Immediate Threat, Increased Operating Costs

Appeal Brief

Appeal Letter

Appeal Analysis

Background

The coronavirus (COVID-19) pandemic resulted in a major disaster declaration for the state of Texas on March 25, 2020, with an incident period of January 20, 2020, to May 11, 2023. Harris County (Applicant) requested $880,871.21 in Public Assistance (PA) funding for various material and contract service costs incurred in response to the COVID-19 pandemic, including $8,585.83 in supply costs to clean and disinfect the County jail and inmate processing center. Those supply costs consisted of $150.95 for an aerosol spray can extension pole, $495.98 for deck scrub brush and metal polish wipes, $1,340.00 for 100 sealable buckets for cleaning (5-gallon jerricans), and $6,598.90 for 110 buckets and mops.

On February 29, 2024, FEMA issued a Determination Memorandum, denying the $8,585.83 in supply costs for cleaning and disinfection that it found were not related to eligible emergency work.[1]

First Appeal

In an April 26, 2024, letter the Applicant submitted a first appeal, requesting its claimed supply costs for cleaning and disinfection. The Applicant stated that it purchased the supplies between April and June of 2020, and used them for cleaning and disinfecting the jail and inmate processing center in accordance with guidance from the U.S. Environmental Protection Agency and Centers for Disease Control and Prevention (CDC).[2] The Applicant added that FEMA policy allowed for disinfection of public spaces.[3] In addition, the Applicant argued the costs meet FEMA’s criteria for eligible increased operating costs. In a letter dated May 13, 2024, the Recipient transmitted the appeal to FEMA, expressing its support.

The FEMA Region 6 Regional Administrator issued its response on September 25, 2024, denying the $8,585.83 in claimed supply costs. FEMA found these to be ineligible increased operating costs, explaining that the Applicant had contracted with Aramark Correctional Services, LLC (Aramark) since 2014 to clean and disinfect the Applicant’s facilities.

Second Appeal

In a November 22, 2024, letter the Applicant submitted a second appeal, requesting $8,586.63 for its claimed supply costs.[4] The Applicant reiterates prior arguments, adding that the costs were above and beyond its budgeted cleaning costs. In a letter dated 
December 17, 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.^[5] 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.[6] In response to COVID-19, eligible emergency protective measures may include certain specific, limited measures implemented to facilitate the safe opening and operation of eligible facilities, including cleaning and disinfection in excess of the applicant’s regularly budgeted costs, done in accordance with CDC guidance or that of an appropriate public health official available at the time the work was completed.[7] To be eligible, costs must be directly tied to the performance of eligible work and adequately documented.[8]

Increased costs of operating a facility or providing a service are generally not eligible, even when directly related to the incident.[9] However, short-term increased costs that are directly related to accomplishing specific emergency health and safety tasks as part of emergency protective measures may be eligible.[10] The additional costs are only eligible if: (1) the services are specifically related to eligible emergency actions to save lives or protect public health and safety or improved property; (2) the costs are for a limited time based on the exigency of the circumstances; and (3) the applicant tracks and documents the additional costs.[11] 

Here, the Applicant requests PA funding for supplies to clean and disinfect the jail and inmate processing center, such as mops, buckets, and jerricans, asserting the costs associated with the items are eligible increased operating costs. The Applicant claims that the supplies were used in accordance with CDC and FEMA guidance for disinfection of public facilities. However, the claimed supplies are typical of routine cleaning, and the Applicant has not demonstrated that they were used for eligible emergency protective measures in response to an immediate threat from COVID-19 in accordance with CDC guidance or that of another appropriate public health official.[12]Additionally, while documentation in the record indicates that the Applicant was responsible for providing cleaning supplies and Aramark provided the cleaning labor only,[13] the Applicant has not provided documentation (such as its annual expenditures for cleaning supplies) demonstrating that its claimed costs were in excess of its regularly budgeted cleaning costs and that it tracked the claimed additional costs. Therefore, the Applicant has not demonstrated the costs at issue are directly tied to the performance of eligible work in response to COVID-19. As the Applicant has not demonstrated that the claimed costs were specifically related to eligible emergency actions, they are not eligible increased operating costs.

Conclusion

The Applicant has not demonstrated that its claimed supply costs to clean and disinfect the jail and inmate processing center are eligible for assistance. Therefore, this appeal is denied.