Immediate Threat

Appeal Brief

Summary Paragraph

As a result of the coronavirus pandemic (COVID-19), the ARC - NYC (New York City Chapter, NYSARC, Inc.) (Applicant) requested $114,160.20 in Public Assistance for overtime labor costs for one employee who performed various duties related to response activities. After reviewing documentation provided by the Applicant, including labor summaries describing the specific job duties of the employee, FEMA denied the project in a Determination Memorandum, finding that the claimed costs were not tied to the performance of eligible emergency protective measures. The Applicant appealed, reducing the claimed costs to $106,005.90, and stating that, while the work performed by the employee was administrative in nature, it directly saved lives and reduced the threat of COVID-19 by directing and coordinating response activities. FEMA denied the appeal, finding that the work performed by the employee consisted of ineligible administrative tasks and was not tied to eligible emergency protective measures under COVID-19 policies. The Applicant submitted its second appeal, reiterating first appeal arguments. 

Authorities

• Stafford Act § Stafford Act §§ 403, 502.
• 44 C.F.R. §§ 206.206(a), 206.225(a).
• PAPPG, at 21, 24, 133.
• Work Eligible for Public Assistance Policy, at 3-5; FEMA Fact Sheet, Eligible Emergency Protective Measures, at 1-2; FEMA Fact Sheet, Private Nonprofit Organizations, at 1-2, O&O Policy, at 4-5.
• Emory Healthcare Inc., FEMA-4501-GA, at 3-4.  

Headnotes

• To be eligible, costs must be directly tied to the performance of eligible work.  
  • The Applicant has not demonstrated that the claimed overtime hours are directly tied to the performance of eligible emergency protective measures. 

Conclusion

FEMA finds the Applicant has not demonstrated that the overtime costs at issue are directly tied to the performance of eligible emergency protective measures. Therefore, this appeal is denied.

Appeal Letter

Appeal Analysis

Background

The coronavirus (COVID-19) pandemic resulted in a major disaster declaration for the state of New York on March 20, 2020, with an incident period of January 20, 2020, to May 11, 2023. The ARC - NYC (New York City Chapter, NYSARC, Inc.) (Applicant), a private nonprofit (PNP) that operates residential services for individuals with disabilities, requested $114,160.20 for overtime labor costs associated with one employee who performed administrative tasks during the pandemic.^[1] In support of its claim, the Applicant submitted various documentation, including a cost summary spreadsheet and project narrative. The Applicant claimed that, in response to COVID-19, it established a “COVID Response Team” (CRT) which the Applicant identified as an Emergency Operations Center (EOC). The Applicant stated that the purpose of the CRT was to implement measures to reduce immediate threats of widespread COVID-19 transmission and to protect the health and safety of populations served within its facilities. The Applicant provided a list of the duties performed by its employee and claimed that the employee’s focus and time was entirely on managing the response to COVID-19. FEMA prepared Grants Manager Project (GMP) 679904 to document the Applicant’s claim. In a Determination Memorandum issued on March 29, 2024, FEMA denied the Applicant’s claim, finding that the submitted labor costs were not tied to the performance of eligible emergency protective measures. 

First Appeal

In a letter dated May 17, 2024, the Applicant submitted a first appeal, stating that the amount in dispute was $106,005.90.^[2] The Applicant reiterated that its claimed overtime labor costs were for one employee who was assigned to the CRT between March 14, 2020, and January 1, 2021, and who focused and spent time entirely on directing and coordinating the Applicant’s resources and response activities for the COVID-19 pandemic. The Applicant provided the following list of COVID-19 duties performed by its employee: (1) reviewed documentation, guidance documents, regulations, and executive orders related to COVID-19 and provided summaries to the response team; (2) developed and issued new guidance memoranda for staff and families regarding infection control, health screening, exposures, isolation, signs and symptoms, travel, and return to work protocols; (3) participated in response team meetings; (4) organized and led COVID-19 Tracking Team; (5) assisted residential team with developing information regarding exposures/isolation and established communications to share with families; and (6) participated in meetings regarding COVID-19 tracking, testing, vaccinations, clusters, etc. 

The Applicant stated that, while the work the employee performed was administrative in nature, it directly saved lives and reduced the threat of COVID-19 by directing and coordinating resources and response activities for the organization. The Applicant asserted that, under FEMA’s policies, the use of its EOC to direct and coordinate resources and response activities was eligible because it was associated with eligible work. Specifically, the Applicant stated that its CRT/EOC directed and coordinated resources and response activities associated with the following work that directly saved lives and reduced the threat of COVID-19: (1) distribution of personal protective equipment (PPE); (2) cleaning/disinfecting facilities; (3) COVID-19 diagnostic testing, screening and temperature scanning for admittance to facilities; (4) social distancing measures within facilities; (5) communications to disseminate public information regarding health and safetymeasures and provide warnings about risks and hazards; (6) development of training and technical assistance specific to COVID-19 that was provided to staff about safe operating procedures and medical care; and (7) providing medical care to individuals supported within the intermediate care and individualized residential alternative facilities. The Applicant explained that it claimed the costs associated with these activities in other projects for this disaster.[3] In a letter dated July 16, 2024, the New York State Division of Homeland Security and Emergency Services (Recipient) forwarded the Applicant’s appeal expressing its support. 

In a letter dated October 15, 2024, the FEMA Region 2 Regional Administrator denied the Applicant’s appeal. FEMA found the claimed work constituted ineligible administrative activities, rather than eligible emergency protective measures under applicable COVID-19 policies. FEMA further found that the Applicant’s CRT was not consistent with establishment of an EOC because it did not involve multiple agencies and multidisciplinary activities. FEMA stated that the Applicant’s CRT was more appropriately characterized as an organization-specific operations center because its activities were primarily focused on directing the Applicant’s own assets and operations.

Second Appeal

In a letter dated December 4, 2024, the Applicant submitted a second appeal confirming that the amount in dispute is $106,005.90 and reiterating first appeal arguments. The Applicant provides a chart with the general description of the various duties performed by the employee, the specific costs claimed for each task, and the corresponding sections of FEMA COVID-19 policies that the Applicant asserts are applicable to the work performed.^[4] The Applicant disagrees with FEMA’s finding that its CRT does not meet the definition of an EOC and provides a list of its CRT members to show that it utilized a multidisciplinary approach, including personnel specializing in medical, facilities, information technology, and finance. The Applicant states that its CRT directed and coordinated resources and response activities associated with eligible emergency protective measures. In a letter dated January 31, 2025, the Recipient forwarded the Applicant’s appeal with it support.

Discussion

FEMA is authorized to provide assistance for emergency protective measures to save lives and protect public health and safety.^[5] In response to COVID-19, FEMA may provide assistance for operation of EOCs to direct and coordinate resources and response activities for COVID-19, communications of general health and safety information to the public, and training and technical assistance specific to the declared event.[6] Other eligible emergency protective measures include certain specific, limited measures implemented to facilitate the safe opening and operation of eligible facilities, including: (1) the purchase and distribution of face masks and PPE; (2) cleaning and disinfection; (3) COVID-19 diagnostic testing, screening, and temperature scanning; and (4) the acquisition and installation of temporary physical barriers, such as plexiglass barriers and screens/dividers, and signage to support social distancing.^[7] FEMA may provide assistance for force account labor overtime costs that are directly tied to the performance of eligible work and adequately documented.^[8] It is the applicant’s responsibility to provide documentation to substantiate its claim as eligible and to clearly explain how those records support its appeal.^[9]

Here, the Applicant requests $106,005.90 for overtime labor costs of one employee, and claims that, while the employee’s job duties were administrative in nature, the employee directed and coordinated resources and response activities associated with eligible emergency protective measures, which is consistent with an EOC. FEMA provided funding to the Applicant in other projects for eligible emergency protective measures associated with the safe opening and operation of its facilities. However, the administrative tasks of the employee whose costs are the subject of this appeal are not consistent with directing and coordinating resources and response activities as part of EOC operations and are not otherwise directly tied to the performance of the eligible work. In other words, while the employee may have supported the CRT, the employee did not distribute PPE, clean/disinfect facilities, conduct COVID-19 testing, screening and temperature scans, or install measures to support social distancing. Additionally, while the employee may have provided communications to the CRT staff and residents within the Applicant’s facilities, they did not provide communications of general health and safety information to the public. Likewise, the list of tasks performed by the employee does not include training and technical assistance.

Additionally, the Applicant’s documentation does not tie the claimed labor hours to the work it claims is eligible. While the Applicant’s cost summary spreadsheet provides the total overtime hours for the employee with a notation that links the hours to the general description of the tasks performed by the employee, the spreadsheet does not contain details describing specific items of work, nor does it associate any of the costs with the specific time spent on a specific task.^[10] Rather, the Applicant provides the average overtime hours spent on the general administrative tasks. In any event, none of the administrative tasks conducted by the employee are eligible emergency protective measures under FEMA’s O&O Policy, or any of FEMA’s other COVID-19 polices. Therefore, the Applicant did not provide documentation to substantiate its claim as eligible.^[11] 

Conclusion

The Applicant has not demonstrated that the overtime costs at issue are directly tied to the performance of eligible emergency protective measures. Therefore, this appeal is denied.