Appeal Type:
2nd
Report Type:
PW
Appeal Categories:
Time Extension – Appeal
Applicant Name:
Department of Transportation
Disaster Number:
FEMA-4068
DSR:
1091
Date Signed:
Friday, August 5, 2016
PA ID:
000-U03E9-00
Summary/Brief:
Conclusion: Florida’s Department of Transportation’s (Applicant) first appeal was untimely. As such, the Applicant exhausted its appeal rights prior to second appeal. The second appeal would otherwise be denied for failing to comply with 44 C.F.R. § 206.206(a) requiring the applicant to substantiate appeals with documented justification.
Summary Paragraph
From June 23 to July 26, 2013, Tropical Storm Debby flooded roadways in Florida. The Applicant, the Florida Department of Transportation (FDOT), sought $53,709.57 in Public Assistance funding for force account labor and equipment claimed as emergency protective measures performed in FDOT District 2. Upon review of the Applicant’s support documentation for Project Worksheet (PW) 1091, FEMA identified issues impacting eligibility, including vague descriptions of the locations and work performed, as well as costs submitted for work performed in undeclared counties. In January 2013, FEMA determined the Applicant’s entire claim was ineligible and processed PW 1091 for zero dollars. FEMA notified the Florida Division of Emergency Management (Grantee) via email on March 23, 2013 of PW 1091’s ineligibility determination, which was later forwarded to the Applicant. In a first appeal dated June 11, 2013, the Applicant argued FEMA should fund the claim because all of the costs were incurred to complete eligible emergency protective measures necessary to eliminate immediate threats to life and to protect public health and safety. The Grantee transmitted the appeal on November 7, 2014. On August 28, 2015, the FEMA Regional Administrator (RA) found the support documentation insufficient and requested specific, annotated documentation in order to verify that claimed expenditures met eligibility criteria. In an acknowledgment email, the Applicant stated that it did not have additional documentation to provide. In January 2016, the RA denied the appeal because the Grantee forwarded the first appeal more than 16 months after receiving it, in violation of 44 C.F.R. § 206.206(c)(2). In addition, the RA found the Applicant did not provide adequate support documentation to substantiate it performed eligible emergency protective measures. In a second appeal, the Applicant appeals a part of its previously denied claim of $1,751.19 for equipment, arguing that the RA requested documentation that it submitted with the first appeal; and that the documentation supports that multiple variable message boards were used to carryout emergency protective measures in specific locations with clear descriptions. Due to the untimely first appeal, the Applicant exhausted its appeal rights relating to any part of FEMA’s determination that the work and costs claimed in PW 1091 were ineligible at the time it submitted its first appeal. Moreover, although the Applicant reduces the amount of disputed costs sought on second appeal, it appeals the same ineligibility determination previously denied by FEMA in the first appeal decision, and fails to provide documentation specifically requested by the RA. Further, it does not clarify previously supplied information that was questioned by FEMA during PW formulation, the initial first appeal review, and the subsequent first appeal decision. Finally, the Applicant does not dispute the RA’s determination that its first appeal, in its entirety, was late. Thus, even if the Applicant’s appeal rights were preserved prior to second appeal, the second appeal fails to comply with 44 C.F.R. § 206.206(a).
Authorities and Second Appeals
Stafford Act § 423.
44 C.F.R. § 206.206(a), (c)(2).
Headnotes
Stafford Act § 423, as implemented by 44 C.F.R. § 206.206(c)(2), requires the grantee to review and forward an applicant’s appeal, to the RA within 60 days of receipt.
The Grantee forwarded the appeal more than 16 months after receiving it.
Pursuant to 44 C.F.R. § 206.206(a), the burden to substantiate appeals with documented justification falls to the applicant, who must clearly articulate its position in addition to providing supporting documentation.
The Applicant has not demonstrated compliance with § 206.206(a).
Letter:
Bryan W. Koon
Director
State of Florida Division of Emergency Management
2555 Shumard Oaks Boulevard
Tallahassee, Florida 32399-2100
Re: Second Appeal – Department of Transportation, PA ID 000-U03E9-00, FEMA-4068-DR-FL, Project Worksheet (PW) 1091 – Time Extension – Appeal
Dear Mr. Koon:
This is in response to a letter from your office dated April 29, 2016, which transmitted the referenced second appeal on behalf of the Department of Transportation (Applicant). The Applicant is appealing the U.S. Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of $1,751.19 in Public Assistance (PA) funding for force account equipment costs.
As explained in the enclosed analysis, I have determined that because of the untimely first appeal, the Applicant’s appeal rights were exhausted relating to FEMA’s determination that the expenditures claimed in PW 1091 were ineligible. Even if the Applicant’s appeal rights were preserved prior to second appeal, the second appeal would otherwise be denied for failing to comply with 44 C.F.R. § 206.206(a). Accordingly, I am denying the appeal.
Please inform the Applicant of my decision. This determination is the final Agency decision on this matter pursuant to 44 C.F.R. § 206.206, Appeals.
Sincerely,
/s/
Christopher Logan
Acting Director
Public Assistance Division
Enclosure
cc: Gracia Szczech
Regional Administrator
FEMA Region IV
Analysis:
Background
From June 23 to July 26, 2012, Tropical Storm Debby caused extensive flooding and rendered roadways impassable throughout parts of Florida. The Applicant, the Florida Department of Transportation (FDOT), requested Public Assistance (PA) for activities claimed as emergency protective measures completed in FDOT District 2, a service area comprised of 18 counties.[1] FEMA prepared Project Worksheet (PW) 1091 to document the Applicant’s request for $53,709.57 in force account labor, equipment expenditures, and direct administrative costs (DAC) associated with the activities. Upon review of the Applicant’s support documentation for PW 1091, FEMA identified issues impacting eligibility, such as the Applicant submitting costs for work performed in undeclared counties, and further, that its documentation did not clearly define the activities performed by employees nor the locations where they were performed. As a result, in January 2013, FEMA determined the Applicant’s entire request was ineligible for PA reimbursement and processed PW 1091 for zero dollars.[2] On March 26, 2013, in an email sent to inform the Florida Division of Emergency Management (Grantee) of the determination, FEMA explained that funding was denied because the costs claimed could not be tied directly to eligible emergency protective measures.
First Appeal
In a letter dated June 11, 2013, the Applicant appealed FEMA’s determination to deny funding. The Applicant argued that FEMA should allow the full claim of $53,709.57 because the costs were incurred for eligible emergency protective measures conducted to eliminate threats to life and to protect public health and safety. In addition, it addressed FEMA’s statement that the activities performed by employees and associated locations of those activities were not clearly defined. It asserted that costs claimed in PW 1091 are supported by daily maintenance crew reports (Daily Reports), generated from FDOT’s Maintenance Management System (MMS) and provided to FEMA. These reports included descriptions of activities and also show the seven-digit site codes created by FDOT to identify the locations where activities were performed. The Grantee transmitted the appeal to FEMA on November 7, 2014, and asserted it received the appeal from the Applicant within the required 60-day timeframe to appeal.[3]
On August 28, 2015, FEMA Region IV sent a Final Request for Information (Final RFI). The Region explained that the record, including first appeal documentation, did not sufficiently detail eligible response activities.[4] Furthermore, FEMA Region IV found that the information contained in the Daily Reports was inconsistent and as a result, could not validate hours claimed, work site locations, or that the work itself was eligible.[5] Thus, for the purposes of reconciling and validating the entire claim addressed by PW 1091 and requested on appeal, the Region asked the Applicant to submit the following additional documentation: (1) work activity reports annotated with the county, dates, descriptive locations, and the specific eligible emergency work undertaken; (2) equipment usage reports annotated with the county, dates, descriptive locations, miles and/or hours used by work site, and the specific eligible emergency work performed; (3) a summary payroll report listing employee names, pay rates, dates, locations worked, and eligible work performed, and a grand total for all employees performing eligible emergency work that would align to the annotated individual work activity reports; and (4) a summary equipment usage report listing equipment hourly rates, operator(s), dates used, work sites assigned, total charges for each equipment item, and a grand total for all equipment that would align to the annotated individual equipment usage reports. On September 14, 2015, via email, the Applicant responded that it did not have additional information to provide in support of its appeal.
On January 13, 2016, the FEMA Region IV Regional Administrator (RA) denied the appeal because (1) the Grantee failed to forward it within the 60-day timeframe, pursuant to 44 C.F.R. § 206.206(c)(2); and (2) the Applicant’s documentation was inadequate to substantiate that the claimed activities were eligible emergency protective measures and were performed at eligible locations. The RA evaluated the support documentation in the administrative record, including all of the 312 Daily Reports which contained the source information (i.e., descriptions of work activities and where they were performed) supporting the Applicant’s position that the costs claimed in PW 1091 were incurred for eligible work.[6] Overall, regarding work site locations and work descriptions, the RA found that work sites were not clearly identified, descriptions of work did not show how the work alleviated or reduced immediate threats to life or safety (i.e., met eligibility criteria for emergency protective measures); and that some of the work occurred in either undeclared counties or on ineligible Federal Highway Administration (FHWA) Federal-Aid roads. In fact, the RA concluded that only 15 Daily Reports identified activities that “could reasonably be assumed”[7] to constitute eligible emergency protective measures. Furthermore, although she asserted that 9 of the 15 indicated “eligible” equipment usage at a “clearly identified and eligible site,” because the Applicant failed to provide requested documentation “identifying the specific force account equipment used at each location and the associated costs involved” the RA determined that the Applicant’s force account equipment hours were ineligible for funding.[8]
Second Appeal
In a second appeal dated March 31, 2016, the Applicant appeals only $1,751.19 of its original request for equipment costs associated with nine Daily Reports. The Applicant takes issue with the RA’s first appeal decision to uphold the ineligibility of the costs citing the Applicant’s failure to provide documentation specifying the equipment used at each location and corresponding costs. The Applicant asserts that the documentation requested by the RA was uploaded to the Grantee’s grants management system (FloridaPA.org)[9] with its first appeal. In addition, it contends the nine Daily Reports delineate the locations, the corresponding FDOT site code (9870004), equipment numbers, usage, and dates used pertaining to multiple variable message boards (VMBs) that were deployed to carryout emergency protective measures. Further, it points to MMS reports previously uploaded, as providing verification of the VMB equipment rate, the costs incurred for each unit’s individual use, and total costs for all usage. Lastly, the Applicant states that the MMS reports correlate to the nine Daily Reports. It does not appeal the $51,958.38 in other force account charges and DAC that were also affirmed as ineligible in the RA’s decision. It also does not dispute the RA’s decision that the entire first appeal is time-barred. On April 29, 2016, the Grantee forwarded the second appeal to FEMA, recommending approval.
Discussion
Appeal Procedures - Timeliness
The Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act) § 423 provides that: “[a]ny decision regarding eligibility for, from, or amount of assistance under this title may be appealed within 60 days after the date on which the applicant for such assistance is notified of the award or denial of award of such assistance.”[10] Further implementing Stafford Act § 423, Title 44 Code of Federal Regulations (44 C.F.R.) § 206.206(c)(2) requires the grantee to review and forward an applicant’s appeal, together with a written recommendation, to the FEMA RA within a 60-day timeframe triggered by the date the grantee receives the applicant’s appeal.[11] Neither the Stafford Act nor 44 C.F.R. authorize FEMA to grant time extensions for filing appeals.[12]
Although the second appeal is narrowed in scope to target a smaller amount of equipment and thereby lowers the amount sought in relief, the equipment is nonetheless part of the Applicant’s original request addressed by PW 1091, which FEMA subsequently reduced to zero dollars and processed as ineligible. On March 26, 2013, FEMA informed the Grantee of the ineligibility determination and also advised that Federal regulations afforded the Applicant with 60 days to submit an appeal to the Grantee and that upon receipt, the Grantee had 60 days to forward it to FEMA for consideration.[13] The Grantee later transmitted a copy of the PW 1091 ineligibility determination in a separate letter dated April 15, 2013, to inform the Applicant of multiple zero dollar obligations in addition to PW 1091.[14] The Applicant submitted its first appeal for PW 1091 in a letter dated June 11, 2013, which the Grantee forwarded on November 7, 2014, more than 16 months later. Due to the first appeal being submitted after the expiration of the 60-day timeframe required by 44 C.F.R. § 206.206(c)(2), the Applicant consequently exhausted its appeal rights relating to FEMA’s determination that the work and costs claimed in PW 1091 were ineligible. It is also important to note that neither the Applicant nor the Grantee dispute the RA’s determination that the first appeal was late. Regardless, the Applicant’s second appeal would otherwise be denied for failing to comply with other appeal procedures.
Appeal Procedures – Documented Justification
Pursuant to 44 C.F.R. § 206.206(a), an appeal must contain documented justification supporting an applicant’s position.[15] In considering the second appeal with respect to only the eligibility of the equipment charges, FEMA must rely exclusively upon the administrative record. The record establishes that on at least three previous occasions, (i.e., (1) PW 1091 formulation and review, (2) first appeal initial review, and (3) first appeal decision for the same or similar activities claimed), FEMA reviewed the Applicant’s support documentation, including the Daily Reports and other MMS summary reports and found them to be unspecific, generalized, incomplete or otherwise inadequate to substantiate eligibility.[16] With the issuance of the Final RFI, the RA afforded the Applicant with additional time to supplement the record with specifically requested documentation to justify eligibility of the Applicant’s claim. The Applicant elected not to send any further documentation nor clarify how previously supplied documentation supported its assertion of eligibility.
Moreover, upon further review of the two previously-uploaded attachments cited by the Applicant as specifically supporting its second appeal argument,[17] FEMA notes that, again, in its second appeal, the Applicant fails to correlate claimed VMB usage with specific, eligible emergency protective measures and the threats they alleviated nor does it speak to the variations in descriptions for work activities and locations that appear on the nine Daily Reports.[18] In previous reviews of this same information through the issuance of its first appeal decision, FEMA explicitly expressed that the Applicant’s support documentation lack clarity and did not validate overall eligibility. The burden to fully substantiate appeals with “documented justification” falls exclusively to the Applicant[19] and hinges upon the Applicant’s ability to produce not only its own records but to clearly explain how those records should be interpreted as relevant to support the appeal. Here, with its second appeal, the Applicant declines another opportunity to articulate its claim in a way that is understandable. Consequently, the Applicant’s second appeal does not comport with 44 C.F.R. § 206.206(a).
Conclusion
The Grantee forwarded the Applicant’s first appeal more than 16 months after receiving it, in violation of the 60-day timeframe prescribed by 44 C.F.R. § 206.206(c)(2). As the Applicant’s first appeal was untimely its appeal rights were exhausted prior to second appeal. In addition, the Applicant does not substantiate its second appeal with documented justification as required by 44 C.F.R. § 206.206(a). Therefore, the appeal is denied.
[1] Public Information Office About District 2, Fla. Dep’t of Transp., http://www.dot.state.fl.us/publicinformationoffice/moreDOT/districts/dis... (last visited June 22, 2016). FDOT District 2 comprises Alachua, Baker, Bradford, Clay, Columbia, Dixie, Duval, Gilchrist, Hamilton, Lafayette, Levy, Madison, Nassau, Putnam, St. Johns, Suwannee, Taylor, and Union counties in Northeast Florida. Alachua and St. Johns were not declared for Public Assistance for this event.
[2] Project Worksheet 1091, Department of Transportation, Version 0 (Jan. 26, 2013). According to the cost summary record, the Applicant claimed $35,617.51 in force account labor, $13,292.06 in force account equipment, and $4,800.00 in direct administrative costs for a total of $53,709.57.
[3] Letter from Dir., Fla. Div. of Emergency Mgmt., to Acting Reg’l Adm’r, FEMA Region IV, at 1 (Nov. 7, 2014) (stating “[t]he Grantee received the Subgrantee’s notice in a timely manner and recommends that FEMA approve this appeal.”).
[4] Letter from Acting Recovery Div. Dir., FEMA Region IV, to Dir., Fla. Div. of Emergency Mgmt. & Fin. & Admin. Chief, Fla. Dep’t of Transp., at 1 (Aug. 28, 2015) [hereinafter Final RFI].
[5] Id. at 2.
[6] FEMA First Appeal Analysis, Florida Department of Transportation, FEMA-4068-DR-FL, at 3-4 (Jan. 13, 2016) [hereinafter First Appeal Analysis]. The Region reviewed 100 percent of the Applicant’s Daily Reports for a total of 312.
[7] Id. at 4.
[8] Id. at 5.
[9] Fla. Pub. Assistance, http://www.floridaPA.org (last visited June 22, 2016).
[10] The Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988, Pub. L. No. 93-288 § 423, 42 U.S.C. 5189(a) (2007).
[11] 44 C.F.R. § 206.206(c)(2) (2011).
[12] FEMA Second Appeal Analysis, Florida Department of Transportation, FEMA-1785-DR-FL, at 3 (July 9, 2016); FEMA Second Appeal Analysis, City of Lake Mary, FEMA-1539-DR-FL, at 4 (Aug. 31, 2015); and FEMA Second Appeal Analysis, Public Health Trust of Miami-Dade County, FEMA-3259-EM-FL, at 2 (Mar. 27, 2015).
[13] E-mail from Emergency Mgmt. Program Specialist, FEMA Region IV, to Pub. Assistance Officer, Fla. Div. of Emergency Mgmt. (Mar. 26, 2013, 15:41 EST).
[14] Letter from Dir., Fla. Div. of Emergency Mgmt., to Project Cost Mgmt. Coordinator, Fla. Dep’t of Transp. (Apr. 15, 2013) (enclosing FEMA’s March 26, 2013, ineligibility notification sent to the Grantee). Note that the Grantee’s letter provides notice of zero dollar obligations for multiple PWs, including PW 1091.
[15] 44 C.F.R. § 206.206(a).
[16] FEMA First Appeal Analysis, Florida Department of Transportation, Project Worksheet 1071, FEMA-4068-DR-FL, at 1-6 (Feb. 10, 2016) [hereinafter First Appeal Analysis, PW 1071] (denying the Applicant’s request for equipment used in FDOT District 2 to complete some of the same activities claimed in PW 1091, because, among other reasons, the first appeal was late pursuant to 44 C.F.R. § 206.206(c)(2) and the Applicant’s supporting documentation was found inadequate to verify the eligibility of work claimed as emergency protective measures and to overturn FEMA’s original denial of funding and resultant zero dollar obligation for PW 1071). As discussed in FEMA’s First Appeal Analysis, PW 1071, the Applicant also submitted copies of daily crew maintenance reports to substantiate the appeal but declined to provide additional information requested by FEMA to address the daily reports’ inadequacy regarding work site locations and descriptions of emergency work. In addition, FEMA established that the Applicant submitted duplicates of numerous daily reports cited as support for PW 1071, to substantiate separate Category B claims addressed in PWs 1087 and 1091; and E-mail from Representative, Fla. Dep’t of Transp., to [unidentified representatives], at 1 (Apr. 19, 2016, 12:19 EST) (stating that FDOT would not file a second appeal of PW 1071).
[17] Letter from Emergency Mgmt. Coordinator-Fin., Fla. Dep’t of Transp., to Fla. Div. of Emergency Mgmt., at 1 (Mar. 31, 2016) (referencing excerpts of previously-provided first appeal attachments named “Equipment DTBMH02-CC-294-Equipment-Part 5” and “DTBMH02-CC-294-Equipment-Part 1”) [hereinafter Equipment Part 5 and Equipment Part 1]. Complete copies of both attachments also appear in EMMIE for PW 1091. Equipment Part 5 contains the nine Daily Maintenance Crew Reports [hereinafter Daily Reports] in dispute for the dates of June 27, June 28, June 29, June 30, July 1, July 3, July 7, July 8, and July 9, 2012.
[18] Equipment Part 5, Daily Reports (June 28 and 29, 2012) (denoting equipment activity for FDOT site codes 0280017 and 987004). The hand-written statement appearing next to site code 987004 briefly states “emergency traffic control devices due to TS Debby,” which identifies a possibly-eligible activity but does not specify an exact location nor identify the traffic control devices as variable message boards. The Applicant has not addressed any of the Daily Reports’ deficiencies cited herein; Equipment Part 1, MMS Report FY 2012-2013. Equipment usage reported on Daily Report (July 3, 2012) is not accounted for on the MMS summary. The Applicant had the opportunity to clarify documentation but declined.
[19] 44 C.F.R. § 206.206(a). FEMA Second Appeal Analysis, Village of Waterford, FEMA-4020-DR-NY, at 4 (Sep. 4, 2014) (“The Applicant has the burden of substantiating its claims…”).