Immediate Threat

Appeal Brief

Summary Paragraph

The COVID-19 pandemic resulted in a major disaster declaration for the State of Florida on March 25, 2020, with an incident period of January 20, 2020, to May 11, 2023. The City of Miami (Applicant) set up a COVID-19 testing and vaccination site and requested FEMA Public Assistance (PA) funding for incurred costs for contracted tow truck services to move vehicles from the site, crowd control barriers, traffic cones, and forklifts. FEMA prepared Grants Manager Project 333591 to document the claimed $547,088.37. FEMA issued a Determination Memorandum, granting the request for request for everything but the contracted tow truck services, which resulted in a denial of  $201,337.50. FEMA found that the costs were not an eligible emergency protective measure. The Applicant filed a first appeal for $201,337.50. The Applicant stated that the costs were associated with eligible emergency protective measures, necessary for the safe and effective operation of the COVID-19 site, and that its operating costs included wraparound services, such as traffic control provided by the tow trucks. The FEMA Region 4 Regional Administrator denied the appeal, finding that the Applicant did not demonstrate that the contracted tow truck services constituted an eligible emergency protective measure, nor that the services were necessary for medical care under the PA program. The Applicant submitted a second appeal, reiterating its first appeal arguments, and contending the denial was inconsistent with FEMA’s COVID-related policy and contrary to health and safety guidance that was in effect at the time of cost incurrence.

Authorities

• Stafford Act § 403(a)(3)(B).
• 44 C.F.R. §§ 206.223(a)(1), 206.225(a).
• FP 104-21-0004, at 2, 5-7, 15.
• ACS Toolkit, at 12-13

Headnotes

• Eligible medical care and associated costs for the COVID-19 pandemic refer to assistance to support the provision of medical care, including eligible facility, equipment, supplies, staffing, and wraparound services. Eligible work for certain COVID-19 facilities and work also includes mobilization and demobilization costs associated with setting up and closing the COVID-19 temporary or expanded medical facility and transporting COVID-19 vaccinations and individuals with limited mobility to and from vaccination sites.
  • The Applicant has not demonstrated that its contracted tow truck services were used for any of the above eligible activities.

Conclusion

The Applicant has not demonstrated that its contracted tow truck services constitute an eligible emergency protective measure performed in response to COVID-19. Therefore, the appeal is denied.

Appeal Letter

Appeal Analysis

Background

The coronavirus (COVID-19) pandemic resulted in a Presidentially declared major disaster on March 25, 2020, for the State of Florida for the incident period of January 20, 2020 until 

May 23, 2023. The City of Miami (Applicant) requested reimbursement of $547,088.37 under FEMA’s Public Assistance (PA) program for contracted tow trucks services, crowd control barriers, traffic cones, and forklifts used in response to COVID-19 at vaccination and testing sites from March 25, 2020, through May 26, 2021. The tow trucks in question were utilized at the Applicant’s testing and vaccination site at Marlins Park, a facility the Applicant selected due to its ability to handle a significant volume of traffic. The Applicant explained that the tow trucks were on standby to be available when cars needed to be towed from the site, to keep the testing and vaccination lines flowing. On February 16, 2022, FEMA issued a Determination Memorandum (DM), denying $201,337.50 for the contracted towing services.[1] In its DM, FEMA stated that the tow trucks were not a mobilization cost associated with setting up the vaccination site, not used for transporting COVID-19 vaccinations, and not used to transport individuals with limited mobility to and from the site. Accordingly, FEMA found that the contracted tow truck  service costs were an increased operating expense and not an eligible medical care measure under FEMA Coronavirus (COVID-19) Pandemic: Medical Care Eligible for Public Assistance (Medical Care Policy).[2]

First Appeal 

On April 15, 2022, the Applicant submitted a first appeal, requesting $201,337.50 for the contracted tow truck services, stating they were necessary for the safe and effective operation of a COVID-19 vaccination and testing site. The Applicant explained that it was operating an eligible temporary medical facility, and that its operating costs included wraparound services, such as traffic control, safety, and security. Additionally, the Applicant stated that the tow trucks were used to assist in saving lives at testing points and for vaccine distribution through the maintenance of safe and effective ingress and egress of vehicles at the site. The Applicant provided incident action logs,[3] validation summary, and multiple COVID-19 action plans. On June 3, 2022, the Florida Division of Emergency Management (Recipient) transmitted the appeal to FEMA, recommending approval. 

On June 5, 2023, the FEMA Region 4 Regional Administrator denied the appeal, finding that the Applicant did not demonstrate that the contracted tow truck services were an eligible emergency protective measure under FEMA’s Medical Care Policy. Specifically, FEMA stated that the tow truck services were neither used for mobilization of the site at Marlins Park nor for transporting COVID-19 vaccinations or individuals. FEMA determined the services were used as a preventative measure and did not address an immediate threat.

Second Appeal

On August 2, 2023, the Applicant submitted a second appeal, reiterating its first appeal arguments. The Applicant emphasizes that: (1) the site was operated as an Alternate Care Site (ACS) in accordance with FEMA’s Medical Care Policy and related guidance; (2) other FEMA and Centers for Disease Control guidance directly mention traffic access/control and traffic flow as key planning considerations;[4] (3) it regularly evaluated the cost-effectiveness and the ongoing need of the staging of tow trucks at the site and made adjustments in adherence with PA general cost eligibility requirements; and (4) the testing and vaccination site provided the eligible emergency protective measure and the tow trucks were a component, as a wraparound service, of the overall activity. On October 2, 2023, the Recipient transmitted the Applicant’s second appeal to FEMA, with a letter recommending approval.

Discussion

FEMA may provide assistance for emergency protective measures to save lives and protect public health and safety.[5] Eligible emergency work may include the provision of emergency medical care when required as a direct result of the disaster.[6]Eligible medical care and associated costs for the COVID-19 pandemic refer to assistance to support the provision of medical care, including eligible facility, equipment, supplies, staffing, and wraparound services.[7] Eligible wraparound services include, but are not limited to, the following: 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 such as establishing safe evacuation routes and separate egress/ingress points for patients, staff, and emergency medical service responders.[8] Mobilization and demobilization costs associated with setting up and closing the COVID-19 temporary or expanded medical facility may also be eligible.[9] For COVID-19 vaccinations, eligible work includes transporting COVID-19 vaccinations and individuals with limited mobility to and from vaccination sites.[10]

Here, the Applicant stated that it used contracted tow trucks on standby at Marlins Park to patrol the COVID-19 testing and vaccination site and move vehicles to keep the testing and vaccination lines flowing. The Applicant also stated that the tow trucks were a component of the overall testing and vaccination work and as such, the tow trucks provided eligible wraparound services. However, the incident activity logs provided in the administrative record for this appeal demonstrate that the tow trucks patrolled the site and performed routine services such as fixing flat tires, jump starting and/or providing fuel or other fluids to stalled vehicles, and moving vehicles in the garage and lots. The Applicant has not produced documentation that shows that the tow truck services were are associated with the type of eligible wraparound work outlined in FEMA’s Medical Care Policy. For example, the Applicant has not demonstrated that the tow truck services established safe evacuation routes or separate ingress or egress points for patients and staff and emergency medical responders. In addition, the Applicant has not demonstrated the tow truck services were used for mobilization (setting up) or demobilization (closing) of the site, transporting individuals with limited mobility to and from the site, or transporting COVID-19 vaccines. Finally, the Federal Healthcare Resilience Task ForceACS Toolkit, cited in FEMA’s Medical Care Policy does not include tow trucks or similar vehicles to provide services to support the operation of an ACS. Therefore, based on the above, the $201,337.50 associated with contracted tow truck services is not eligible for PA reimbursement.

Conclusion

The Applicant has not demonstrated that its contracted tow truck services constitute an eligible emergency protective measure performed in response to COVID-19. Therefore, the appeal is denied.