistance.
  • The FAL OT costs represent increased operating costs related to patient care and administrative activities, rather than eligible emergency protective measures implemented to address an immediate threat resulting from the declared incident. Therefore, the Applicant has not demonstrated the FAL OT costs were associated with response activities associated with eligible work.

Conclusion

The Applicant has not demonstrated its FAL OT costs are associated with eligible emergency protective measures due to an immediate threat resulting from the declared incident rather than ineligible increased operating costs. Therefore, this appeal is denied.

Appeal Letter

Appeal Analysis

Background

From August 26 through September 3, 2021, Hurricane Ida impacted the state of Louisiana[1] and the Florida Parishes Human Services DHH (Applicant),[2] which operates mental health/substance abuse clinics.[3] The Applicant requested $70,751.38 in Public Assistance (PA) funding for claimed force account labor (FAL) overtime (OT) emergency work costs incurred for staff who worked additional hours at what the Applicant described as a virtual Emergency Operations Center (EOC) between August 29 and September 12, 2021. The Applicant stated it was short-staffed and noted the virtual EOC operated seven days a week. The Applicant indicated the virtual EOC work consisted of triaging and responding to telephone calls (which included directing the callers to appropriate personnel), from patients and citizens impacted by the disaster and/or disaster-related closure of the Applicant’s clinics per executive orders and guidance. In support of its request for FAL OT reimbursement, the Applicant submitted its predisaster pay policy, FAL summary sheets, and a narrative. The FAL summary sheets noted descriptions of work that stated either “Medical (Mental Health and Substance Use Disorder) Care” or “Behavioral health, triage, crisis management, and medication management.”

On October 26, 2022, FEMA issued a Determination Memorandum, denying $70,751.38 in FAL OT costs. FEMA stated that, while the work performed by the employees may have been good precautionary measures, the costs were considered ineligible increased operating costs related to the Applicant operating a facility or providing a service during the disaster.

First Appeal 

The Applicant submitted its first appeal on January 13, 2023, seeking $48,608.38.[4] The Applicant stated that it was necessary to act quickly to minimize threats to life, public health or safety of the individual experiencing the mental health crisis or those individuals around them as well as to prevent any additional loss of life or serious injury in the impacted parishes from untreated substance use and mental health crisis. The Applicant also stated that, throughout its clinic closures, its staff worked remotely to help with placing and routing calls, to reach persons identified as those most in need of care and who may have been outside its initial triage and disaster planning response, and to facilitate access to medication for outpatients in need. To support its appeal, the Applicant attached a Louisiana Department of Health Release, publicizing crisis mental health resources, and duplicate copies of FAL summaries and government closure date summaries. On March 1, 2023, the Governor’s Office of Homeland Security and Emergency Preparedness (Recipient) transmitted the appeal to FEMA with its support. The Recipient also attached a summary reiterating the Applicant’s pre-hurricane services, post-hurricane virtual EOC services and staff, and various state and federal regulations and policies addressing FAL OT. On June 28, 2023, the FEMA Region 6 Regional Administrator denied the appeal.[5]FEMA determined the Applicant’s claimed FAL OT costs were associated with general patient care and routine tasks, and therefore, were ineligible increased operating costs.

Second Appeal

The Applicant submitted a second appeal on August 28, 2023, seeking the previously denied $48,608.38 and reiterating its first appeal arguments. The Applicant states that its staff was not performing general care and routine tasks but instead, provided emergency response for persons who otherwise would have gone to an emergency room or behavioral health inpatient unit and performed other non-civil service job duties required to meet the needs of persons it served. On October 27, 2023, the Recipient transmitted the appeal to FEMA with a summary, reincorporating its first appeal summary arguments and recommendations.

Discussion

FEMA is authorized to provide PA for emergency protective measures necessary to save lives, and protect public health and safety.[6] For emergency protective measures to be eligible, an applicant is responsible for showing the work is required due to an immediate threat resulting from the declared incident.[7] Response activities conducted at EOCs may be eligible provided they are associated with eligible work.[8] Increased operating costs that pertain to patient care and administrative activities are ineligible for PA.[9] However, an exception is that when the emergency medical delivery system within a declared area is destroyed, severely compromised or overwhelmed, FEMA may fund extraordinary costs associated with operating emergency rooms and with providing temporary facilities for emergency medical care of survivors.[10] FAL OT for budgeted employees performing emergency work may be eligible based on the Applicant’s predisaster written labor policy, provided certain criteria are met.[11] 

Here, the Applicant is claiming FAL OT costs related to staff who worked in, what the Applicant indicates was, a virtual EOC. However, the Applicant has not demonstrated the costs were associated with response activities associated with eligible work. For instance, the Applicant-provided FAL summary sheets describe the work performed as “Medical (Mental Health and Substance Use Disorder) Care” or “Behavioral health, triage, crisis management, and medication management.” Further, statements in the Applicant’s appeal letters and the Board of Directors meeting minutes, indicate that the FAL OT costs related to staff routing and responding to the telephone calls from individuals who sought prescription refills and injections and/or customary patient care, so that the Applicant could fulfill people’s needs until the Applicant reopened its clinic offices. Moreover, while the Applicant indicates that patients needed emergency mental health care, the work performed by its staff was not work required to address an immediate threat resulting from the declared incident. Therefore, the documentation demonstrates the FAL OT costs constituted increased operating costs related to patient care and administrative activities, rather than eligible emergency protective measures implemented to address an immediate threat resulting from the declared incident.[12] In addition, the Applicant has not demonstrated the FAL OT costs relate to operating emergency rooms and with providing temporary facilities for emergency medical care of survivors. Therefore, the FAL OT costs are ineligible increased operating costs and thus, not eligible for PA.[13]

Conclusion

The Applicant has not demonstrated its FAL OT costs are associated with eligible emergency protective measures due to an immediate threat resulting from the declared incident rather than ineligible increased operating costs. Therefore, this appeal is denied.