The Federal Emergency Management Agency (FEMA) has released a new interim policy, Coronavirus (COVID-19) Pandemic: Work Eligible for Public Assistance (Interim Policy), which applies to emergency work performed on or after September 15, 2020. The Interim Policy supersedes FEMA’s previous Fact Sheet, dated March 19, 2020, titled Eligible Emergency Protective Measures, making important changes to FEMA policy and requirements related to the eligibility of work for FEMA Public Assistance (PA) Program reimbursement for the COVID-19 pandemic. The Interim Policy will be updated or revised as required by changes in the status of the pandemic.
This article provides background and a summary of FEMA’s new Interim Policy, discusses its impact on state and local organizations responding to the COVID-19 pandemic, and builds on previous information and analysis provided in our articles Basics of FEMA Public Assistance Program Funding for the COVID-19 Pandemic and FEMA Public Assistance Program: COVID-19 Update.
Background
The nationwide COVID-19 public health emergency makes federal FEMA PA Program funding available for “Category B Emergency Protective Measures,” which are those actions taken before, during and following a disaster to save lives, protect public health and safety, or eliminate an immediate threat of significant damage to improve public health and property.1
Through its PA Program, FEMA provides federal assistance to states, territories, tribes, local governments and certain private nonprofit (PNP) organizations, such as eligible medical facilities, schools and houses of worship, that are engaging in emergency protective measures to respond to the emergency.
Due to the unique nature of the COVID-19 emergency, FEMA has developed incident-specific Fact Sheets and Policy Guidance regarding work that is eligible for FEMA PA Program reimbursement. On March 19, 2020, FEMA released a Fact Sheet providing guidance on eligible emergency protective measures. The March 19 Fact Sheet, discussed in our May 27 FEMA Public Assistance Program: COVID-19 Update, provided examples of those emergency protective measures eligible for FEMA PA Program funding. These included, but were not limited to:
- Management, control and reduction of immediate threats to public health and safety (including disinfection of eligible public facilities).
- Emergency medical care.
- Medical sheltering.
- Household pet sheltering and containment actions related to household pets in accordance with CDC guidelines.
- Purchase and distribution of food, water, ice, medicine and other consumable supplies, as well as personal protective equipment (PPE) and hazardous material suits and movement of supplies and persons.
- Security and law enforcement.
- Search and rescue to locate and recover members of the population requiring assistance.
- Reimbursement for state, tribe, territory and/or local government force account overtime costs.
What does the new Interim Policy change?
The new Interim Policy, issued on September 1, 2020, modifies the guidelines for eligible work and applies to work performed on or after September 15, 2020. The Interim Policy restricts the eligibility of work, materials and supplies that were previously eligible for FEMA PA Program funding.
Of particular note, the Interim Policy makes the following changes related to the eligibility of disinfection and PPE costs:
- Disinfection. FEMA’s prior policy allowed for broad reimbursement of cleaning/disinfecting costs and supplies for all eligible applicants responding to the emergency. The Interim Policy indicates that after September 15, 2020, reimbursement for costs associated with disinfection will only be available in medical care, medical sheltering and other eligible emergency settings.
- PPE. FEMA’s prior policy allowed for broad reimbursement of PPE for all eligible applicants responding to the emergency. The Interim Policy indicates that after September 15, 2020, costs associated with PPE will only be eligible for reimbursement when necessary to conduct eligible emergency work, described further below, including PPE for healthcare workers and first responders.
This policy change will impact nearly all applicants, including schools, houses of worship, transit authorities and nonmedical PNP organizations, many of which submitted FEMA PA Program applications solely for PPE and disinfection costs. State, local and tribal governmental entities will also be impacted.
Pursuant to the Interim Policy, after September 15, 2020, FEMA will provide assistance only for the following emergency protective measures in response to COVID-19-declared events:
- Medical care, in accordance with COVID-19-specific policy or subsequent updates.
- Purchase and distribution of food, in accordance with COVID-19-specific policy or subsequent updates.
- Non-congregate medical sheltering, in accordance with COVID-19-specific policy or subsequent updates.
- Operation of Emergency Operations Centers to direct and coordinate resources and response activities for COVID-19 declarations.
- Communications to disseminate public information regarding health and safety measures and provide warnings about risks and hazards.
- Mass casualty management, including storage of human remains and mass mortuary services, as necessary to manage fatalities caused by COVID-19.
- Purchase and distribution of PPE that is directly related to otherwise eligible emergency protective measures, or is provided to healthcare workers, patients with confirmed or suspected COVID-19 infection, and first responders. It should be noted that funding for stockpiling a supply of eligible PPE is limited to a supply that is projected for up to 60 days from date of purchase, and funding for storing eligible PPE is limited to what is necessary to store a projected 60-day supply.
For the eligible emergency protective measures described above, the Interim Policy indicates that FEMA may provide assistance for the following activities in response to COVID-19-declared events, but only when necessary to perform such eligible work:
- Purchase and distribution of face masks, including cloth facial coverings, provided to persons conducting eligible emergency work and/or in facilities where eligible emergency work is performed.
- Temperature scanning, including the purchase and distribution of handheld temperature measuring devices and associated supplies, in facilities where eligible emergency work is performed.
- Disinfection, in accordance with CDC guidance, in facilities where eligible work is performed, including the purchase and provision of necessary supplies and equipment, and in excess of current operating costs.
- Acquisition and installation of temporary physical barriers, such as plexiglass barriers, in facilities where eligible emergency work is conducted.
- Law enforcement and security.
- Training and technical assistance specific to the declared event.
- Reimbursement for force account overtime costs, costs related to hiring temporary employees and contract labor costs associated with the performance of eligible emergency protective measures.
- Movement of equipment and supplies, including transportation and storage.
- Other work and costs delineated within COVID-19 policies referenced in the Interim Policy.
The Interim Policy also makes an important change related to coordination of funding during the COVID-19 emergency. Significantly, the Interim Policy indicates that PA Program funding should not be considered funding of last resort, as historically was the case for the FEMA PA Program, and advises eligible applicants to consider PA Program funding concurrently with other federal agency programs and services. The Interim Policy provides guidance on how eligible applicants should proceed with respect to coordinating funding and modifying project applications as appropriate, noting that ultimately, PA Program recipients and subrecipients are responsible for ensuring that they do not receive payment for the same item of work twice.
In addition, the Interim Policy indicates that FEMA, in coordination with other federal agencies, has determined that the FEMA PA Program is not the appropriate source of funding for COVID-19 contact tracing and that there are other, more appropriate sources of funding, pointing to the CDC’s Division of Preparedness and Emerging Infections’ Epidemiology and Laboratory Capacity for Prevention and Control of Emerging Infectious Diseases cooperative agreement as a potential source of funding.2
Finally, pursuant to the Interim Policy, FEMA has extended the deadline for completing eligible work (previously set to expire six months after the emergency and disaster declaration dates), without an end date. FEMA will provide at least 30 days’ notice before establishing a new deadline.
What is the impact of the Interim Policy?
It is important to note that the new Interim Policy is not retroactive. For work that was completed prior to September 15, 2020, the FEMA policies and guidelines in place at the time apply. If a project contains work performed in both periods (between the beginning of the incident period and September 15, 2020, and after September 15, 2020), FEMA PA Program applicants must document those costs separately.
In addition to those costs known to be previously ineligible for FEMA PA Program funding, such as loss of revenue, income or donations, this Interim Policy makes clear that costs associated with contact tracing and the reopening of facilities that closed due to the COVID-19 pandemic (for example, schools) will not be eligible for FEMA PA Program reimbursement for work completed after September 15, 2020. Further, disinfection and PPE costs previously deemed eligible for FEMA PA Program funding for eligible applicants will now be limited to the newly defined eligible circumstances and settings.
Eligible applicants, including states, territories, tribes, local governments and PNP organizations, with pending FEMA PA Program applications or those that are considering seeking FEMA PA Program assistance for emergency work in response to the COVID-19 pandemic should review the Interim Policy to determine continued eligibility of those costs for reimbursement.
Please contact Meghan McNamara at mmcnamara@manatt.com with any questions about FEMA funding. FEMA is one of many resources available to help mitigate the financial impact of COVID-19. Manatt’s cross-disciplinary healthcare, corporate and finance team can guide you in identifying, applying for and accessing the funds for which your organization is eligible.
1 44 C.F.R. § 206.225(a)(3).
2 See the CDC Epidemiology and Laboratory Capacity for Prevention and Control of Emerging Infectious Diseases (ELC) cooperative agreement at https://www.cdc.gov/ncezid/dpei/epidemiology-laboratory-capacity.html.