Time Limitations/Extensions – Request for Public Assistance

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4337
Applicant	North Miami Beach Medical Center
Appeal Type	Second
PA ID#	N/A
PW ID#	RPA
Date Signed	2020-09-16T16:00:00

Summary Paragraph:

Hurricane Irma, which made landfall in Florida on September 10, 2017, damaged North Miami Beach Medical Center’s (Applicant) medical vehicle and its contents. The Applicant submitted a request for Individual Assistance (IA) on October 4, 2017.  FEMA denied the Applicant’s IA request on May 27, 2018, stating the vehicle and its contents did not fit the criteria for IA eligibility as it was not a primary residence.  On May 30, 2018, the Applicant responded to FEMA’s denial of IA contending it is a Private Nonprofit (PNP) organization not a residence.  On January 22, 2019, the Applicant sent a letter to the Governor of Florida requesting assistance and who directed the Applicant to the Florida Division of Emergency Management (Grantee).  On February 15, 2019, the Applicant submitted its Request for Public Assistance (RPA), which was transmitted to FEMA on February 22, 2019 along with the Grantee’s request to extend the deadline for submission of the RPA.  The FEMA Region IV Regional Administrator (RA) denied the extension request.  In its first appeal, the Applicant argued it was a PNP and the IA request had been completed by a FEMA representative.  The Grantee concurred and, also contended the IA request had been misdirected by FEMA.  On January 13, 2020, the RA denied the first appeal, determining that the Applicant did not demonstrate extenuating circumstances existed that justified a late submission of the RPA nearly eight months after its receipt of the May 2018 IA denial letter.  In its second appeal, the Applicant reiterates its argument from its first appeal.

Authorities and Second Appeals

• Stafford Act § 406(a)(3).
• 44 C.F.R. § 206.202(b)-(c), (f).
• PAPPG, at 130.
• Office of Pers. Mgmt. v. Richmond, 496 U.S. 414 (1990); Heckler v. Cmty. Health Servs., 467 U.S. 51 (1984); Immigration and Naturalization Serv. v. Miranda, 459 U.S. 14 (1982); Schweiker v. Hanson, 450 U.S. 785 (1981).
• Cameron Par. Sch. Bd., FEMA-1607-DR-LA (citing OPM v Richmond, 496 U.S. 414 (1990)).

Headnotes

• 44 C.F.R. § 206.202(b) and (c) delegate to the grantee the responsibility to provide technical advice and assistance to all applicants, to ensure all potential applicants are aware of available Public Assistance and the process for requesting assistance, including the relevant deadlines, to submit documents necessary for an award of grants, and to send the completed RPA within the 30 day time period. The justification must be based on extenuating circumstances beyond the applicant’s or the grantee’s control.
• The PAPPG, at 130, sets forth guidelines regarding the grantee’s responsibility to collect and transmit all RPAs within the regulatory deadline.
  • The Applicant did not establish that any miscommunication, misinformation or lack of understanding constitutes extenuating circumstances beyond its own or the Grantee’s control.  As such, the Applicant’s reasons fail to justify an extension by FEMA of the established deadline for submitting the RPA.

Conclusion

Upon review, FEMA finds the Applicant did not demonstrate its delay in submitting its RPA

is an extenuating circumstance beyond its and/or the Grantee’s control to warrant extending the deadline for the RPA.  Therefore, the appeal is denied.

 

Appeal Letter

Appeal Analysis

Background

On September 10, 2017, Hurricane Irma made landfall in the Florida Keys and for the following week the storm tracked up the state of Florida, damaging communities including Miami-Dade County, with severe winds, heavy rain and storm surge.  The President declared a major disaster on September 10, 2017.  

As a result of the disaster, the North Miami Beach Medical Center (Applicant) claimed damage to a medical vehicle and the medical equipment and supplies contained therein.  The Applicant submitted a request for Individual Assistance (IA) to FEMA on October 4, 2017.  FEMA found the Applicant was ineligible for IA in a letter dated May 27, 2018, stating damage caused by the disaster had not made the Applicant’s home unsafe to occupy, nor was the damaged facility a primary residence.  The Applicant responded to FEMA’s IA denial in a letter dated May 30, 2018, clarifying that its request for funding was never related to personal or home damage assistance, but was instead always related to disaster-related damage sustained by the Private Nonprofit (PNP) Applicant.  It emphasized that it uploaded appropriate documentation to a FEMA website.[1]

The Applicant submitted a letter dated January 22, 2019 to the Florida Office of the Governor requesting assistance in obtaining FEMA funding for its equipment and supplies.[2]  The Applicant thereafter submitted a Request for Public Assistance (RPA) dated February 15, 2019 to the Florida Division of Emergency Management (Grantee).  On February 22, 2019, the Grantee transmitted the Applicant’s RPA to FEMA with its own letter of support.  The Grantee noted that pursuant to Title 44 Code of Federal Regulations (44 C.F.R.) § 206.202(f)(2), FEMA has the authority to review an RPA submitted beyond the regulatory deadline based on extenuating circumstances beyond the control of the Applicant.  In support, the Grantee explained the Applicant was a first-time applicant that unknowingly applied for IA and had experienced significant delay in obtaining information regarding potential Public Assistance (PA) eligibility.  The Grantee additionally stated that incorrect advice from FEMA representatives led to the Applicant’s delay in requesting PA.     

FEMA denied the Applicant’s RPA in a letter dated February 25, 2019.  FEMA noted that with approved extensions, the RPA submission deadline for this disaster was the end of November 2017.  While the Applicant may have been confused as to the type of assistance FEMA offers, the Agency found this was not an extenuating circumstance beyond its control to support approval of an untimely RPA.

 

First Appeal

The Applicant submitted its first appeal on April 3, 2019.  The Applicant contended that a FEMA representative assisted in the preparation and completion of the application at a government center on October 4, 2017, and even though the Applicant told the FEMA representative that it was a PNP, the representative completed the incorrect application form (i.e., requested IA rather than PA).  The Grantee transmitted the Applicant’s first appeal on May 16, 2019 together with a letter of recommendation.  The Grantee reiterated arguments previously raised, and additionally stated that because FEMA personnel completed the Applicant’s initial application, the Applicant thought it was applying for the appropriate assistance.  The Grantee asserted the Applicant’s delay, therefore, in submitting its RPA was due to extenuating circumstances beyond its control.

FEMA sent a request for information (RFI) on November 4, 2019 to the Applicant and the Grantee.  In the RFI, FEMA explained the first appeal did not contain enough information to document that the RPA delay was due to extenuating circumstances beyond the Applicant’s or the Grantee’s control.  FEMA accordingly requested additional supporting documentation and an explanation for why neither the Applicant nor the Grantee submitted the RPA until February 22, 2019.  The Applicant responded on November 12, 2019 by reiterating its position in the original letter; the Grantee responded on November 26, 2019 stating it had no additional information.

On January 13, 2020, the FEMA Region IV Regional Administrator (RA) denied the appeal, determining that the Applicant did not demonstrate extenuating circumstances existed that justified a late submission of the RPA.  Specifically, FEMA found that the Applicant did not present extenuating circumstances that explained the nearly 8-month delay in filing its RPA after receipt of the May 27, 2018 IA denial letter.

 

Second Appeal

In its second appeal dated February 19, 2020 and transmitted by the Grantee on April 30, 2020, the Applicant reiterated its position and arguments from the first appeal.  The Applicant also identified, by name and ID number, the FEMA representative it contended completed the application and asserted the named FEMA representative was not an “expert” contrary to section 306(b) of the Robert T. Stafford Relief and Emergency Assistance (Stafford) Act.  The Applicant further explained that this FEMA representative chose the form submitted and was unable to print and provide a copy of the application due to the unavailability of equipment.  The Applicant stated the FEMA representative’s error resulted in the misdirection of initial application for assistance.  The Applicant also contended that although it submitted its appeal timely, FEMA did not respond to the appeal within 60 days, and the submission error was not discovered until the Applicant received the redirection notification from the Governor’s office.

 

Discussion

Section 406 of the Stafford Act authorizes FEMA to grant funds to PNP entities for critical services including emergency medical care.[3]  If a PNP wishes to seek PA funding, it must first submit an RPA to FEMA through the grantee within 30 days after designation of the area where the damage occurred.[4]  The grantee is responsible to provide technical advice and assistance to all eligible applicants, to ensure that all potential applicants are aware of available PA, to submit documents necessary for the award of grants, and to send the completed RPA to the RA within the 30-day time period.[5]  FEMA expects that the grantee will collect RPAs as soon as possible after the area is designated in the declaration or at the conclusion of the Applicant briefing but will accept RPAs up to the 30-day deadline.[6]

FEMA may extend the deadline for submitting an RPA when the grantee justifies and makes a request in writing.[7]  The justification must be based on extenuating circumstances beyond the applicant’s or the grantee’s control.[8]  Erroneous advice given by a government employee to an applicant cannot estop FEMA from denying benefits not otherwise permitted by law.[9]   

Here, the Grantee’s explanation for the RPA delay acknowledges the Applicant submitted a request for IA and followed the required IA procedures.  As noted above, it is the Grantee’s responsibility, not FEMA’s, to ensure the Applicant was aware of available PA.  Moreover, the Grantee provided no explanation for its failure to comply with its mandated responsibilities to assist the Applicant in obtaining disaster relief funding from FEMA.  The Applicant’s assertions of misinformation, misdirection, as well as its own lack of knowledge and lack of understanding of the PA Program are not circumstances outside of its or the Grantee’s control to overturn the RA’s decision on the first appeal.  Moreover, following receipt of the IA denial, the Applicant waited approximately 8 months to reach out to the State for assistance.  The Applicant’s RPA dated February 15, 2019, more than 462 days after the disaster and more than 271 days after receipt of the denial of IA, does not justify extenuating circumstances beyond the Applicant’s or the Grantee’s control to warrant an extension of the regulatory RPA deadline.

 

Conclusion

Based on the information provided, neither the Applicant nor the Grantee has demonstrated extenuating circumstances beyond either’s control to justify submitting the RPA after the required deadline.  Therefore, the second appeal is denied.

 

 

[1] FEMA did not respond to the Applicant’s May 30, 2018 letter directly but did address the letter as an “associated appeal memo” in its February 25, 2019 denial of the Grantee’s February 22, 2019 extension request.

[2] The Applicant noted that it received insurance proceeds for the medical vehicle, but was still requesting funding in the amount of $139,300.00 for the uninsured medical equipment and supplies.

[3] Robert T. Stafford Disaster Relief and Emergency Assistance Act, as amended, § 406(a)(3), 42 U.S.C. § 5172(a)(3) (2012).

[4] Title 44 Code of Federal Regulations (44 C.F.R.) § 206.202(c) (2016).

[5] Id. § 206.202(b)-(c).

[6] Public Assistance Program and Policy Guide, FP 104-009-2, at 130 (Apr. 1, 2018).

[7] 44 C.F.R. § 206.202(f)(2).

[8] Id.

[9] FEMA Second Appeal Analysis, Cameron Par. Sch. Bd., FEMA-1607-DR-LA at 4, footnote 11 (Dec.16, 2019) (quoting Office of Pers. Mgmt. vs. Richmond, 496 U.S. 414 (1990)).  Historically, the Federal Government has not been estopped from enforcing public laws, even when private parties may suffer hardship as a result of conduct by government agents that did not rise to the level of affirmative misconduct.  See Office of Pers. Mgmt. v. Richmond, 496 U.S. 414 (1990); Heckler v. Cmty. Health Servs., 467 U.S. 51 (1984); Immigration and Naturalization Serv. v. Miranda, 459 U.S. 14 (1982); Schweiker v. Hanson, 450 U.S. 785 (1981); Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380 (1947).