Immediate Threat

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Desastre	4486
Applicant	City of Miami
Appeal Type	Second
PA ID#	086-45000-00
PW ID#	GMP 176334
Date Signed	2023-04-10T16:00:00

Summary Paragraph

During the incident period of January 20, 2020 to May 11, 2023, the coronavirus (COVID-19) pandemic resulted in a major disaster declaration for the State of Florida. The City of Miami (Applicant) requested $110,139.50 in Public Assistance (PA) funding for the cost of daily meals for employees working in its Emergency Operations Center (EOC) between March 13 and June 2, 2020. FEMA issued a Determination Memorandum, finding the Applicant’s purchase of meals for the EOC was ineligible under FEMA policy, concluding that the costs incurred by the Applicant were an ineligible increased operating cost of providing routine government services. The Applicant submitted its first appeal for $110,139.50, asserting the EOC meals were eligible per FEMA policy, which allows meals for employees engaged in eligible emergency work at EOCs when certain criteria are met. The FEMA Region 4 Regional Administrator denied the appeal, finding the Applicant did not meet the policy criteria. In a letter dated December 5, 2022, the Applicant submitted its second appeal, reiterating its first appeal arguments.

Authorities and Second Appeals

• Stafford Act § 403(a)(3).
• 44 C.F.R. § 206.225(a).
• PAPPG, at 57-58, 63.
• Brunswick Cty. FEMA-4487-DR-NC, at 3.

Headnotes

• Provision of meals, including beverages and meal supplies, for employees and volunteers engaged in eligible emergency work, including those at EOCs, is eligible provided the individuals are not receiving per diem, and one of the following circumstances apply: (1) a qualifying labor policy or written agreement requires provision of meals; (2) conditions are sufficiently severe as to require employees to work abnormal, extended work hours without a reasonable amount of time to provide for their own meals; or (3) food or water is not reasonably available for employees to purchase. When these criteria are met, FEMA only reimburses the cost of meals that are brought to the work location and purchased in a cost-effective and reasonable manner, such as bulk meals. FEMA does not reimburse costs related to group outings at restaurants or individual meals.
  • The documentation provided by the Applicant establishes that conditions were sufficiently severe as to require employees to work extended hours without a reasonable amount of time to provide for their own meals. The meals were brought to the work location and purchased in a cost-effective and reasonable manner.

Conclusion

FEMA finds that the Applicant demonstrated the purchase of meals for personnel working in the EOC is eligible for Public Assistance. Accordingly, 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 on March 25, 2020, with an incident period of January 20, 2020 to May 11, 2023. The City of Miami (Applicant) requested $110,139.50 in Public Assistance (PA) funding for the cost of daily meals for employees working in its Emergency Operations Center (EOC) between March 13 and June 2, 2020. FEMA captured the Applicant’s request in Grants Manager Project 176334. The Applicant submitted daily invoices and receipts with the project that showed the quantity of meals purchased based on a fixed per-person price for each meal, with prices being $5.50 for breakfast, $7.00 for lunch, and $8.00 for dinner. On May 17, 2021, FEMA issued a Determination Memorandum, denying the costs as ineligible.[1] FEMA found the Applicant did not establish that: (1) conditions constituted a level of severity such that food was not reasonably available for staff to purchase; (2) meals were required based on a labor policy or written agreement; or, (3) food or water was not reasonably available for employees to purchase. FEMA concluded the costs incurred by the Applicant instead were increased operating costs of providing routine government services in a COVID-19 environment.

First Appeal

On July 30, 2021, the Applicant submitted a first appeal, asserting it was conducting eligible emergency protective measures at the EOC and the meals purchased for staff were reasonable, necessary, and eligible for PA. The Applicant acknowledged it does not have a labor policy or written agreement that requires the provision of meals but stated conditions at the EOC constituted a level of severity that required employees to work abnormal, extended work hours without a reasonable amount of time to provide for their own meals. It explained that employees at the EOC worked 12-hour shifts and employee assignments were generally not staffed with redundancies, which required all EOC staff to remain at the EOC for their entire 12-hour shifts. Additionally, the Applicant provided copies of local emergency orders which prohibited food service establishments from allowing customers to dine on-premises, only allowing for carryout or delivery. The Applicant stated that, due to increasing infection rates, shortages of personal protective equipment, and to reduce the potential exposure of EOC employees to the COVID-19 virus, it made the decision to purchase meals for the EOC employees and have the meals delivered to the EOC. The Applicant concluded that this measure, in conjunction with temperature checks, social distancing, and frequent testing, provided a safer workplace for individuals who were required to work at the EOC. The Applicant procured the meals from the closed cafeteria located in the same building as the EOC. On September 22, 2021, the Florida Division of Emergency Management (Recipient) transmitted the Applicant’s first appeal to FEMA recommending approval.

On October 6, 2022, the FEMA Region 4 Regional Administrator denied the first appeal, finding the Applicant did not provide documentation demonstrating that the provision of meals for employees performing eligible emergency work was necessary based on a labor policy. Further, FEMA determined the Applicant did not demonstrate that the circumstances constituted a level of severity that resulted in extended work hours without a reasonable amount of time for employees to provide their own meals, nor that food or water were not reasonably available for employees to purchase. FEMA also found that the Applicant’s purchase of the meals was not cost-effective.

Second Appeal

On December 5, 2022, the Applicant submitted its second appeal, confirming that EOC staff did not receive per diem and reiterating that due to social distancing and strict testing requirements, the EOC had no staffing redundancies to cover gaps in staffing, requiring the staff to stay on site for the entire 12-hour shift. The Applicant further added that bulk meals were purchased from the on-site cafeteria in accordance with the Applicant’s standard procurement policy to ensure both cost-effectiveness and reasonableness. Employees could not have purchased individual meals from the cafeteria as the service had to be procured in bulk; if employees opted out, then the service would not be available as the cafeteria was closed. The Applicant stated that the meal service ended as soon as staffing hours were reduced and the Applicant lifted citywide restrictions on dining options, showing the Applicant’s commitment both to cost-effectiveness and reasonableness. On October 24, 2022, the Recipient transmitted the second appeal with its support.

 

Discussion

FEMA may provide assistance to eligible PA applicants for emergency protective measures implemented to save lives and reduce immediate threats to public health and safety such as EOC-related costs.^[2] Provision of meals, including beverages and meal supplies, for employees and volunteers engaged in eligible emergency work, including those at EOCs, is eligible provided the individuals are not receiving per diem, and one of the following circumstances applies: (1) a qualifying labor policy or written agreement requires provision of meals; (2) conditions are sufficiently severe as to require employees to work abnormal, extended work hours without a reasonable amount of time to provide for their own meals; or (3) food or water is not reasonably available for employees to purchase.^[3] When these criteria are met, FEMA only reimburses the cost of meals that are brought to the work location and purchased in a cost-effective and reasonable manner, such as bulk meals.[4] FEMA does not reimburse costs related to group outings at restaurants or individual meals.^[5]

Here, individuals at the EOC were conducting eligible emergency protective measures and did not receive per diem. Local emergency orders limited restaurant options, such that food was available to purchase through delivery or takeout. However, due to limited staffing and strict COVID-19 protocols, employees were required to stay on site for their entire shift and did not have a reasonable amount of time to provide for their own meals. The Applicant made the decision to purchase bulk meals for the EOC staff from the on-site cafeteria to maintain social distancing and avoid exposure to non-EOC staff. The conditions associated with the outbreak of the COVID-19 pandemic constituted a level of severity that required employees to work extended hours without a reasonable amount of time to provide for their own meals. The meals were brought to the work location and purchased in a cost-effective and reasonable manner. To ensure both cost-effectiveness and reasonableness, the Applicant used its standard procurement policy to purchase bulk meals from the onsite cafeteria, which were delivered to the EOC with a per-person price for each meal of $5.50 for breakfast, $7.00 for lunch, and $8.00 for dinner. The meal service ended as soon as staffing hours were reduced and the Applicant lifted citywide restrictions on dining options. Therefore, the Applicant’s purchase of meals for personnel working in the EOC is eligible for reimbursement under FEMA's PA program.

 

Conclusion

FEMA finds that the Applicant demonstrated the purchase of meals for personnel working in the EOC is eligible for Public Assistance. Accordingly, this appeal is granted.

 

 

[1] The Applicant received FEMA’s Determination Memorandum on June 1, 2021.

[2] Robert T. Stafford Disaster Relief and Emergency Assistance Act § 403(a), Title 42, United States Code § 5170b(a) (2018); Title 44 Code of Federal Regulations § 206.225(a) (2019); Public Assistance Program and Policy Guide, FP 104-009-2, at 57-58 (Apr. 2018) [hereinafter PAPPG]; FEMA Fact Sheet, Coronavirus (COVID-19) Pandemic: Eligible Emergency Protective Measures, at 1 (Mar. 19, 2020).

[3] PAPPG, at 63; FEMA Second Appeal Analysis, Brunswick Cty., FEMA-4487-DR-NC, at 3

(Nov. 23, 2022).

[4] PAPPG, at 63.

[5] Id.