Immediate Threat/Evacuation, Medical Care, and Sheltering

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4480
Applicant	New York City Housing Authority
Appeal Type	Second
PA ID#	061-51000-34
PW ID#	GMP 157454
Date Signed	2022-08-23T16:00:00

Summary Paragraph

The New York City Housing Authority (Applicant) requested $5,662,368.00 in Public Assistance funding to install air conditioner (AC) units in residences, stating it was done to provide vulnerable individuals a space safe from both heat exposure and exposure to coronavirus (COVID-19).  FEMA issued a Determination Memorandum, finding that the Applicant had not demonstrated that the installation of AC units was necessary to reduce or prevent the transmission of COVID-19.  The Applicant appealed, stating that FEMA incorrectly characterized the work as unnecessary to reduce or prevent COVID-19 transmission when the distribution of ACs served as a form of non-congregate sheltering.  The New York State Division of Homeland Security and Emergency Services (Grantee) supported the appeal.  The FEMA Region II Acting Regional Administrator denied the appeal, finding that the installation of AC units in private residences was not required to respond to the COVID-19 emergency or support an eligible non-congregate sheltering operation.  The Applicant submitted its second appeal, reiterating its first appeal arguments and asserting that the installation of AC units was necessary to provide non-congregate sheltering for high-risk residents.  The Grantee supports the appeal. 

Authorities

• Stafford Act § 403(a)(3).
• 44 C.F.R. §§ 206.223(a)(1), 206.225(a).
• PAPPG, at 19, 58, 65-66.
• Fact Sheet, Eligible Emergency Protective Measures, at 1-2.
• Fact Sheet, Non-Congregate Sheltering Delegation of Authority, at 1.

Headnotes

• Generally, FEMA does not provide assistance for emergency sheltering in non-congregate environments.  In limited circumstances, such as when congregate shelters are not available or sufficient, FEMA may reimburse costs related to emergency non-congregate sheltering, but the applicant must submit its request for funding and obtain FEMA approval prior to sheltering survivors in non-congregate facilities.
  • The Applicant has not demonstrated the installation of AC units in individual apartments was required to support an eligible non-congregate sheltering operation.

Conclusion

FEMA finds the Applicant has not demonstrated it performed work required to support an eligible non-congregate sheltering operation.

 

Appeal Letter

Appeal Analysis

Background

During the incident period of January 20, 2020 and continuing, the coronavirus (COVID-19) pandemic resulted in a major disaster declaration on March 20, 2020 for the State of New York.  On April 3, 2020, the FEMA Region II Regional Administrator (RA) approved the use of non-congregate shelters in response to a New York City Emergency Management (NYCEM) request.[1]  FEMA limited the non-congregate sheltering to COVID-19 symptomatic and asymptomatic individuals exposed to COVID-19 who did not require hospitalization and did not have access to an isolated setting.  In the request, the NYCEM stated that it would use hotels and motels for non-congregate sheltering and possibly dormitories, armories, and rental units, as appropriate.  This approval was limited to costs associated with sheltering individuals from March 10-April 30, 2020. 

The New York City Housing Authority (Applicant) requested $5,662,368.00 in costs to install 13,702 window-mounted air conditioner (AC) units in private residences.  The Applicant noted in the project application that because of the forced closures of public gathering spaces to limit person-to-person contact, which included cooling centers, elderly residents were forced to remain in their apartment units during summer months in which the National Oceanic and Atmospheric Administration’s Climate Prediction Center had predicted above-normal temperatures.[2]  The Applicant asserted that, to protect the health and safety of these elderly residents, it elected to install window-mounted AC units to provide a space safe from both prolonged heat exposure and exposure to COVID-19.[3] 

On July 26, 2021, FEMA issued a Determination Memorandum denying funding.  FEMA found that the Applicant did not demonstrate that the installation of AC units was necessary to reduce or prevent the transmission of COVID-19.  Additionally, FEMA noted that extreme temperatures and heat exposure are not threats caused by or directly related to the COVID-19 pandemic.

First Appeal

In a letter dated August 31, 2021, the Applicant appealed FEMA’s determination, stating that FEMA incorrectly characterized the work as unnecessary to reduce or prevent COVID-19.  The Applicant stated that it is legally responsible for implementing protection for its residents under the New York State and New York City emergency executive orders.  The Applicant stated that New York City cooling centers were closed per Emergency Executive Order No. 100 on March 16, 2020.  The Applicant noted that the installation of AC units was necessary to provide non-congregate sheltering for these high-risk residents and complies with FEMA’s Fact Sheet on Public Assistance: Non-Congregate Sheltering Delegation of Authority.[4]   

On November 2, 2021, the New York State Division of Homeland Security and Emergency Services (Grantee) transmitted the Applicant’s appeal with its support.  The Grantee reiterated and further explained the Applicant’s claims.  For example, the Grantee asserted that, with the ongoing dangers of COVID-19, emergency protective measures to prevent the spread of the virus among high-risk residents are necessary to protect the health and safety of the community.  Also, the Grantee stated that the Applicant undertook this measure at the recommendation of public health authorities and that the measure was consistent with FEMA’s Public Assistance Program and Policy Guide.[5]

On February 1, 2022, the FEMA Region II Acting RA denied the first appeal, finding that the installation of AC units was not required to respond to the COVID-19 emergency or support an eligible non-congregate sheltering operation.  The RA noted that the fact that residents remained in their homes demonstrated they did not need the type of sheltering NYCEM requested for those without access to an isolated environment.

Second Appeal

The Applicant submitted its second appeal on March 31, 2022, reiterating its first appeal arguments.  The Applicant states that, because the cooling centers were closed under New York City’s emergency executive order, it provided AC units to high-risk individuals that could not safely isolate themselves in their homes during the summer months of the pandemic.  The Applicant explained that the installation of AC units was necessary to provide non-congregate sheltering for these residents.

On May 24, 2022, the Grantee forwarded the Applicant’s second appeal with its support.  The Grantee reiterates the Applicant’s claim that the measures taken by the Applicant were necessary to compensate for the closure of the cooling centers.  The Grantee adds that installing AC units was more cost-effective than other options such as providing non-congregate sheltering in a hotel.

 

Discussion

FEMA is authorized to provide emergency protective measures to save lives and protect public health and safety.[6]  All work must be required as a direct result of the declared incident and, for COVID-19 declarations, must be done in accordance with the guidance of or at the direction of appropriate public health officials.[7]  FEMA may provide assistance to eligible Public Assistance (PA) applicants for measures implemented to reduce immediate threats to public health and safety such as evacuation and sheltering.[8]  Generally, FEMA does not provide PA funding for emergency sheltering in non-congregate environments.[9]   In limited circumstances, such as when congregate shelters are not available or sufficient, FEMA may reimburse costs related to emergency sheltering provided in non-congregate environments.[10]  The applicant must obtain FEMA approval prior to sheltering survivors in non-congregate facilities.[11]  For COVID-19 declarations, FEMA has delegated the authority to its RAs to approve requests for non-congregate sheltering.[12]  Any approval is limited to that which is reasonable and necessary to address the public health needs of the event and should not extend beyond the duration of the Public Health Emergency.[13] 

Here, the Applicant states that it elected to install AC units in residences as a form of non-congregate sheltering to provide vulnerable individuals a space safe from both prolonged heat exposure and from exposure to COVID-19.  The non-congregate sheltering NYCEM previously requested and FEMA approved was limited to specific conditions and did not include the installation of AC units in private residences nor did the Applicant demonstrate the installation of AC units complied with the conditions established in the previously approved non-congregate sheltering request.  For example, the Applicant did not demonstrate that the individuals to whom AC units were provided were exposed to COVID-19 and lacked access to an isolated environment.  Also, the Applicant did not establish that the measures it states are a form of non-congregate sheltering would not extend beyond the duration of the approved request.  Therefore, the installation of AC units do not support an eligible non-congregate sheltering operation and are ineligible for PA funding.

 

Conclusion

The Applicant has not demonstrated it performed work required to support an eligible non-congregate sheltering operation.  Therefore, this appeal is denied.

 

[1] See Letters from Reg’l Adm’r, FEMA Region II, to Alternate Governor’s Authorized Representative, N.Y. St. Div. of Homeland Sec. and Emergency Servs., and Commissioner, NYCEM (Mar. 30, 2020, and Apr. 3, 2020).

[2] Grants Manager Project 157454, New York City Housing Authority, see Description of Activities, Streamlined Project Application (completed Nov. 4, 2020).

[3] Id., at 1.

[4] FEMA Fact Sheet, Public Assistance: Non-Congregate Sheltering Delegation of Authority (Mar. 19, 2020) [hereinafter Fact Sheet, Non-Congregate Sheltering Delegation of Authority].

[5] Public Assistance Program and Policy Guide, FP 104-009-2 (Apr. 1, 2018) [hereinafter PAPPG].

[6] Robert T. Stafford Disaster Relief and Emergency Assistance Act § 403(a)(3), Title 42, United States Code § 5170b(a)(3) (2018); Title 44 Code of Federal Regulations (44 C.F.R.) § 206.225(a)(1) (2019).

[7] 44 C.F.R. § 206.223(a)(1); PAPPG, at 19;  FEMA Fact Sheet, Coronavirus (COVID-19) Pandemic: Eligible Emergency Protective Measures, at 1-2 (Mar. 19, 2020).

[8] PAPPG, at 58, 65.

[9] Id., at 66.

[10] Id.

[11] Id.

[12] Fact Sheet, Non-Congregate Sheltering Delegation of Authority, at 1.

[13] Id.