Immediate Threat

Appeal Brief

Summary Paragraph

On March 25, 2020, the President issued a major disaster declaration for the state of Florida with an incident period of January 20, 2020 to May 11, 2023, for the coronavirus (COVID-19) pandemic. Aspire Health Partners (Applicant), which owns and operates in-patient facilities for individuals with mental health and substance abuse issues, entered into a third-party contract to augment its staff during COVID-19. The temporary staff performed work from July 2020 through September 2021. The Applicant requested $2,726,341.15 in Public Assistance funding for the contract labor costs documented in Grants Manager Projects (GMPs) 546455, 546459, 546460, and 546466. FEMA issued determination memoranda denying all contract labor costs under the projects, finding the Applicant did not show it used the contracted staff to perform eligible emergency work to respond to COVID-19. FEMA found the contracted labor costs were an increased operating cost of continuing to provide services in a COVID-19 environment. The Applicant submitted first appeal requests to the Florida Division of Emergency Management, stating the additional labor was necessary to respond to COVID-19. FEMA issued a Request for Information seeking: (1) work or activity logs; (2) identification of the backfilled positions; (3) the duties assigned to each position; and (4) the total number of contracted temporary employees. The Applicant responded, providing: (1) a list of COVID-19-related responsibilities broken down by position; (2) its internal COVID-19 protocols and associated guidelines; and (3) Florida Health Department COVID-19 guidance. The FEMA Region 4 Regional Administrator denied the appeals, stating it was unable to validate the claimed work as eligible. The Applicant submits second appeals, asserting the temporary staff performed eligible work. 

Authorities

• Stafford Act §403(a)(3). 
• 2 CFR § 200.403(g); 44 CFR §§ 206.223(a)(1), 206.225(a)(3)(i). 
• PAPPG, at 19, 21, 57, 133.
• Medical Care Policy, at 2-4, Work Eligible Policy, at 3, Eligible Emergency Protective Measures Fact Sheet, O&O Policy.
• City of Long Beach, FEMA-4482-DR-CA, at 3; City of Biloxi, FEMA-4528-DR-MS, at 5; Florida Christian Homes, FEMA-4486-DR-FL, at 3.

Headnotes

• To be eligible for PA reimbursement, costs must be directly tied to the performance of eligible work and adequately documented. The FEMA Medical Care Policy allows for funding of eligible medical care activities and associated costs in primary medical care facilities. 
• The Applicant has not substantiated that the claimed labor costs are directly tied to the performance of eligible work.

Conclusion

FEMA finds that the Applicant has not demonstrated that the contracted labor costs are directly tied to the performance of eligible work. Therefore, this appeal is denied.

Appeal Letter

Appeal Analysis

Background

On March 25, 2020, the President issued a major disaster declaration for the state of Florida with an incident period of January 20, 2020 to May 11, 2023, for the coronavirus (COVID-19) pandemic. Aspire Health Partners (Applicant), which owns and operates in-patient facilities for individuals with mental health and substance abuse issues, entered into a third-party contract with Voyage Healthcare LLC (Voyage) in July 2020, to augment its staff during COVID-19. The temporary staff performed work from July 2020 through September 2021.[1] The Applicant requested $2,726,341.15 in Public Assistance (PA) funding for the contract labor costs documented in Grants Manager Projects (GMPs) 546455, 546459, 546460, and 546466. FEMA issued determination memoranda on January 9, 2023 and February 8, 2023, denying all contract labor costs under the projects, finding the Applicant did not show it used the contracted staff to perform eligible emergency work to respond to COVID-19.[2] FEMA found the contracted labor costs were an increased operating cost of continuing to provide services in a COVID-19 environment.

First Appeals 

Between March 9 and March 15, 2023, the Applicant submitted undated first appeals to the Florida Division of Emergency Management (Recipient), stating the additional labor was necessary to respond to COVID-19, adding it needed to redesign its staffing model during the COVID-19 response. The Applicant claimed that its actions were representative of the eligible medical care outlined in FEMA policy. The Applicant also asserted that had it not provided essential medical and behavioral healthcare services, the Central Florida healthcare system would have potentially collapsed because these patients would have been redirected to other regular hospitals that were already overwhelmed. 

FEMA issued a Request for Information seeking: (1) work or activity logs; (2) identification of the backfilled positions; (3) the duties assigned to each position; and (4) the total number of contracted temporary employees. The Applicant responded, providing: (1) a list of COVID-19-related responsibilities broken down by position; (2) its internal COVID-19 protocols and associated guidelines; and (3) Florida Health Department COVID-19 guidance. For a Registered Nurse (RN), the breakdown of responsibilities included entries such as provide care and treatment for COVID-related symptoms and triage of patients. For a Licensed Practical Nurse (LPN), the responsibilities included descriptions like provide medical care and treatment for COVID-related symptoms; provide COVID vaccinations when requested; and clean and disinfect surfaces and medical equipment in procedure rooms as well as medical equipment used for patient care. Regarding the position of Behavioral Health Technician (BHT), the breakdown included items such as screen visitors and patients for COVID; and ensure patients and visitors are provided and wearing personal protective equipment (PPE).

On October 12, 2023, the FEMA Region 4 Regional Administrator denied the appeals, stating it was unable to validate the claimed work as eligible. Based on the Applicant’s documentation, FEMA found the Applicant had not shown that the contracted employees performed eligible emergency protective measures during the claimed hours. 

Second Appeals

On December 6, 2023, the Applicant submitted separate second appeals for each GMP, asserting the temporary staff performed eligible work. The Applicant also states that the specific documentation required to support force account labor, such as activity logs, locations of work performed and timesheets, is not required for contract labor costs. The Recipient forwarded the Applicant’s appeals to FEMA with its support.

Discussion

FEMA may provide funding for emergency protective measures that are necessary to save lives and protect public health and safety.[3] 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.[4] FEMA may only provide assistance for medical care in response to COVID-19 declared events that is provided in accordance with a COVID-19 specific policy.[5] Eligible work and associated costs include triage and medically necessary tests and diagnosis related to COVID-19; necessary medical treatment of COVID-19 patients; vaccinations; disinfection of facility and equipment in accordance with applicable guidance; delivery of PPE necessary to respond to COVID-19; and certain labor costs.[6] In addition to medical care, FEMA may also provide assistance for measures implemented to facilitate the safe opening and operation of all eligible facilities in response to COVID-19.[7] This includes cleaning and disinfection, as well as screening and temperature scanning.[8] FEMA requires documentation to support that the work is eligible, which should include the “who, what, when, where, why, and how much” for each item claimed.[9] Costs must be directly tied to the performance of eligible work and adequately documented.[10] It is the applicant’s responsibility to provide documentation to support its claim is eligible and to clearly explain how those records support the appeal.[11]

Here, the Applicant requests reimbursement for the costs of temporary contracted healthcare labor that performed work from July 2020 through September 2021.[12] In support, the Applicant provides a list of COVID-19-related responsibilities for an RN, LPN, and BHT. Certain activities that are listed generally correspond to some potentially eligible emergency protective measures, such as the medical care and treatment of COVID-19 patients, providing COVID-19 vaccinations, distributing PPE, screening for COVID-19, and cleaning and disinfecting.[13] However, these general descriptions alone do not provide enough detail to demonstrate the eligibility of the work or directly tie the claimed costs to eligible work. For example, documentation the Applicant submitted lists the employees’ names, locations, and hours worked, but lacks any description of the tasks the contract labor performed during these hours. In addition, neither the Applicant-provided invoices, nor the time sheets, distinguish between hours and associated costs directly tied to potentially eligible COVID-19 work rather than routine work related to operating in-patient facilities for individuals with mental health and substance abuse issues.[14] Similarly, the Applicant has not provided contract documentation that would indicate that the scope of work for these temporary contract employees was limited to providing treatment to COVID-19 patients, or performing other eligible work, consistent with FEMA’s COVID-19 policies.[15] As the Applicant has not demonstrated the claimed contract labor costs are directly tied to eligible work, the requested costs are not eligible.

Conclusion

The Applicant has not demonstrated that the contracted labor costs are directly tied to the performance of eligible work. Therefore, this appeal is denied.