Immediate Threat

Appeal Brief

Summary Paragraph

The coronavirus (COVID-19) pandemic resulted in a major disaster declaration for the state of Texas with an incident period of January 20, 2020, to May 11, 2023. Harris County (Applicant) requested Public Assistance (PA) funding for costs related to an Alternate Care Site (ACS), which included materials and clothing for security personnel. FEMA issued a Determination Memorandum denying costs for the materials and clothing for security, finding they were not eligible emergency protective measures. The Applicant filed a first appeal asserting that the items purchased for constables that were assigned to provide security at the ACS warm site were reasonable, necessary, and constituted eligible wraparound services’ costs. The FEMA Region 6 Regional Administrator denied $23,006.41 in material and clothing costs. FEMA found the Applicant had not demonstrated they were used to eliminate or lessen an immediate threat from COVID-19, or they were specifically related to eligible emergency protective measures. The Applicant filed a second appeal reiterating first appeal arguments. 

Authorities

• Stafford Act § 403(a)(3).
• 44 C.F.R. § 206.223(a)(1), 206.225(a)
• PAPPG, at 19, 57; Medical Care Policy at 4-5, Work Eligible for Public Assistance Policy.
• FEMA Fact Sheet, ACS Warm Sites, at 1-3, FEMA Fact Sheet, Eligible Emergency Protective Measures at 2.
• ACS Toolkit, at 12, 17.
• Atlanta-Fulton Cnty. Emergency Mgm’t Agency, FEMA-4051-DR-GA, at 3.

Headnotes

• Eligible costs to maintain ACS warm sites may include wraparound services necessary for minimum operational readiness. Critical wraparound actions include ensuring the site is secured with an onsite guard force as a strong law enforcement presence is critical to the initial setup of an ACS. All claimed costs must be reasonable and necessary to effectively respond to the COVID-19 pandemic.
  • The Applicant has not demonstrated the materials or clothing were necessary to eliminate or lessen an immediate threat resulting from COVID-19, were reasonable and necessary to respond to COVID-19 or were necessary for minimum operational readiness of the ACS warm site.

Conclusion

The Applicant has not demonstrated the requested costs were reasonable and necessary to maintain minimum operational readiness of the ACS warm site in response to COVID-19. Therefore, the appeal is denied.

Appeal Letter

Appeal Analysis

Background

The coronavirus (COVID-19) pandemic resulted in a major disaster declaration for the state of Texas with an incident period of January 20, 2020, to May 11, 2023.[1] Relevant to this decision, Harris County (Applicant) requested Public Assistance (PA) funding for costs related to an Alternate Care Site (ACS), including materials and clothing for security personnel. The requested costs included materials such as a recreational vehicle antenna, bulbs for a car dome light, license plate lights, identification badge lanyards, and wristbands. The clothing included such items as apex (i.e., cargo) pants, tactical pants, wool trousers, tactical polo shirts, battle dress uniform shirts, custom embroidered apparel, windbreakers. FEMA prepared Grants Manager Project (GMP) 698836 to document the requested costs.

FEMA issued a Determination Memorandum (DM) on August 3, 2023, denying the costs for materials and clothing for security personnel, finding they were not related to eligible emergency protective measures. FEMA stated they represented ineligible increased operating costs. 

First Appeal

The Applicant filed a first appeal in a letter dated October 2, 2023, requesting FEMA approve $23,006.41 for the materials and clothing, which the Applicant categorized as uniforms. The Applicant explained that it assigned its constables[2] to provide law enforcement and security detail efforts at the ACS. It stated the ACS remained operationally ready but was not needed due to the number of hospitalized COVID-19 patients not reaching the projected amounts, so the ACS was considered a warm site. The Applicant stated the previously denied items were reasonable, necessary, and constituted wraparound service costs that were eligible for an ACS warm site. The Texas Division of Emergency Management (Recipient) transmitted the Applicant’s appeal to FEMA in a letter dated October 13, 2023, in support of the Applicant’s position. 

FEMA Region 6 Regional Administrator, in a letter dated January 23, 2024, denied the request for $23,006.41 in material and clothing costs. FEMA found the Applicant had not demonstrated they were used to eliminate or lessen an immediate threat from COVID-19 or were specifically related to eligible emergency protective measures. 

Second Appeal

The Applicant, in a letter dated March 22, 2024, files a second appeal, reiterating its previously raised arguments. It also states that it was imperative for the constables to wear badges and uniforms specific to the ACS security work to dissuade potential criminals and instill confidence in patients, visitors, and staff that they are protected by security professionals. Lastly, the Applicant states that incurring the costs at issue was more cost-effective than obtaining contracted security guards. The Recipient forwarded the Applicant’s second appeal in a letter dated April 12, 2024, in support of the Applicant’s position.

Discussion

FEMA is authorized to provide assistance for emergency protective measures to save lives and protect public health and safety.^[3] For emergency protective measures to be eligible, the Applicant is responsible for showing the work is required to eliminate or lessen an immediate threat resulting from the declared incident.^[4] In response to COVID-19, eligible emergency protective measures may include work and costs associated with maintaining minimum operational readiness at ACS warm sites.[5] Eligible costs to maintain ACS warm sites may include wraparound services, as defined in the ACS toolkit, necessary for minimum operational readiness.[6] The ACS toolkit notes that critical wraparound actions include ensuring the site is secured with an onsite guard force as a strong law enforcement presence is critical to the initial setup of an ACS.[7] All claimed costs must be reasonable and necessary to effectively respond to the COVID-19 pandemic.[8]

Here, the Applicant assigned its constables to provide security at the ACS warm site. The Applicant states that the constables required uniforms and other materials that clearly identified them as ACS-security to the public. However, neither applicable PA policy related to ACS warm sites, nor the ACS toolkit incorporated by reference, includes reference to such items as being necessary to maintain minimum operational readiness. For example, linen and laundry services; food preparation and delivery; biomedical waste removal, including contaminated items such as personal protective equipment; perimeter fencing; contracted security guards; professional cleaning; and other related services are listed as necessary for minimum operational readiness.[9] Furthermore, the site security plan in the ACS Toolkit does not identify uniform requirements. Additionally, the Applicant has not otherwise demonstrated how the costs for materials (e.g., a recreational vehicle antenna, bulbs for a car dome light, license plate lights, identification badge lanyards, and wristbands) or clothing (e.g., apex pants, tactical pants, wool trousers, tactical polo shirts, battle dress uniform shirts, custom embroidered apparel, and windbreakers), were reasonable and necessary to maintain minimum operational readiness of the ACS warm site.[10] Lastly, FEMA COVID-19 policies likewise do not recognize the purchase of these security uniforms and other materials as related to necessary emergency protective measures in response to the declared incident.[11]

Conclusion

The Applicant has not demonstrated the requested costs were reasonable and necessary to maintain minimum operational readiness of the ACS warm site in response to COVID-19. Therefore, the appeal is denied.