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Immediate Threat, Force Account Labor & Equipment Costs
Appeal Brief
Disaster | 4503 |
Applicant | Montgomery County Commission |
Appeal Type | Second |
PA ID# | 101-99101-01 |
PW ID# | GMP 333923 |
Date Signed | 2024-09-23T16:00:00 |
Summary Paragraph
The coronavirus (COVID-19) pandemic resulted in a major disaster declaration in Alabama on March 29, 2020, with an incident period from January 20, 2020, through May 11, 2023. The Montgomery County Commission (Applicant) requested Public Assistance (PA) funding for its incurred costs in responding to COVID-19 for multiple projects. Out of the Applicant’s total reimbursement claim, only the force account labor (FAL) overtime (OT) costs to address the shortages of law enforcement and associated personnel in various areas related to COVID-19 were disputed. FEMA issued a Determination Memorandum denying the FAL OT because the work was unrelated to any eligible emergency work. The Applicant appealed, and stated that because more officers were deployed countywide to enforce the Governor’s Stay-at-Home Order, staff from its Sheriff’s Office were needed to monitor the Alabama Emergency Management Agency’s radio traffic during the COVID-19 emergency and asserted that its detention facility required shift coverage for detention officers quarantined due to COVID-19 exposure. The FEMA Region 4 Regional Administrator denied the appeal for the FAL OT costs, finding that the Applicant had not substantiated through documentation that the claimed costs related to the performance of eligible emergency protective measures. On second appeal, the Applicant submitted a revised FAL OT costs, explaining that the Sheriff’s Office staff monitored the Emergency Operations Centers (EOC) for COVID-19 emergencies, while detention officers handled cleaning, disinfection, and personal protective equipment (PPE) distribution.
Authorities and Second Appeals
- Stafford Act § 403(a)(3).
- 44 C.F.R. §§ 206.223(a)(1), 206.225(a)(3)(i).
- PAPPG, at 19, 21, 24, and 62; O&O Policy, at 4-5.
Headnotes
- In response to COVID-19, eligible emergency protective measures may include operation of EOC to manage, control, and reduce immediate threats to public health and safety and certain specific, limited measures to facilitate the safe opening and operation of eligible facilities, including the purchase and distribution of face masks and PPE, cleaning and disinfection, and screening and temperature scanning.
- The Applicant-provided documentation verified that the EOC was opened specifically to respond to the COVID-19 event, that all EOC-related work occurred between March 2020 and May 2020, and the Sheriff’s Office FAL OT costs were incurred for staff at the EOC to monitor radio traffic and dispatch in response to COVID-19. Therefore, the Sheriff’s Office FAL OT costs are eligible for PA reimbursement.
- The Applicant provided additional documentation on second appeal, establishing that the FAL OT costs for the detention officers are associated with eligible measures in response to COVID-19, such as distributing PPE, cleaning and disinfecting various items in the facility, and screening for COVID-19.
Conclusion
The Applicant has demonstrated that the requested $147,274.17 in FAL OT costs are directly tied to the performance of eligible emergency work. Therefore, this appeal is granted.
Appeal Letter
SENT VIA EMAIL
Jeff Smitherman Melissa G. Peak
Director Director of Risk Management
Alabama Emergency Management Agency Montgomery County Commission
5898 County Road 41 101 South Lawrence Street
Clanton, Alabama 35046-2160 Montgomery, Alabama 36104
Re: Second Appeal – Montgomery County Commission, PA ID: 101-99101-01, FEMA-4503-DR-AL, Grants Manager Project 333923, Immediate Threat, Force Account Labor & Equipment Costs
Dear Jeff Smitherman and Melissa G. Peak:
This is in response to the Alabama Emergency Management Agency’s (Recipient) letter dated July 1, 2024, which transmitted the referenced second appeal on behalf of the Montgomery County Commission (Applicant). The Applicant is appealing the U.S. Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of funding in the amount of $147,274.17 for force account labor (FAL) overtime (OT) due to the coronavirus (COVID-19) pandemic.
As explained in the enclosed analysis, I have determined that the Applicant has demonstrated the requested $147,274.17 in FAL OT costs are directly tied to the performance of eligible emergency work. Therefore, this appeal is granted. By copy of this letter, I am requesting the Regional Administrator to take appropriate action to implement this determination.
This determination is the final decision on this matter pursuant to 44 C.F.R. § 206.206, Appeals.
Sincerely,
/S/
Robert M. Pesapane
Director, Public Assistance
Enclosure
cc: Robert D. Samaan
Regional Administrator
FEMA Region 4
Appeal Analysis
Background
The coronavirus (COVID-19) pandemic resulted in a major disaster declaration for the state of Alabama on March 29, 2020, with an incident period from January 20, 2020, through May 11, 2023. Relevant to this appeal, the Montgomery County Commission (Applicant) requested reimbursement of $508,158.38 in force account labor (FAL) overtime (OT) costs to address the shortages of law enforcement and associated personnel in various areas related to COVID-19.[1] FEMA issued a Determination Memorandum on July 3, 2023, denying the FAL OT. FEMA found the costs were not directly related to performing eligible emergency protective measures.
In a letter dated August 31, 2023, the Applicant submitted its first appeal, requesting that FEMA reconsider its denial of the FAL OT costs. The Applicant claimed that the FAL OT costs for law enforcement were incurred due to the COVID-19 pandemic. The Applicant stated that because more officers were deployed countywide to enforce the Governor’s Stay-at-Home Order, staff from its Sheriff’s Office were needed to monitor the Alabama Emergency Management Agency’s radio traffic during the COVID-19 emergency and asserted that its detention facility required shift coverage for detention officers quarantined due to COVID-19 exposure. On September 5, 2023, the Alabama Emergency Management Agency (Recipient) submitted the appeal to FEMA requesting that FEMA review the Applicant’s documentation.
The Applicant appealed FEMA’s denial in a letter dated June 27, 2024, in which it expands on its first appeal arguments. The Applicant submits a revised FAL OT cost request totaling $147,274.17, which includes $33,176.24 for Sheriff’s Office staff for work performed from March 16, 2020, through May 11, 2020, and $114,097.93 for detention facility staff for work performed from March 17, 2020, through September 14, 2020.
The Applicant explains that the $33,176.24 in requested FAL OT costs associated with the Sheriff’s Office was to staff the emergency operations center (EOC) in response to COVID-19 and that all work was performed from March 2020 until May 2020. The Applicant also explains that the EOC was opened solely in response to COVID-19. On second appeal, the Applicant provides a revised FAL OT spreadsheet that includes the names, titles, dates, hours, pay rates, daily activity logs (ICS-214) with a description of activities performed by the Sheriff’s Office at the EOC, and the Applicant’s pay policy.
The Applicant confirms that the remaining $114,097.93 in requested FAL OT costs for the detention facility staff is associated with work performed from March 2020 until
September 2020, which consisted of distributing personal protective equipment (PPE) to staff and inmates; cleaning and disinfecting door handles, handcuffs, hard surfaces, and inmate units/cells; and screening inmates for COVID-19 symptoms. The Applicant states it performed this work in direct response to the pandemic and to prevent the spread of COVID-19 in its detention facility. On July 1, 2024, the Recipient transmitted the appeal to FEMA.
FEMA is authorized to provide assistance for emergency protective measures to save lives and protect public health and safety.[2] For emergency protective measures to be eligible, the applicant is responsible for showing that the work is required due to an immediate threat resulting from the declared incident.[3] In response to COVID-19, eligible emergency protective measures may include operation of EOC to manage, control, and reduce immediate threats to public health and safety and certain specific, limited measures to facilitate the safe opening and operation of eligible facilities, including the purchase and distribution of face masks and PPE, cleaning and disinfection, and screening and temperature scanning.[4] FEMA may also provide assistance for FAL OT costs that are directly tied to the performance of eligible emergency work and adequately documented.[5]
The Applicant similarly provided additional documentation on second appeal relating to the FAL OT costs for the detention facility staff. The Applicant’s documentation establishes that the FAL OT costs are associated with detention officers performing eligible measures in response to COVID-19 to facilitate the safe opening and operation of the detention facility. Activities included distributing PPE, cleaning and disinfecting various items in the facility (e.g., door handles, handcuffs, various hard surfaces, and inmates’ cells), and screening inmates for COVID-19. The officers performed these duties from March 2020 through September 2020, in direct response to the pandemic and to prevent the future spread of COVID-19. Therefore, the claimed FAL OT costs for detention facility are eligible for PA reimbursement.
Conclusion
The Applicant has demonstrated that the requested $147,274.17 in FAL OT costs are directly tied to the performance of eligible emergency work. Therefore, this appeal is granted.
[1] FEMA has obligated $48,201.43 in costs for Grants Manager Project 333923 that are not associated with the costs at issue on second appeal. Specifically, FEMA approved costs for the purchase of glass partitions, high-efficiency particulate absorbing filters, disposable masks, and temperature screening kiosks, and contracts pertaining to information dissemination.
[2] Robert T. Stafford Disaster Relief and Emergency Assistance Act § 403(a)(3), Title 42, United States Code § 5170b(a)(3) (2018); Title 44 of the Code of Federal Regulations (44 C.F.R.) 206.225(a)(1) (2019).
[3] 44 C.F.R. §§ 206.223(a)(1), 206.225(a)(3)(i); Public Assistance Policy and Program Guide, FP 104-009-2, at 19, 57 (Apr. 1, 2018) [hereinafter PAPPG].
[4] Fact Sheet, Coronavirus (COVID-19) Pandemic: Eligible Emergency Protective Measures, at 1 (Mar. 19, 2020) (Archived); PAPPG, at 62; FEMA Policy 104-21-0003, Coronavirus (COVID-19) Pandemic: Safe Opening and Operation Work Eligible for Public Assistance (Interim) (Version 2), at 4-5 (Sept. 8, 2021).