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Immediate Threat
Appeal Brief
Disaster | 4480 |
Applicant | Chenango Valley Central School District |
Appeal Type | Second |
PA ID# | 007-UJZFT-00 |
PW ID# | GMP 334145 |
Date Signed | 2024-06-25T16:00:00 |
Summary Paragraph
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 Applicant requested $19,700.00 for the purchase and delivery of desks. The Applicant stated that the desks were required to allow for social distancing of students as it resumed its pre-kindergarten program and returned to in-person learning. FEMA created Grants Manager Project 334145 to document the Applicant’s claim but denied funding for the project in a Determination Memorandum. FEMA found that the purchase of desks did not fall within the scope of eligible protective measures as identified in FEMA COVID-19 policy. The Applicant submitted a first appeal asserting that it purchased the desks because it was not practical to install temporary barriers on the tables typically shared by multiple students and to comply with the Centers for Disease Control and Prevention’s social distancing recommendation. The FEMA Region 2 Regional Administrator denied the appeal. FEMA determined that the desks were not a temporary measure, nor was the purchase included in FEMA COVID-19 policy as a measure to facilitate the safe opening and operation of an eligible facility. The Applicant submitted a second appeal reiterating its previous assertions.
Authorities
- Stafford Act §§ 403.
- 44 C.F.R. §§ 206.223(a)(1), 206.225(a).
- PAPPG, at 19, 57.
- O&O Policy, at 4-5.
- Susquehanna Valley Central School District, FEMA-DR-4480-NY, at 6-8.
Headnotes
- FEMA may provide assistance to eligible PA applicants for measures implemented to facilitate the safe opening and operation of eligible facilities in response to COVID-19. Eligible measures may include the acquisition and installation of temporary physical barriers to support social distancing.
- The Applicant's purchase of desks for social distancing is not an eligible emergency protective measure implemented to facilitate the safe opening and operation of its facilities under the O&O Policy or a potentially eligible activity listed in any other FEMA COVID-19 policy.
Conclusion
The Applicant has not demonstrated that the purchase and delivery of desks in an eligible emergency protective measure in response to an immediate threat from COVID-19. Therefore, the appeal is denied.
Appeal Letter
SENT VIA EMAIL
Rayana Gonzales
Deputy Commissioner for Recovery Programs,
Alternate Governor’s Authorized Representative
New York State Division of Homeland Security and
Emergency Services
1220 Washington Avenue, Building 7A, Floor 4 Albany, New York 12242
Elizabeth I. Donahue
School Business Executive
Chenango Valley Central School District 221 Chenango Bridge Road
Binghamton, New York 13901
Re: Second Appeal – Chenango Valley Central School District, PA ID: 007-UJZFT-00, FEMA-4480-DR-NY, Grants Manager Project (GMP) 334145, Immediate Threat
Dear Rayana Gonzales and Elizabeth I. Donahue:
This is in response to the New York State Division of Homeland Security and Emergency Services (Recipient) letter dated April 12, 2024, which transmitted the referenced second appeal on behalf of the Chenango Valley Central School District (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 $19,624.80 for the purchase and delivery of desks.
As explained in the enclosed analysis, I have determined that the Applicant has not demonstrated that the purchase and delivery of desks is an eligible emergency protective measure in response to an immediate threat from COVID-19. Therefore, this appeal is denied.
This determination is the final decision on this matter pursuant to 44 C.F.R. § 206.206, Appeals.
Sincerely,
/S/
Robert Pesapane
Division Director
Public Assistance Division
Enclosure
cc: David Warrington
Regional Administrator
FEMA Region 2
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. In response to the pandemic, the Chenango Valley School District (Applicant) purchased 140 single-seating desks on August 25, 2021, to accommodate students returning to in-person learning while adhering to county-mandated social distancing requirements. FEMA prepared Grants Manager Project 334145 to document the Applicant’s claimed costs of $19,700.00.[1] In the project’s narrative, the Applicant explained that pre-pandemic, four students typically shared a multi-seating group table, but this arrangement did not provide for social distancing. The Applicant stated that it purchased the desks to maintain social distancing when it resumed its pre-kindergarten program and no longer offered remote classes. On June 15, 2023, FEMA issued a Determination Memorandum denying the Applicant’s requested costs. FEMA found that the purchase of the desks did not fall within the scope of eligible emergency protective measures as identified in FEMA policy.
First Appeal
On August 7, 2023, the Applicant submitted a first appeal requesting $19,624.82 for the purchase and delivery of the desks. The Applicant asserted that the desks were part of its layered approach to address COVID-19 as it resumed its pre-kindergarten program and returned to in-person learning. The Applicant explained that temporary partitions/barriers could not be installed on the tables typically shared by students prior to COVID-19. It stated that the purchased desks allowed for safe social distancing, as recommended by the Centers for Disease Control and Prevention (CDC) and New York State Education Department (NYSED) and could be re-arranged as the pandemic evolved. The Applicant also asserted that its purchase aligned with the spirit and intent of FEMA COVID-19 policy, encouraging the division of physical spaces within classrooms to promote safe social distancing.
In support of the appeal, the Applicant submitted photographs of the tables used pre-pandemic and the purchased desks, an invoice for the purchase and delivery of the desks, and guidance from the CDC and NYSED recommending universal indoor masking and distancing of at least three feet between students. On October 5, 2023, the New York State Division of Homeland Security and Emergency Services (Recipient) transmitted the first appeal to FEMA expressing its support.
On December 15, 2023, FEMA Region 2 Regional Administrator denied the appeal. FEMA determined that the purchase of the desks was not a temporary measure, nor was it included in FEMA’s Coronavirus (COVID-19) Pandemic: Safe Opening and Operation Work Eligible for Public Assistance (Interim) (Version 2) policy (O&O Policy)[2]as a measure implemented to facilitate the safe opening and operation of an eligible facility.
Second Appeal
On February 12, 2024, the Applicant submitted a second appeal reiterating its previously raised arguments. In addition, the Applicant explained that at the time of the purchase, plastic barriers were not a practical solution for the existing tables, and additionally, the CDC no longer recommended barriers. On April 12, 2024, the Recipient transmitted the second appeal to FEMA expressing its support.
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 due to an immediate threat resulting from the declared incident.[4] In response to COVID-19, eligible emergency protective measures include certain specific, limited measures implemented to facilitate the safe opening and operation of all eligible facilities, including the acquisition and installation of temporary physical barriers, such as plexiglass barriers and screens/dividers, and signage to support social distancing such as floor decals.[5] All work must be done in accordance with CDC guidance or that of an appropriate public health official available at the time the work was completed.[6]
Here, the Applicant claims it purchased the single-person desks to facilitate operation of its school and allow for social distancing between students in accordance with CDC recommendations during the COVID-19 pandemic. The O&O Policy provides for specific, limited emergency protective measures to facilitate the safe opening and operating of eligible facilities. Desks are not considered to be temporary physical barriers and are not otherwise among the list of eligible emergency protective measures in the O&O Policy or any other FEMA COVID-19 policy.[7] Further, while the CDC no longer recommended temporary physical barriers at the time of the Applicant’s work, FEMA finds that the purchase of desks to facilitate social distancing is not an eligible emergency protective measure included under the O&O Policy.[8] Therefore, the purchased desks are ineligible for PA funding.
Conclusion
The Applicant has not demonstrated that the purchase and delivery of desks is an eligible emergency protective measure in response to an immediate threat from COVID-19. Therefore, this appeal is denied.
[1] The initial claim was for $19,700.00, however the invoice only amounted to $19,624.80. The Applicant provided no clarification on the $75.20 difference in costs. See Grants Manager Project (GMP) 334145, Streamlined Project Application, Section III – Cost and Work Status Information; GMP 334145, Documents, Parlor City Furniture - invoice.pdf.
[2] FEMA Policy (FP) 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]
[3] 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 (C.F.R.) § 206.225(a)(1) (2019).
[4] 44 C.F.R. §§ 206.223(a)(l), 206.225(a)(3)(i); Public Assistance Program and Policy Guide, FP 104-009-2, at 19, 57 (Apr. 1, 2018).
[5] O&O, at 4-5.
[6] Id...
[7] See FEMA Second Appeal Analysis, Susquehanna Valley Central School District, FEMA-DR-4480-NY, at 6-7 (Mar. 12, 2024) (denying the purchase of desks and chairs for social distancing because it was not an eligible emergency protective measure listed in the O&O Policy or a potentially eligible activity in any of FEMA’s other COVID-19 policies).
[8] Id., at 8 (citing to FEMA Second Appeal Analysis, Baylor Univ., FEMA-4485-DR-TX, at 4 (Sept. 28, 2023) (finding “the cost of tents, tables, and chairs to create temporary facilities for other services, e.g., dining, are not eligible work under FEMA's COVID-19 policies ... as they did not offer such a physical barrier between students”); FEMA Second Appeal Analysis, Union Springs Cent. Sch. Dist., FEMA-4480-DR-NY, at 3 (June 3, 2022) (finding the applicant's purchase and installation of multiple canopies to separate its students was not eligible as temporary physical barriers to support social distancing under FEMA's policies)).