Immediate Threat

Appeal Brief

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. Hillsborough County (Applicant) requested Public Assistance (PA) funding for various costs incurred in response to COVID-19 during the period of March 4, 2020, to June 25, 2020. The Applicant requested costs related to cleaning and disinfection equipment and supplies, communications equipment, medical supplies, Emergency Operations Center (EOC) supplies, training, protective supplies, food distribution, sheltering supplies, and social distancing supplies. FEMA prepared Grants Manager Project (GMP) 174262 to document the claimed costs.

On January 20, 2023, FEMA issued a Determination Memorandum, approving $4,406,794.78 for items such as cleaning and disinfection supplies (e.g., hand sanitizer, gloves, disinfectant spray, and spray bottles), protective supplies (personal protective equipment such as N-95 masks and face shields), and communications (e.g., billboards and social media ads for COVID-19 prevention), and denying the remaining requested $740,840.72. Regarding the denied costs, FEMA explained that they were increased operating costs of providing services in a COVID-19 environment and were not used for emergency actions due to an immediate threat. FEMA added that materials to decontaminate air and disinfect the Applicant’s facility were ineligible because the Applicant did not document how it implemented a layered approach and whether the work was completed based on Centers for Disease Control and Prevention (CDC) recommendations.

First Appeal

On March 20, 2023, the Applicant submitted a first appeal, requesting $739,187.24 of the previously denied costs,[1] claiming that they were not increased operating expenses but instead were necessary to save lives and protect public health and safety. The Applicant stated that it incurred the claimed costs early in the pandemic when FEMA had provided minimal policy guidance regarding what costs would be eligible. Regarding eligibility of air disinfection costs, the Applicant stated that it used all five of the approaches listed in FEMA policy for a layered approach to mitigate the virus, i.e., masks, physical distancing, frequent cleaning and disinfection of surfaces, hand hygiene, and vaccination. The Applicant stated that ultraviolet germicidal irradiation (UVGI) devices were installed based on CDC recommendations for indoor spaces with insufficient natural ventilation and where social distancing was difficult. The Applicant provided additional explanations regarding the eligibility of additional line items. On May 1, 2023, the Florida Division of Emergency Management (Recipient) transmitted the first appeal to FEMA, expressing its support.

In a letter dated February 13, 2024, the FEMA Region 4 Regional Administrator partially granted the first appeal, approving $381,928.19 and denying $357,259.05.[2] FEMA explained that the denied costs were not associated with eligible activities in FEMA’s COVID-19 policies or were not sufficiently supported by the Applicant’s documentation (further detail is included in the discussion section below).

Second Appeal

On April 14, 2024,[3] the Applicant filed a second appeal, requesting $357,123.40.[4] The Applicant reiterates its assertion that none of the requested costs were increased operating costs but instead were required to protect public health and safety. The Applicant cites to FEMA’s 
March 19, 2020 guidance, noting that it was issued to ensure resource constraints did not inhibit efforts to respond to the disaster.[5] The Applicant separated its claimed costs by category (see table below), providing its justification for each category’s approval (individual claims are included in the discussion below). On June 3, 2024, 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.^[6] For emergency protective measures to be eligible, the applicant is responsible for showing the work is required to eliminate or lessen an immediate threat resulting from the declared incident.[7] To be eligible, costs must be directly tied to the performance of eligible work and adequately documented.[8]

Cleaning and disinfection

In response to COVID-19, FEMA may provide assistance for certain specific, limited measures implemented to facilitate the safe opening and operation of eligible facilities. Eligible emergency protective measures under FEMA’s Coronavirus Pandemic: Safe Opening and Operation Work Eligible for Public Assistance Policy (O&O Policy) may include cleaning and disinfection that is done in accordance with CDC guidance or that of an appropriate health official at the time the work was completed.[9]  Air disinfection may be eligible in limited circumstances in accordance with FEMA’s O&O Policy.[10] FEMA may approve UVGI specifically as an air disinfection method if it was installed based on CDC recommendations, which are generally limited to installation in: (1) indoor spaces with insufficient or no mechanical HVAC systems or where adequate natural ventilation cannot be maintained year-round; (2) areas with an increased likelihood of sick people (for example, school nurse’s office, hospital waiting room); (3) crowded spaces, particularly when the health status of occupants is unknown (for example, courtrooms, lobbies, homeless shelter sleeping areas); (4) spaces where people must take off masks to eat or drink (for example, school/institutional cafeterias, restaurants, break rooms); and (5) areas where it is difficult to stay at least six feet apart from others.[11] However, FEMA has emphasized that the CDC does not recommend the use of UVGI for surface disinfection.[12]

Here, the Applicant requests $83,442.20 for the purchase of UV lights to facilitate the safe opening and operation of public facilities. FEMA previously denied funding because the Applicant did not provide documentation demonstrating that it used UV technology exclusively for air disinfection rather than surface disinfection, which is not eligible for PA funding. The Applicant asserts that it implemented a layered approach to mitigate the spread of the virus and that FEMA previously found this technology to be eligible in a prior second appeal decision.[13] In that case, however, FEMA found UVGI units to be eligible because the Applicant demonstrated that the UVGI work was limited to the type of high-risk areas (e.g., residence halls) listed in FEMA and CDC guidance.^[14] In this case, the Applicant stated that it installed UV lights in its public facilities but has not demonstrated that these are high-risk areas that meet FEMA and CDC guidance for the use of UV lights, or that they were used for air disinfection rather than surface disinfection. Thus, the Applicant has not demonstrated that its claimed cleaning and disinfection costs are eligible.

Communications

Eligible emergency protective measures may include dissemination of information to the public about health and safety measures and warnings of risks and hazards using various strategies, such as flyers, public service announcements, or newspaper campaigns.[15] 

Here, the Applicants requests $51,294.29 for signage, public surveys, and its ASPeCT Geo-Fencing and Contagion Tracking System Tool. FEMA previously denied the requested costs because the Applicant did not demonstrate they were used exclusively to disseminate COVID-19 related information. The Applicant asserts on second appeal that the claimed costs were directly related to the event, clarifying on second appeal that it spent $1,254.29 on signs to announce closure of parks due to COVID-19 and to identify medical supply drop-off locations; $40.00 on surveys to ask questions about COVID-19 testing and reopening of the County; and $50,000.00 on the contagion tracking system. While the Applicant provided documentation demonstrating its signs were used exclusively to disseminate COVID-19 related information, surveys are generally used for the collection, rather than the dissemination, of information. The Applicant provided a description of the contagion tracking system from the University of South Florida and Tampa General Hospital, which explains how it tracks the spread of the virus by tracking people’s location using their cell phones (i.e., whether they visit COVID-19 testing centers, or are isolating) and how to best manage the situation.[16] However, the description indicates that this is a concept tool that is in development, and the Applicant has not demonstrated that it used the system to disseminate COVID-19 related information to the public. Thus, the Applicant has demonstrated that $1,254.29 for signs was used exclusively to disseminate information about the event and is therefore eligible; however, the Applicant has not demonstrated that $40.00 for surveys and $50,000.00 for the contagion tracking system was used to disseminate information about the event and is therefore ineligible.

EOC Supplies

Certain costs associated with operating an EOC may be eligible.[17] 

Here, the Applicantt requests $22.70 for badges, providing documentation on second appeal that clarifies they were used to identify EOC personnel and other emergency workers prior to entry to the EOC. Specifically, the Applicant confirms on second appeal that the badges were color-coded to identify who may enter the EOC. The Applicant adds that costs for badges for similar purposes were found eligible in GMP 154670. In this case, the Applicant has demonstrated that the purchases of badges are eligible costs associated with operating an EOC.

Medical Supplies

Eligible emergency protective measures may include the provision of emergency medical care when required as a direct result of the disaster.[18] The work must be directly related to the treatment of COVID-19 patients (including both confirmed and suspected cases of COVID-19).[19] Eligible work and costs may include the purchase of specialized medical equipment, durable medical equipment, personal protective equipment, consumable medical supplies, and medical waste disposal related to COVID-19.[20]

The Applicant requests $23,387.53 for medical supplies, the overarching label the Applicant associates with these costs in the table it provides on second appeal. These are items purchased by its Fire and Rescue and Medical Examiner Departments, such as airway kits, biohazard bags, vomit bags, disposable hoods, and foldable stretchers to transport corpses. FEMA previously denied the requested costs, finding the Applicant did not demonstrate they were necessary to lessen or eliminate an immediate threat resulting from COVID-19, either to treat confirmed and suspected cases of COVID-19 or to safely open or operate an eligible facility, or specialized medical equipment necessary to respond to COVID-19. The Applicant states on second appeal that medical facilities were reasonably forecasted to become overloaded, the stretchers were necessary for emergency medical transport, and all the costs are considered specialized medical equipment necessary to respond to COVID-19. However, the Applicant did not provide supporting documentation demonstrating the items were used in the performance of eligible COVID-19 medical care as opposed to medical care unrelated to COVID-19.^[21] Thus, the Applicant has not demonstrated that its claimed medical supply costs are eligible for assistance. 

Warehouse Training

In response to COVID-19, eligible emergency protective measures may include training specific to the declared event.[22]

Here, the Applicant requests $170.00 for training two temporary employees to operate a forklift to store COVID-19 medical supplies. FEMA previously denied the requested cost, finding that it was not associated with eligible activities in FEMA’s COVID-19 policies or any comparable activity that eliminates or lessens an immediate threat (e.g., not related to specific COVID-19 training). The Applicant agrees that the training was not related to COVID-19 medical procedures but asserts that the training was otherwise necessary for the safety and security of COVID-19 medical supplies. Nonetheless, the Applicant has not demonstrated that forklift training is eligible training specific to the declared event of COVID-19, rather than routine training; thus, the Applicant’s claimed training costs are ineligible.

Protective Supplies

Eligible emergency protective measures under FEMA’s O&O Policy may include cleaning and disinfection, including the purchase and provision of necessary supplies and equipment in excess of the applicant’s regularly budgeted costs, that is done in accordance with CDC guidance or that of an appropriate public health official available at the time the work was completed.[23]

The Applicant requests $15,860.94 for what it characterizes in its second appeal table as protective supplies to eliminate exposure to contaminated surfaces (silicone glasses to cover water fountains, Metcraft retro-fit water solenoid, push button, extender; retro-fit automatic flush handle, urinal flush valve, faucets, deck plates; vinyl covering for phones; and paper hand towels). FEMA previously denied the requested costs, finding that they were not associated with any eligible activities in FEMA’s COVID-19 policies, or any comparable activity that eliminates or lessens an immediate threat. On second appeal, the Applicant states that the silicon glass covers were much easier to disinfect than to disassemble the water fountain drinking parts; the vinyl push button device was more effectively decontaminated and disinfected as compared to a long metal handle; dual flush conversion kits automatically flush toilets by sensor; and paper hand towels were easier to dispose of than cloth wash rags. While the requested items may have simplified the Applicant’s cleaning and disinfection work, the Applicant has not demonstrated that the requested costs were in excess of its regularly budgeted cleaning costs or that the work was done in accordance with CDC guidance or that of an appropriate public health official. Thus, the Applicant’s claimed costs for protective supplies are ineligible.­­[24]

Food for EOC and Emergency Workers

The provision of meals, including beverages and meal supplies, for employees and volunteers engaged in eligible emergency work, including those at EOCs, is eligible provided the individuals are not receiving per diem, and one of the following circumstances applies: (1) a qualifying labor policy or written agreement requires provision of meals; (2) conditions are sufficiently severe as to require employees to work abnormal, extended work hours without a reasonable amount of time to provide for their own meals; or (3) food or water is not reasonably available for employees to purchase.^[25] When these criteria are met, FEMA only reimburses the cost of meals that are brought to the work location and purchased in a cost-effective and reasonable manner, such as bulk meals.[26]

The Applicant requests $107,443.44 for the purchase of various meals and food (e.g., bulk orders of pizza from Pizza Hut and grocery items from Sam’s Club) that it supplied to EOC and emergency workers who the Applicant asserts were unable to leave their duty station (e.g., the security guard station and the COVID-19 medical supply warehouse) while responding to the event. FEMA previously denied these costs because the Applicant did not demonstrate that the workers were not paid per diem, that a labor policy or written agreement required meals, that employees did not have a reasonable amount of time to provide for their own meals, or the unavailability of meals to purchase. The Applicant states that feeding emergency workers is a provision of its employee pay policy; however, the Applicant did not provide this policy with its appeal. Under a separate second appeal, the Applicant provided a written predisaster directive that allowed it to purchase bulk meals and food items to be consumed at the EOC.[27] However, the directive did not require the provision of meals; it merely allowed the Applicant to provide meals at its discretion.[28] Thus, the Applicant has not demonstrated that the first condition of the above-cited FEMA policy is satisfied. Additionally, the Applicant has not provided documentation related to the severity of conditions to demonstrate that employees were required to work abnormal, extended work hours without a reasonable amount of time to provide their own meals.[29] Lastly, the cost documentation shows that the Applicant purchased bulk meals from local restaurants;[30] thus, the Applicant has not demonstrated that food or water was not reasonably available for employees to purchase. Therefore, the Applicant has not demonstrated that it met any of the three eligibility criteria for the provision of meals under FEMA policy.

Food for the Elderly

Under the COVID-19 declarations, FEMA may provide assistance for the purchase and distribution of food under limited circumstances.[31] Several indicators may demonstrate the need to purchase and distribute food in response to the COVID-19 pandemic: reduced mobility of people in need due to government-imposed restrictions, including “stay-at-home” orders, which prevent certain populations from accessing food; marked increase or atypical demand for feeding resources; or disruptions to the typical food supply chain within a given jurisdiction.[32]Populations in an impacted community that may need the provision of food as a life-saving or life-sustaining commodity may include: those who test positive for COVID-19 or have been exposed to COVID-19 but do not require hospitalization; high-risk individuals such as those over the age of 65 or with certain underlying health conditions; and other vulnerable populations, based on the direction or guidance of the appropriate public health official.[33]

The Applicant requests $10,507.88 for meal delivery to the elderly. FEMA previously stated that the Applicant did not provide information regarding to whom, and under what circumstances, it provided meals, and whether they met criteria listed under the applicable PA policy. On second appeal, the Applicant explains that meals were delivered to a distribution point for high-risk elderly individuals.[34] The Applicant states that the claimed costs should be eligible because the elderly are included as high-risk individuals eligible for the provision of food, and this was a one-time purchase rather than a standard pre-pandemic practice. While the Applicant clarifies the population it provided meals to, the Applicant still has not demonstrated that there was a need to provide meals to those elderly individuals in response to COVID-19 because of: reduced mobility due to government-imposed restrictions that prevented accessing food; a marked increase or atypical demand for feeding resources; or disruptions to the typical food supply chain. The Applicant’s request also includes $309.38 for the purchase of foot stools for meal delivery social distancing practices. FEMA previously found these costs to be ineligible as they are not considered temporary physical barriers under FEMA’s COVID-19 policies.[35] The Applicant did not provide additional information to substantiate their eligibility on second appeal. Therefore, the Applicant has not demonstrated that its claimed costs for the provision of food to the elderly are eligible for assistance.

Sheltering

Under the COVID-19 declarations, FEMA will consider requests for reimbursement of non-congregate sheltering (NCS) for health and medical-related needs, such as isolation and quarantine resulting from the public health emergency.[36] Eligible costs associated with NCS may include shelter facility costs, shelter staff costs, shelter supplies and commodities, and specific shelter services, including shelter safety and security.[37] Eligible costs associated with operating the EOC may include increased utility costs.[38]

The Applicant requests $1,472.26 for what it characterizes as sheltering costs in its second appeal table. FEMA previously found that the claimed costs were not associated with eligible NCS work or any other eligible activities that eliminate or lessen an immediate threat from 
COVID-19. However, the Applicant provides clarifying information regarding these costs on second appeal. The Applicant first documents that emergency communication equipment was required to provide adequate security at the NCS hotel, noting that riots erupted near the beginning of the incident period. The Applicant then establishes that the remaining costs are associated with the purchase of materials to establish electric utilities in the EOC field office. As the Applicant has provided documentation demonstrating $778.73^[39] is associated with providing NCS shelter safety and security services and $693.53[40] is associated with operating the EOC, the total requested costs of $1,472.26 are eligible.

 Social Distancing

Eligible emergency protective measures under the O&O Policy implemented to facilitate the safe opening and operation of eligible facilities are limited to the purchase and distribution of face masks and personal protective equipment, cleaning and disinfection, COVID-19 diagnostic testing, screening and temperature scanning, and purchase and installation of temporary physical barriers and signage to support social distancing.[41]

The Applicant requests $3,088.46 for webcams, Bluetooth headsets, conference lines, fireproof file safe, and printer ink for its staff to telework. FEMA previously denied funding because the Applicant did not demonstrate that the costs were associated with eligible activities in FEMA’s COVID-19 policies, or any comparable activity that eliminates or lessens an immediate threat. The Applicant states that it implemented telework for its staff during the pandemic to allow for the continuity of work. The Applicant adds that purchasing and installing the equipment prevented the spread of the virus in the workplace by allowing asymptomatic and otherwise exposed staff to work remotely. While the purchased items may have helped the Applicant’s staff continue to perform their work functions in a COVID-19 environment, the Applicant has not demonstrated that they were associated with any eligible activity in FEMA’s COVID-19 policies, or any comparable activity that eliminates or lessens an immediate threat from COVID-19.[42] Thus, the Applicant has not demonstrated that its claimed social distancing costs are eligible for assistance.

Conclusion

The Applicant has demonstrated that $2,749.25 of the requested costs are directly tied to the performance of eligible work but has not established that the remaining requested costs of $354,374.15 are directly tied to the performance of eligible work.[43] Therefore, this appeal is partially granted.