Immediate Threat

Appeal Brief

Appeal Letter

Appeal Analysis

Background

The coronavirus (COVID-19) pandemic resulted in a major disaster declaration for the state of New York on March 20, 2020, with an incident period of January 20, 2020, to May 11, 2023. In response to the pandemic, the Chenango Valley School District (Applicant) purchased 140 single-seating desks on August 25, 2021, to accommodate students returning to in-person learning while adhering to county-mandated social distancing requirements. FEMA prepared Grants Manager Project 334145 to document the Applicant’s claimed costs of $19,700.00.[1] In the project’s narrative, the Applicant explained that pre-pandemic, four students typically shared a multi-seating group table, but this arrangement did not provide for social distancing. The Applicant stated that it purchased the desks to maintain social distancing when it resumed its pre-kindergarten program and no longer offered remote classes. On June 15, 2023, FEMA issued a Determination Memorandum denying the Applicant’s requested costs. FEMA found that the purchase of the desks did not fall within the scope of eligible emergency protective measures as identified in FEMA policy.

First Appeal 

On August 7, 2023, the Applicant submitted a first appeal requesting $19,624.82 for the purchase and delivery of the desks. The Applicant asserted that the desks were part of its layered approach to address COVID-19 as it resumed its pre-kindergarten program and returned to in-person learning. The Applicant explained that temporary partitions/barriers could not be installed on the tables typically shared by students prior to COVID-19. It stated that the purchased desks allowed for safe social distancing, as recommended by the Centers for Disease Control and Prevention (CDC) and New York State Education Department (NYSED) and could be re-arranged as the pandemic evolved. The Applicant also asserted that its purchase aligned with the spirit and intent of FEMA COVID-19 policy, encouraging the division of physical spaces within classrooms to promote safe social distancing. 

In support of the appeal, the Applicant submitted photographs of the tables used pre-pandemic and the purchased desks, an invoice for the purchase and delivery of the desks, and guidance from the CDC and NYSED recommending universal indoor masking and distancing of at least three feet between students. On October 5, 2023, the New York State Division of Homeland Security and Emergency Services (Recipient) transmitted the first appeal to FEMA expressing its support. 

On December 15, 2023, FEMA Region 2 Regional Administrator denied the appeal. FEMA determined that the purchase of the desks was not a temporary measure, nor was it included in FEMA’s Coronavirus (COVID-19) Pandemic: Safe Opening and Operation Work Eligible for Public Assistance (Interim) (Version 2) policy (O&O Policy)[2]as a measure implemented to facilitate the safe opening and operation of an eligible facility.

Second Appeal 

On February 12, 2024, the Applicant submitted a second appeal reiterating its previously raised arguments. In addition, the Applicant explained that at the time of the purchase, plastic barriers were not a practical solution for the existing tables, and additionally, the CDC no longer recommended barriers. On April 12, 2024, the Recipient transmitted the second 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.^[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] In response to COVID-19, eligible emergency protective measures include certain specific, limited measures implemented to facilitate the safe opening and operation of all eligible facilities, including the acquisition and installation of temporary physical barriers, such as plexiglass barriers and screens/dividers, and signage to support social distancing such as floor decals.^[5] All work must be done in accordance with CDC guidance or that of an appropriate public health official available at the time the work was completed.^[6]

Here, the Applicant claims it purchased the single-person desks to facilitate operation of its school and allow for social distancing between students in accordance with CDC recommendations during the COVID-19 pandemic. The O&O Policy provides for specific, limited emergency protective measures to facilitate the safe opening and operating of eligible facilities. Desks are not considered to be temporary physical barriers and are not otherwise among the list of eligible emergency protective measures in the O&O Policy or any other FEMA COVID-19 policy.^[7] Further, while the CDC no longer recommended temporary physical barriers at the time of the Applicant’s work, FEMA finds that the purchase of desks to facilitate social distancing is not an eligible emergency protective measure included under the O&O Policy.^[8] Therefore, the purchased desks are ineligible for PA funding.

Conclusion

The Applicant has not demonstrated that the purchase and delivery of desks is an eligible emergency protective measure in response to an immediate threat from COVID-19. Therefore, this appeal is denied.