Immediate Threat / Allowable Costs & Reasonable Costs

Appeal Brief

Summary Paragraph

The coronavirus (COVID-19) pandemic resulted in a major disaster declaration for the state of Florida from January 20, 2020, to May 11, 2023. Volusia County (Applicant) requested reimbursement for various costs, including respirators and associated filters for its first responders (e.g., emergency medical services personnel). FEMA prepared Grants Manager Project 551640 to document the requested costs. FEMA denied a total of $22,745.34 in costs associated with respirators and filters, finding the claimed costs were not associated with an eligible emergency protective measure related to COVID-19 but rather were increased operating costs. The Applicant appealed, asserted that the items constituted eligible personal protective equipment (PPE). The FEMA Region 4 Regional Administrator denied the $22,745.34 in costs associated with the respirators and associated filters, finding the Applicant did not demonstrate the items were eligible emergency protective measures. The Applicant submitted a second appeal requesting reimbursement of the respirators and associated filters, reiterating its argument that the items are eligible PPE and providing documentation that demonstrates the costs are reasonable.

Authorities

• Stafford Act § 403(a)(3).
• 44 C.F.R. §§ 206.223(a)(1), 206.225(a)(3)(i). 
• PAPPG, at 19, 22, 57.
• Work Eligible Policy at 3, 4, 7; Fact Sheet, Coronavirus (COVID-19) Pandemic: Eligible Emergency Protective Measures, at 2.

Headnotes

• FEMA may provide assistance for the purchase and distribution of PPE that is provided to first responders.
  • The Applicant has demonstrated the respirators and associated filters meet the applicable definition for PPE, and that they were provided to personnel who meets the applicable definition of first responders.
• To be eligible, costs must be reasonable.
  • The Applicant has demonstrated the average cost for the respirators and associated filters were less than the average cost for N95 masks, and thus, were reasonable.

Conclusion

The Applicant has demonstrated the purchase and distribution of the respirators and associated filters are eligible emergency protective measures and that the costs are reasonable. Therefore, this appeal is granted.

Appeal Letter

Appeal Analysis

Background

The coronavirus (COVID-19) pandemic resulted in a major disaster declaration for the state of Florida with an incident period of January 20, 2020, to May 11, 2023. Volusia County (Applicant) requested reimbursement under FEMA’s Public Assistance (PA) program for various costs, including respirators and associated filters for its first responders (e.g., emergency medical services personnel).[1] Based on the administrative record, all costs associated with respirators were incurred between August 2020 and February 2021. FEMA prepared Grants Manager Project (GMP) 551640/Project Worksheet (PW) 692 to document the Applicant’s requested costs.

FEMA issued two separate Determination Memorandums (DMs) on March 8, 2022, and October 12, 2022, denying a total of $22,745.34 in costs associated with respirators and filters.[2] FEMA found the claimed costs were not eligible emergency protective measures related to COVID-19, but rather were increased operating costs.   

First Appeal 

The Applicant submitted two appeals, one on April 30, 2022, and one on October 13, 2022, in response to the two DMs. The Applicant stated that the 7700 series respirators and associated filters constituted eligible personal protective equipment (PPE). In two separate letters signed June 6, 2022, and December 12, 2022, the Florida Division of Emergency Management (Recipient) expressed its support of the Applicants appeals.

FEMA issued a Request for Information (RFI) on March 2, 2023, requesting: (1) the departments and staff required to use respirator masks for emergency medical response; (2) an explanation for why it chose to purchase respirators instead of the N95 masks; (3) documentation demonstrating the Applicant selected the most reasonable cost alternative mask options; and (4) documentation demonstrating employees required to use respirators underwent fit testing and training. The Applicant responded in a letter dated April 20, 2023, providing a list of its departments and staff required to use respirator masks for emergency medical response, such as emergency medical services personnel. The Applicant asserts it was more cost efficient to purchase the respirators instead of purchasing and fitting the KN95 masks because the KN95 masks were hard to find in bulk and had varying fit test needs based on the brand. It also provided quotes for the 7700 respirators to demonstrate these respirators were reasonable. Lastly, the Applicant confirmed that fit tests were performed by Volusia County personnel but acknowledged it did not have documentation verifying the fit tests occurred. 

The FEMA Region 4 Regional Administrator denied $22,745.34 in costs associated with the respirators and associated filters, finding the Applicant did not demonstrate the items were eligible emergency protective measures. FEMA stated the Applicant had not demonstrated the items were used to perform disaster-related emergency work in response to an immediate threat. Further, FEMA stated the Applicant did not demonstrate it conducted fit testing for its employees, which was a required process per applicable authorities[3] and that without the testing, there was no verification that the masks were properly employed in response to COVID-19.

Second Appeal

The Applicant submits a second appeal dated October 9, 2023, requesting $22,745.34 for reimbursement of the previously denied respirators and associated filters. The Applicant states that it has demonstrated the respirators and associated filters are eligible PPE. The Applicant notes that its first responders used the respirators and filters for calls during the period of high COVID-19 transmission. Furthermore, the Applicant provides a comparison between the respirator, which averaged a cost of $1.65 per day, and N95 masks, which averaged a cost of $3.50 per day. In a letter signed December 8, 2023, the Recipient transmitted the appeal to FEMA in support of the Applicant.

Discussion

FEMA is authorized to provide assistance for emergency protective measures to save lives and protect public health and safety.[4] For emergency protective measure to be eligible, the applicant is responsible for showing the work is required due to an immediate threat resulting from the declared incident.^[5] FEMA may provide assistance for the purchase and distribution of PPE that is provided to first responders.[6] PPE refers to items such as N95 and other filtering respirators, surgical masks, gloves, protective eyewear, face shields, and protective clothing (e.g., gowns).[7] First responder refers to emergency public safety, fire, law enforcement, emergency response, emergency medical, and related personnel that may interact with individuals infected with, or suspected to be infected with, COVID-19.[8] To be eligible, a cost must be reasonable.[9] A cost is considered reasonable if, in its nature and amount, it does not exceed that which would be incurred by a prudent person under the circumstances prevailing at the time the decision was made to incur the cost.[10]

Here, the Applicant requests PA funding for the purchase and distribution of 7700 series mask respirators and associated filters. FEMA’s COVID-19 policies define PPE to include items such as N95 and other filtering respirators.[11] As such, the respirators and associated filters at issue in this appeal meet the definition of PPE. Similarly, FEMA policy defines first responders as including emergency response and emergency medical personnel that may interact with individuals infected with, or suspected to be infected with, COVID-19. The Applicant’s emergency medical services personnel at issue here, who interacted with COVID-19 infected members of the public on a regular basis, satisfy the definition of a first responder. Therefore, as the claimed costs involve the purchase and distribution of PPE that were provided to first responders, applicable FEMA COVID-19 policy authorizes assistance. Additionally, the Applicant has demonstrated that the costs associated with purchasing the respirators and associated filters were reasonable in comparison to the costs associated with purchasing N95 masks. Thus, the Applicant has demonstrated that the purchase and distribution of the respirators and associated filters are eligible emergency protective measures and that the costs are reasonable.

Conclusion

The Applicant has demonstrated the purchase and distribution of the respirators and associated filters are eligible emergency protective measures and that the costs are reasonable. Therefore, this appeal is granted.