Time Limitations/Extensions – Private Nonprofit

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4286
Applicant	McLeod Health
Appeal Type	Second
PA ID#	000-U9BJR-00
PW ID#	PW 980
Date Signed	2020-09-21T16:00:00

Summary Paragraph

Hurricane Matthew damaged seven campuses belonging to the Applicant, a Private Nonprofit (PNP) hospital network in South Carolina.  In response, FEMA obligated Project Worksheet (PW) 980 as a Category A (debris removal) project, in which FEMA approved debris removal activities completed across the Applicant’s campuses between November 4, 2016 and January 3, 2017.  Thereafter, FEMA issued a determination memorandum that denied $63,732.00 in demolition costs for one structure located on the Applicant’s Loris campus (Loris Structure) and another building located on its Dillon campus (Dillon Structure).  In its first appeal, the Applicant asserted the demolition work constituted eligible emergency protective measures that should be funded either under this project, or PW 994 (a project FEMA approved for this Applicant to complete Category B emergency protective measures as a result of this disaster).  FEMA denied the appeal, finding that the Applicant: (1) did not identify either structure to FEMA within 60 days of the Applicant’s first substantive meeting with FEMA; and (2) completed work to the Dillon Structure after expiration of the project completion deadline for emergency work.  On second appeal, the Applicant produced an affidavit, which affirmed that the Applicant: (1) identified the damages and need to demolish both structures to FEMA within 60 days of the first substantive meeting; and (2) completed work to the Dillon Structure before expiration of the emergency work project completion deadline.  FEMA thereafter issued a Request for Information, seeking documentation specifying how the demolition of the Loris and Dillon Structures eliminated immediate threats to lives, public health, or safety.  In response, the Applicant relied on the prior correspondence from the cities that noted the hazardous conditions of both structures after the disaster.  In addition, the Applicant noted it acted promptly in demolishing the structures in order to eliminate or lessen immediate threats to lives, public health, or safety, as the public walked by both structures when coming or going from the respective hospitals that were still open after the disaster. 
 

Authorities and Second Appeals

• Stafford Act § 403(a)(3)(E).
• 44 C.F.R. §§ 206.201(b), 206.202(d)(1)(ii), 206.204, 206.225(a).
• PAPPG, at 18-19, 42-43, 57-58, 128.

Headnotes

• 44 C.F.R. § 206.202(d)(1)(ii) provides that applicants have 60 days following the first substantive meeting with FEMA to identify and report damage to the Agency.  44 C.F.R. § 206.204(c)(1) provides that generally, debris clearance and emergency work projects must be completed within six months of the disaster declaration date.
  • Based on the sworn testimony provided in the affidavit submitted on second appeal, the Applicant has demonstrated it met these regulatory requirements.
• Per the PAPPG, the demolition of structures may be eligible emergency protective measures if they eliminated or lessened immediate threats to lives, public health, or safety.
  • The Applicant has demonstrated the demolition-related work eliminated or lessened immediate threats to lives, public health, or safety.

Conclusion

The Applicant has demonstrated it identified disaster-related damages and completed work on both the Loris and Dillon Structures within the regulatory deadlines.  Further, the Applicant has shown the requested demolition-related work at issue in this appeal constitutes eligible emergency protective measures to be funded under PW 994.  Therefore, this appeal is granted.

 

Appeal Letter

Appeal Analysis

Background

From October 4 – 30, 2016, Hurricane Matthew damaged seven campuses belonging to McLeod Health (Applicant), a Private Nonprofit (PNP) hospital network in South Carolina.  In response, FEMA obligated Project Worksheet (PW) 980 as a debris removal/Category A project, approving debris removal activities completed across all of the Applicant’s campuses between November 4, 2016 and January 3, 2017. 

Thereafter, FEMA issued a determination memorandum that denied a total of $63,732.00 in demolition costs that the Applicant requested be reimbursed under PW 980.  The costs included demolition of one structure located on the Applicant’s Loris campus (Loris Structure) and another building located on its Dillon campus (Dillon Structure) due to a tree falling on each building.  FEMA first stated that it was not provided an opportunity to inspect the structures before demolition.  FEMA then pointed out that demolition work is categorized as an emergency protective measure (i.e., Category B work).  Therefore, even if the Agency determined the Loris and Dillon Structures were generally eligible for demolition, FEMA noted the costs would not be eligible for reimbursement under PW 980, as FEMA only approved that project for Category A debris removal work.

 

First Appeal

The Applicant appealed FEMA’s denial.  The Applicant first stated that FEMA had ample opportunity to inspect the Dillon Structure prior to demolition.  The Applicant noted that FEMA visited all campuses on February 13, 2017 to inspect the debris removal work completed, and that the Dillon Structure was not demolished until seven months later, on September 20, 2017.  The Applicant acknowledged it completed demolition of the Loris Structure on December 3, 2016, approximately two months before FEMA’s site visit, but stated that FEMA had ample opportunity to inspect the Loris Structure between the time period of the disaster and the demolition.

Next, the Applicant asserted the demolition work constituted eligible emergency protective measures that should be funded because the Applicant had to demolish the structures as quickly as possible to prevent and mitigate further unsafe conditions.  The Applicant provided a letter from the City of Loris notifying the Applicant that the Loris Structure must be demolished because it was structurally unsound due to a tree crushing the roof from the disaster.  It also transmitted a notice from the City of Dillon stating the Applicant must either repair the Dillon Structure to meet applicable codes and ordinances, or demolish it.  The notice stated the Dillon Structure: (1) had been condemned and deemed unsafe; (2) had been damaged by fire, flood, earthquake, wind or other cause; and (3) constituted a hazard to safety or health.  The Applicant requested that in the event FEMA denied the costs under PW 980, that the Agency then approve them under PW 994, a project comprising the Applicant’s completed Category B emergency protective measures for this disaster.[1]  The South Carolina Emergency Management Division (Grantee) transmitted the appeal to FEMA, with an accompanying letter recommending approval.

On November 13, 2019, the FEMA Region IV Regional Administrator denied the appeal, finding that the demolition of the Applicant’s structures was ineligible for Public Assistance (PA) funding.  First, FEMA determined the Applicant did not identify either structure within 60 days of the Applicant’s first substantive meeting with FEMA, failing to comply with Title 44 of the Code of Federal Regulations (C.F.R.) § 206.202(d)(1)(ii).  Second, specifically for the Dillon Structure, FEMA found that the Applicant completed work after expiration of the project completion deadline for emergency work set forth in 44 C.F.R. § 206.204(c).

 

Second Appeal

The Applicant submitted a second appeal for its requested $63,732.00 in PA reimbursement.  The Applicant first affirms it identified the damages to both structures to FEMA within the 60-day regulatory timeframe.  In support, the Applicant provides a January 10, 2020 affidavit from its Corporate Director of Emergency Management (CDEM).  In the affidavit, the CDEM attested under oath that within 60 days of the December 2016 kickoff meeting (i.e., the first substantive meeting with FEMA), the Applicant identified and reported to FEMA the damages to the Loris and Dillon Structures, and that both structures needed to be demolished. 

The Applicant next attests that it completed demolition on the Dillon Structure one month after the disaster, well within the regulatory project completion deadline.  The Applicant clarifies that in its first appeal letter, it erroneously referenced September 20, 2017 as the demolition completion date.  It explains that it mistakenly relied on the date of a September 2017 invoice which was simply a repeat bill for the same work originally invoiced on November 4, 2016.  Therefore, the Applicant states it actually completed the demolition work on the Dillon Structure by November 4, 2016.  In support, the Applicant transmits the November 4, 2016 contractor’s invoice, which documented the work completed to demolish the Dillon Structure. 

Last, the Applicant states that because it acted promptly in demolishing the structures that had been deemed unsafe and hazardous to the public, the work is eligible emergency work–the overarching description for Category A work.  Further, in the event FEMA does not find the work is eligible debris removal, the Applicant reiterates its request that FEMA approve the work as eligible emergency protective measures and fund the costs under a Category B project.  The Grantee transmitted the appeal to FEMA, attaching a letter requesting favorable consideration of the appeal.

Based on FEMA’s initial review of the second appeal, it issued a Request for Information (RFI) to the Applicant and the Grantee, seeking documentation that specified how the demolition of the Loris and Dillon Structures eliminated immediate threats to lives, public health, and safety.

The Applicant responded by pointing to the letter from the City of Loris that stated the building was structurally unsound as a result of the disaster.  The Applicant states the structurally damaged building posed an immediate threat to patients, workers, visitors, or others, who were near the structure or walked by the structure coming or going from the main hospital that remained open to the public after the disaster.  Similarly, the Applicant relies on the City of Dillon’s Notice of Unsafe Building to demonstrate the structure was unsafe and that the life, health, property or safety of its occupants or the general public were endangered.  As additional proof, the Applicant attached an October 12, 2016 email from an architect who inspected the property post-disaster.  The architect noted multiple structural damages and stated the partially downed tree on the roof and end wall of the building was in a dynamic state that could potentially cause a dangerous situation.  The Applicant states this posed an immediate threat to patients, workers, visitors, or others, who were near the structure or walked by the structure coming or going from the main hospital located next door, which remained open to the public after the disaster.

 

Discussion

Time Limitations/Extensions

1. Deadline for Identification of Damages – Loris and Dillon Structures

Federal regulation provides that applicants have 60 days following the first substantive meeting with FEMA to identify and report damage to the Agency.[2]  FEMA policy clarifies that the requirement to identify and report all disaster-related damage, emergency work activities, and debris quantities to FEMA must occur within 60 days of the kickoff meeting.[3]  

On second appeal, the Applicant provided a sign-in sheet that demonstrates its first substantive meeting with FEMA (i.e., the kickoff meeting) occurred in December 2016.  Per the affidavit from the Applicant’s CDEM, also provided on second appeal, the Applicant identified and reported the damage to both the Loris and Dillon Structures, and alerted FEMA of the need to demolish both, within 60 days of that meeting.  Therefore, based on the CDEM’s sworn testimony, the Applicant has demonstrated it complied with the deadline set forth in 44 C.F.R. § 206.202(d)(1)(ii) for both the Loris and Dillon Structures.

           

2. Project Completion Deadline – Dillon Structure

In order for work to be found eligible under disaster assistance grants, projects must be completed within regulatory deadlines.[4]  Generally, debris clearance and emergency work projects must be completed within six months of the disaster declaration date.[5] 

The Applicant confirms through the CDEM’s affidavit that it erroneously referenced September 20, 2017 as the demolition completion date for the Dillon Structure on first appeal.  The Applicant clarifies through its second appeal that it demolished the structure on November 4, 2016 (one month after the disaster), evidenced by the November 4, 2016 invoice.  Based on the CDEM’s sworn testimony, the Applicant has demonstrated it completed work to the Dillon Structure within the project completion deadline set forth in 44 C.F.R. § 206.204(c)(1).

 

Eligibility of Demolition-Related Work Completed by a PNP Applicant

FEMA may provide assistance for work essential to meeting immediate threats to life and property resulting from a major disaster, which includes the demolition of unsafe structures which endanger the public.[6]  This is known as emergency work, defined as work that must be done immediately to save lives and to protect improved property and public health and safety, or to eliminate or lessen the threat of a major disaster.[7]  Both debris removal and emergency protective measures constitute emergency work.[8]  FEMA policy provides that clearance activities may be eligible Category A debris removal activities if the removal is in the public interest based on, among other items, whether the work eliminates immediate threats to lives, public health, and safety.[9]  However, FEMA policy includes the demolition of structures as a specific example of an emergency protective measure that may be eligible Category B work.[10]  To be eligible, emergency protective measures must, among other criteria, eliminate or lessen immediate threats to lives, public health or safety.[11]

The City of Loris notified the Applicant that the Loris Structure must be demolished because the disaster rendered it structurally unsound.  Similarly, the City of Dillon transmitted a notice to the Applicant after the disaster that the Dillon structure had been condemned and deemed unsafe, constituting a hazard to safety or health.  In its response to FEMA’s RFI, the Applicant expounded on the above, explaining that both damaged buildings posed an immediate threat to patients, workers, visitors, or others, who were near the structure or walked by the structure coming or going from the main hospital that remained open to the public after the disaster.  This is why it demolished the structures within two months of the disaster – to promptly eliminate or lessen immediate threats to lives, public health or safety.  As such, the Applicant has demonstrated the work is eligible as an emergency protective measure and should be funded under Category B PW 994.[12]

 

Conclusion

The Applicant has demonstrated it identified disaster-related damages and completed work on both structures within the regulatory deadlines.  Further, the Applicant has shown the requested demolition-related work at issue in this appeal constitutes eligible emergency protective measures to be funded under PW 994.  Accordingly, this appeal is granted. 

[1] Project Worksheet 994, McLeod Health, FEMA-4286-DR-SC, Version 0 (May 24, 2018).  In PW 994, FEMA approved emergency protective measures that consisted of cleaning and securing the buildings located on the seven campuses (e.g., removing water from inside the facilities, replacing ceiling tiles, and securing roofs).   

[2] Title 44 Code of Federal Regulations (44 C.F.R.) § 206.202(d)(1)(ii) (2016).

[3] Public Assistance Program and Policy Guide, FP 104-009-2, at 128 (Jan. 1, 2016) [hereinafter PAPPG]..

[4] 44 C.F.R. § 206.204.

[5] Id. § 206.204(c)(1).

[6] Robert T. Stafford Disaster Relief and Emergency Assistance Act, as amended, § 403(a)(3)(E), 42 U.S.C. § 5170b(a)(3)(E) (2012); see 44 C.F.R. § 206.225(a) for the general emergency work definition.

[7] 44 C.F.R. § 206.201(b).

[8] PAPPG, at 18-19, 42.

[9] Id. at 43. 

[10] Id. at 57-58. 

[11] 44 C.F.R. § 206.225(a)(3).

[12] As FEMA finds the demolition-related work constitutes eligible Category B emergency protective measures, the request for funding under the designation of Category A debris removal work is moot.