Immediate Threat

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4480
Applicant	City of White Plains
Appeal Type	Second
PA ID#	119-81677-00
PW ID#	GMP 144718
Date Signed	2022-11-01T16:00:00

Summary Paragraph

In response to the COVID-19 pandemic, the City of White Plains (Applicant) requested $384,697.10 in PA funding for various items related to COVID-19 response efforts.  FEMA issued a Determination Memorandum denying the $102,190.58 in costs that it determined were not tied to emergency protective measures.  The Applicant submitted its first appeal requesting the cost related to: (1) emergency orders’ advertisements and signs; (2) portable toilet rentals and its cleaning; (3) cleaning and disinfection supply costs associated with work in the library; (4) cleaning of its PSB; (5) a retractable belt barrier; (6) a hand drum pump; and (7) miscellaneous materials and supplies.  The Region II Regional Administrator found that the advertisements and signs to communicate COVID-19 warnings and a speak hole barrier were eligible emergency protective measures.  However, FEMA found that the cost for the rental of portable toilets and its cleaning; a retractable belt barrier; and miscellaneous materials and supplies were not related to eligible emergency protective measures.  FEMA remanded the question of eligibility regarding the: (1) cleaning and disinfection in its library; and (2) hand drum pump, to FEMA’s Joint Field Office (JFO) for a new review.  FEMA did not specify whether the cleaning of the PSB was eligible, ineligible, or remanded to the JFO.  The Applicant filed a second appeal requesting the costs of the portable toilet rentals and its cleaning, a retractable belt barrier, and cleaning of its PSB.

Authorities and Second Appeals

• Stafford Act § 403(a)(3).
• 44 C.F.R. §§ 206.223(a)(1), 206.225(a).
• PAPPG, at 19, 57.
• FP 104-21-0003, at 4-5.
• Fact Sheet, Eligible Emergency Protective Measures, at 1-2.
• FEMA Second Appeal Analysis, City of White Plains, FEMA-4480-DR-NY, at 2-3 (Sept. 27, 2022).

Headnotes

• FEMA may provide assistance for measures to reduce immediate threats to public health and safety, as well as certain measures to facilitate the safe opening and operation of eligible facilities in response to COVID-19 declared events.
  • The Applicant did not demonstrate the work associated with the portable toilet rentals and its cleaning was an eligible emergency protective measure or within any of the categories identified in FEMA’s COVID-19 or general PA policies.
  • The Applicant demonstrated the purchase of the retractable belt barrier, and the cleaning of the PSB are eligible emergency protective measures.

Conclusion

FEMA partially grants this appeal.  FEMA finds that the Applicant did not demonstrate the portable toilet rentals and its cleaning were an eligible emergency protective measure and therefore denies $7,857.35 associated with that work.  However, the Applicant has demonstrated that the retractable belt barrier and the cleaning of the PSB are eligible emergency protective measures.  Therefore, FEMA grants $156.78 in costs associated with the retractable belt barrier, but remands the issue of cost eligibility for the PSB cleaning to the Region II Regional Administrator for further review.

Appeal Letter

Appeal Analysis

Background

During the incident period of January 20, 2020, and continuing, the COVID-19 pandemic resulted in a major disaster declaration on March 20, 2020, for the State of New York.  The City of White Plains (Applicant) requested $384,697.10 in Public Assistance (PA) funding for force account labor (FAL) and force account equipment, contracts, materials, and supplies.  On

August 27, 2021, the Federal Emergency Management Agency (FEMA) issued a Determination Memorandum denying $102,190.58 of the claimed costs.[1]  FEMA found that the Applicant did not demonstrate that the denied items were tied to the performance of eligible emergency protective measures under FEMA’s Public Assistance (PA) program.  In addition, FEMA denied the FAL straight-time hours because only overtime FAL is eligible for emergency work.

First Appeal

In a letter dated October 12, 2021, the Applicant appealed $31,674.45 of FEMA’s denied costs for: (1) emergency orders’ advertisements and signs; (2) portable toilet rentals and its cleaning; (3) cleaning and disinfection supply costs associated with work in the library; (4) cleaning of its Public Service Building (PSB); (5) a retractable belt barrier; (6) a hand drum pump; and, (7) miscellaneous materials and supplies, such as, cut resistance gloves, leather gloves, washable keyboards, and cardiopulmonary resuscitation (CPR) supplies.  The Applicant asserted that the emergency orders’ advertisements provided the public with general health and safety information; the temporary restrooms were needed at certain facilities to provide social distancing where it was not possible at existing restrooms; and the materials to quarantine library books were necessary to protect employees and the public from the spread of the virus.

The New York State Division of Homeland Security and Emergency Services (Recipient) forwarded the Applicant’s appeal to FEMA, supporting the Applicant’s position.  The Recipient reiterated the Applicant’s arguments and disputed FEMA’s interpretation of what constitutes eligible emergency protective measures. 

The FEMA Region II Acting Regional Administrator partially approved the Applicant’s appeal.  FEMA found that the Applicant supported its position regarding the eligibility of emergency orders’ advertisements and signs to communicate COVID-19 warnings.  However, FEMA found that the cost for the rental of portable toilets and its cleaning; a retractable belt barrier; and miscellaneous materials and supplies, such as, cut resistance gloves, leather gloves, washable keyboards, and CPR supplies were not related to eligible emergency protective measures.  Lastly, FEMA remanded the question of eligibility regarding the: (1) cleaning and disinfection supply costs associated with work in the library and (2) hand drum pump, to FEMA’s Joint Field Office (JFO) for a new review.[2]  Although FEMA did not specify whether the cleaning of the PSB was eligible, ineligible, or remanded to the JFO, this issue will be addressed in this decision.

 

Second Appeal

In a letter dated May 2, 2022, the Applicant submitted its second appeal, disputing the denial of costs for the portable toilet rentals and its cleaning, the retractable belt, and cleaning of its PSB.[3]

The Applicant states that the toilet rentals were necessary to safely open and operate certain facilities providing social distancing.  The Applicant references the Centers for Disease Control and Prevention (CDC) guidance[4] and cites FEMA’s Fact Sheet Coronavirus (COVID-19) Pandemic: Eligible Emergency Protective Measures[5] in support of the eligibility of the costs for the portable toilet rentals.  Next, the Applicant states the retractable belt barrier was used to temporarily separate the public from employees in public spaces.  Lastly, it explains that disinfecting the PSB was an additional cleaning after a COVID infection among the staff and therefore also an eligible emergency protective measure. 

The Recipient transmitted the Applicant’s second appeal along with its letter of support.[6]  The Recipient reiterates and expands upon the Applicant’s claim that the portable toilet rentals were needed to provide alternate restroom capacity that met social distancing recommendations.  It argues that they should be considered temporary physical barriers under the Coronavirus (COVID-19) Pandemic: Safe Opening and Operation Work Eligible for Public Assistance (Interim) (Version 2) policy (O&O Policy)[7] that supports social distancing.  Regarding the retractable belt barrier, the Recipient argues that it is a physical barrier that allows for the safe operation of the Applicant’s offices. 

 

Discussion

FEMA is authorized to provide funding for emergency protective measures to save lives and protect public health and safety.[8]  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.[9]  FEMA may provide assistance to eligible PA applicants for emergency protective measures implemented to reduce immediate threats to public health and safety,[10] as well as certain measures to facilitate the safe opening and operation of eligible facilities in response to COVID-19 declared events, including cleaning and disinfection, as well as purchasing and installing temporary physical barriers.[11] 

The Applicant notes that the rentals of portable toilets were necessary to safely open and operate certain facilities while allowing for social distancing.  However, the Applicant has not demonstrated that this activity was associated with eligible emergency work under FEMA’s policies.  The O&O Policy limits eligible emergency protective measures in response to COVID‑19 to specific categories.  The rental of portable toilets is not an eligible emergency protective measure that is included under any of the categories in this policy or under other FEMA COVID-19 or general PA policies.  Additionally, FEMA finds that the portable toilets do not qualify as temporary physical barriers under the O&O Policy.  Furthermore, the CDC does not recommend this measure as a method to limit the spread of COVID-19.  Therefore, the portable toilet rentals and associated costs are not eligible for PA funding.

The Applicant also requested reimbursement for a retractable belt barrier to separate the public from employees in public spaces.  The O&O Policy includes the purchase and installation of temporary physical barriers to support social distancing as an eligible emergency protective measure.  Here, the retractable belt barrier (i.e., temporary physical barrier) was used to promote social distancing and created physical space between people in the COVID-19 environment.  This measure facilitates safe opening and operation, and thus it is eligible for PA.

Finally, the Applicant requested reimbursement for the cost associated with the cleaning of its PSB after staff tested positive for COVID-19.  The O&O Policy recognizes cleaning and disinfection as eligible measures for safely opening and operating a facility.  Therefore, the cleaning of the PSB is an eligible emergency protective measure under FEMA’s policy.  However, no documentation to sustain the cost claimed was submitted by the Applicant.  Accordingly, the eligibility of this cost is remanded to the Region II Regional Administrator for a review and determination.  The Applicant will maintain all appeal rights for the eligibility determination of the costs to clean the PSB. 

 

Conclusion

FEMA partially grants this appeal.  FEMA finds that the Applicant did not demonstrate the portable toilet rentals and its cleaning were an eligible emergency protective measure and therefore denies $7,857.35 associated with that work.  However, the Applicant has demonstrated that the retractable belt barrier and the cleaning of the PSB are eligible emergency protective measures.  Therefore, FEMA grants $156.78 in costs associated with the retractable belt barrier, but remands the issue of cost eligibility for the PSB cleaning to the Region II Regional Administrator for further review.

 

 

[1] FEMA denied costs for equipment, materials, and supplies, including: web cameras; laptops and other information technology; tape; spring lifts for a basket truck; basket truck covers; a degreaser; a mechanical lockset; plastic bags; leather gloves; and related supplies; FAL overtime performed by the Applicant’s Police Department employees for what it described as “monitoring essential workers for possible covid infection requiring quarantine;” contracts associated with emergency orders’ legal advertisement; portable toilet rentals and cleaning; maintenance; court transcriptions; deluxe flush unit rental; and remote phone service; the use of vehicles to patrol city parks; and straight-time FAL performed by budgeted employees.

[2] While the cost of the hand drum pump was inadvertently omitted in the amount remanded for JFO’s review, this decision confirms the work was included in the items remanded for a new review and eligibility determination.

[3] The Applicant also raises the issue of costs for cleaning and disinfection associated with work in the library and the hand drum pump, but because FEMA remanded these items to the JFO for review through the first appeal decision, they will not be addressed in this decision.

[4] Centers for Disease Control and Prevention, Interim Guidance for Businesses and Employers Responding to Coronavirus Disease 2019 (COVID-19) (May 2020).

[5] Fact Sheet, Coronavirus (COVID-19) Pandemic: Eligible Emergency Protective Measures (Mar. 19, 2020) [hereinafter Fact Sheet, Eligible Emergency Protective Measures]. 

[6] Although the Recipient argues the previously denied gloves are eligible as personal protective equipment to keep employees safe from COVID-19 while picking up garbage, the Applicant did not raise it as an item in dispute in its second appeal letter and therefore this item of work is not addressed in this decision.

[7] FEMA Policy 104-21-0003, Coronavirus (COVID-19) Pandemic: Safe Opening and Operation Work Eligible for Public Assistance (Interim) (Version 2) (Sept. 8, 2021) [hereinafter O&O Policy].

[8] 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) (2019).

[9] 44 C.F.R. § 206.223(a)(1); Public Assistance Program and Policy Guide, FP 104-009-2, at 19 (Apr. 1, 2018) [hereinafter PAPPG]; O&O Policy, at 4-5; Fact Sheet, Eligible Emergency Protective Measures, at 1-2.

[10] 44 C.F.R § 206.225(a)(3); Fact Sheet, Eligible Emergency Protective Measures, at 1-2; PAPPG, at 57.  As provided in the Fact Sheet, Eligible Emergency Protective Measures, FEMA may provide assistance for emergency protective measures that help manage, control, and reduce immediate threats to public health and safety: emergency operation center costs; training specific to the declared event; disinfection of eligible public facilities; and certain technical assistance to state, tribal, territorial, and local governments.

[11] O&O Policy, at 4-5.  Eligible work is limited to: (1) purchasing and distributing face masks and personal protective equipment; (2) cleaning and disinfection, including the purchase of supplies in excess of an applicant’s regularly budgeted costs; (3) performing COVID-19 diagnostic testing; (4) screening and temperature scanning, including the purchase and distribution of hand-held temperature measuring devices or temperature screening equipment; and (5) purchasing and installing temporary physical barriers, including plexiglass barriers and signage to support social distancing.  Id., at 4-5.