Immediate Threat

Appeal Brief

Summary Paragraph

The COVID-19 pandemic resulted in a disaster declaration on March 20, 2020 for the State of New York, with the incident period of January 20, 2020 through May 11, 2023. The Applicant, a Private Non-Profit that distributes food to food-insecure families, set up multiple outdoor food distribution sites (Sites 1-3) and requested Public Assistance (PA) funding for face masks, cleaning and disinfection services and supplies, rented handwashing stations and sinks, and signage (i.e., signs, banners, and flags). In a Determination Memorandum, FEMA denied the request, stating that, because the Applicant did not provide any state or local agreement to distribute food on its behalf, the items and associated costs were used for ineligible work. The Applicant appealed, contending that these measures were taken to safely open and operate the Sites; it had agreements to use the Sites; and the Sites were eligible facilities under FEMA’s policies. FEMA issued an RFI seeking documentation to support the Applicant’s assertions. The Applicant responded that it had  authorization to use Site 1, its PA request was only for the COVID-19 measures performed, and that it had no service contracts. The FEMA Region 2, Regional Administrator, denied the appeal, stating that, although the Applicant established that it operated eligible facilities at Sites 2 and 3, all costs claimed were ineligible for PA funding. The Applicant submitted its second appeal, reiterating its first appeal arguments and requesting $36,214,61 for cleaning and disinfection services, face masks, sink, handwashing stations, and signage costs for Sites 1, 2, and 3.

Authorities and Second Appeals

• Stafford Act § 403(a)(3).
•  44 C.F.R. §§ 206.223 (a)(1), 206.225(a)(1,3).
• PAPPG, at 13, 19, 21 57, 58, ; O&O Policy, at 3-5; Work Eligibility Fact Sheet, at 2,3.
• Memorandum on Waiver of PNP Primary Use and Primary Ownership, , at 2.

Headnotes

• For emergency protective measures to be eligible, the applicant is responsible for showing the work is required to eliminate or lessen an immediate threat to lives, public health, and safety resulting from the declared incident. For COVID-19, eligible emergency protective measures performed to safely open and operate a facility may include the purchase and distribution of face masks; cleaning and disinfection and related supplies; and signage to support social distancing.
  • The documentation shows that the cleaning and disinfection services and products, sink, handwashing stations, and face masks facilitated the safe opening and operation of Sites 1-3. The Applicant has not demonstrated costs related to the signage are directly tied to eligible work.

Conclusion

The Applicant demonstrated that the costs for cleaning and disinfection services and products, the rented sink and handwashing stations, and face masks were incurred as emergency protective measures implemented to facilitate the safe opening and operation of eligible facilities at Sites 1, 2, and 3. The Applicant has not demonstrated the costs associated with the signage were related to eligible emergency protective measures implemented in response to COVID-19. Therefore, the appeal is partially granted in the amount of $28,595.95.

Appeal Letter

Appeal Analysis

Background

The COVID-19 pandemic resulted in a disaster declaration on March 20, 2020 for the state of New York, with the incident period of January 20, 2020 to May 11, 2023. Cong Chasdei Lev (Applicant), a Private Nonprofit (PNP) entity that distributes food to food-insecure families, set up temporary food distribution sites at several locations, including Sites 1-3 (at issue on second appeal) from March 6 through September 14, 2020.[1] The Applicant requested Public Assistance (PA) funding for various items at Sites 1-3, including the costs associated with cleaning and disinfection, a sink and hand sanitizer stations, signage materials (i.e., signs, banners, and flags), and face masks.[2] The Applicant provided invoices for the above-referenced costs, a contract summary worksheet describing work completed by the contracted cleaning and disinfection personnel, and rental agreements with the applicable local governments or private entities to use Sites 2 and 3 as food distribution sites; it did not provide any agreements showing a state, local, territorial, or tribal (SLTT) government requested the food distribution. 

On June 8, 2022, FEMA issued a Determination Memorandum, denying the requested funding. FEMA stated that the Applicant’s temporary COVID-19 food distribution program was an emergency service which is usually the responsibility of SLTT governments. FEMA determined that, because the Applicant did not provide an agreement with an SLTT to distribute food on the SLTT’s behalf, the items and associated costs were used for the performance of ineligible work at all Sites.

First Appeal 

On August 3, 2022, the Applicant submitted a first appeal, contending that FEMA incorrectly categorized its food distribution as an emergency service as a result of COVID-19. The Applicant claimed that the costs were eligible for PA funding because: a) it had an established food distribution program before COVID-19; b) its COVID-19 response measures were taken to safely open and operate the Sites; c) it had agreements to operate the Sites; and d) although food distribution was not the primary use, the Sites were nonetheless eligible PNP facilities under a FEMA memorandum that clarified facility eligibility requirements for PNP entities under COVID-19 declarations.[3] On September 27, 2022, the New York State Division of Homeland Security and Emergency Services (Recipient) forwarded the first appeal to FEMA with its support. The Recipient stated that the Applicant’s costs should be eligible under FEMA’s Coronavirus (COVID-19) Pandemic: Safe Opening and Operating Work Eligibility for Public Assistance Policy (O&O Policy).[4] 

On December 29, 2022, FEMA issued a Request for Information (RFI), seeking documentation demonstrating the Applicant owned or operated a food assistance program at Site 1, the cleaning and disinfection service contracts, and a detailed description of the activities performed and items cleaned for all Sites. The Applicant responded on January 23, 2023. It stated that authorization was given for the Applicant to use Site 1 and that the contracted services related to cleaning and disinfecting all access points and surfaces at the sites, including tables, stands, and food boxes and pallets. The Applicant also provided documentation that confirmed the contracted services used sanitizers and disinfectants recommended by the Environmental Protection Agency. Lastly, the Applicant stated that cleaning companies were not writing contracts in the early days of the COVID-19 pandemic and therefore the Applicant only had invoices relating to this work, which it previously provided. 

The FEMA Region 2 Regional Administrator denied the appeal in a decision received by the Applicant on September 13, 2023. FEMA stated that the Applicant provided documentation (i.e., a lease agreement or rental contract) that established it operated eligible facilities at Sites 2 and 3 but had not provided documentation demonstrating it operated an eligible facility at Site 1. Therefore, it found costs associated with Site 1 were ineligible. Regarding the cleaning and disinfection services at Sites 2 and 3, FEMA found the Applicant had not demonstrated the services were necessary and reasonable to respond to the COVID-19 pandemic. FEMA next addressed the costs associated with signage and face masks, finding that the Applicant had not demonstrated what claimed costs were associated only with Sites 2 and 3. Lastly, FEMA found that $625.00 in costs associated with the rented sink and hand sanitizing stations at Site 3 were eligible under FEMA’s O&O Policy, but were below FEMA’s minimum project threshold and therefore not eligible for PA funding.

Second Appeal

On November 8, 2023, the Applicant submitted its second appeal for $36,214.61 in costs associated with Sites 1, 2, and 3.[5] The Applicant reiterates its previously raised arguments and, regarding Site 1, provides a March 25, 2020 email confirming the local government (who owns Site 1) provided authority to the Applicant to operate its food distribution program at the site. The Applicant then explains that volunteers: (1) used face masks as personal protective equipment (PPE); and (2) instructed the public, through a loudspeaker and/or signage, to remain in their cars while volunteers loaded food directly into vehicles’ trunks to ensure contactless distribution. On January 8, 2024, the Recipient forwarded the second appeal to FEMA with its support.[6]

Discussion

FEMA is authorized to provide emergency protective measures to save lives and protect public health and safety.[7] For emergency protective measures to be eligible, the applicant is responsible for showing the work is required to eliminate or lessen an immediate threat to lives, public health, and safety resulting from the declared incident.[8] In response to COVID-19, eligible emergency protective measures include certain measures implemented to facilitate the safe opening and operation of an eligible facility, including cleaning and disinfection, the purchase and distribution of face masks and PPE, and the purchase and installation of signage to support social distancing.[9] In addition, FEMA may provide assistance for communications to disseminate public information regarding health and safety measures and provide warnings about risks and hazards.[10] To be eligible, costs must be directly tied to the performance of eligible work and necessary and reasonable to respond to the COVID-19 pandemic.[11]

Here, the Applicant seeks reimbursement for costs associated with measures implemented to facilitate the safe opening and operation of Sites 1, 2, and 3 to continue its predisaster food distribution program during the COVID-19 pandemic. FEMA determined on first appeal that, based on the documentation provided, the PNP Applicant demonstrated it operated eligible facilities at Sites 2 and 3.[12] On second appeal the Applicant submits documentation establishing that it also operated an eligible facility at Site 1 providing food assistance.

The Applicant has provided invoices, summaries, and explanations that when viewed collectively, demonstrate the specific scope of services performed at the Sites (i.e., cleaning and disinfecting the areas and items associated with its food distribution services). These costs, incurred within the first year of the pandemic, were necessary and reasonable to respond to the COVID-19 pandemic to facilitate the safe opening and operation of Sites 1 through 3 so that the Applicant could continue its predisaster food distribution program.[13] Therefore, the associated cleaning and disinfection costs in the total amount of $24,908.75 for Sites 1 through 3 are eligible.[14] As the above finding regarding the eligibility of the cleaning and disinfection costs results in the project now totaling more than the minimum project threshold, the $625.00 associated with the rented sink and hand sanitizing stations is also eligible for PA funding. In addition, now that the Applicant has demonstrated it operated an eligible facility at Site 1, the costs associated with the face masks are also eligible under FEMA’s O&O Policy. FEMA previously denied $3,062.20 for the face masks based on the Applicant not distinguishing costs related to the eligible facilities at Sites 2 and 3 from the ineligible facility at Site 1. However, because the Applicant has demonstrated all Sites are eligible facilities, FEMA may approve the combined total for face masks used by volunteers at all three Sites.

Lastly, the Applicant states that signage was used at the Sites to ensure that the public stayed in their cars while volunteers loaded food directly into vehicles’ trunks to ensure contactless distribution.  Signage for social distancing purposes may be potentially eligible under FEMA’s O&O Policy. However, the record also demonstrates that certain signage was used for non-social distancing purposes specific to each Site (e.g., providing driving directions). Here, the Applicant has not provided documentation distinguishing potentially eligible opening and operating costs from ineligible costs, to demonstrate what costs, if any, are directly tied to the performance of eligible work. Additionally, the Applicant has not established the signage provided health and safety guidance or warnings for the public related to COVID-19. Therefore, the costs associated with the signage are not related to eligible emergency protective measures implemented in response to COVID-19.

Conclusion

The Applicant demonstrated that the costs for cleaning and disinfection services and products, the rented sink and handwashing stations, and face masks were incurred as emergency protective measures implemented to facilitate the safe opening and operation of eligible facilities at Sites 1, 2, and 3. The Applicant has not demonstrated the costs associated with the signage were related to eligible emergency protective measures implemented in response to COVID-19. Therefore, the appeal is partially granted in the amount of $28,595.95.