In the Matter of CITY OF MIAMI BEACH, FLORIDA

October 24, 2024

CBCA 7878-FEMA

In the Matter of CITY OF MIAMI BEACH, FLORIDA

Freddi Mack, Senior Assistant City Attorney, and Henry J. Hunnefeld, First Assistant

City Attorney, City of Miami Beach, Miami Beach, FL, counsel for Applicant; and Juan

Ramón Mestas, Deputy Chief of Fire Department Operations and Emergency Manager, City

of Miami Beach, Miami Beach, FL, appearing for Applicant.

Stephanie Stachowicz (Twomey), General Counsel, Florida Division of Emergency

Management, Tallahassee, FL, and Deziree Elliott, Senior Attorney, Florida Division of

Emergency Management, Orlando, FL, counsel for Grantee; and Marija Diceviciute, Appeals

Officer, Melissa Shirah, Recovery Bureau Chief, and Melody Cantrell, Recovery Legal

Liaison, Florida Division of Emergency Management, Tallahassee, FL, appearing for

Grantee.

Emanuel Rier Soto, Office of Chief Counsel, Federal Emergency Management

Agency, Department of Homeland Security, Guaynabo, PR, counsel for Federal Emergency

Management Agency.

Before the Arbitration Panel consisting of Board Judges VERGILIO, GOODMAN, and

ZISCHKAU.

ZISCHKAU, Board Judge, writing for the Panel.

The City of Miami Beach, Florida (applicant or city), seeks public assistance (PA)

funds pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act

(Stafford Act), 42 U.S.C. §§ 5121–5207 (2018), for three categories of expenses incurred

during the coronavirus 2019 (COVID-19) pandemic. The Federal Emergency Management

Agency (FEMA) denied PA funding, finding that the work represented “preventative

measures” and not emergency action in direct response to an immediate threat; reflected

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ineligible increased operating costs of providing routine government services; and was not

“specifically related to performing eligible emergency actions.” For the reasons stated

below, we find that the applicant’s work constituted emergency protective measures in direct

response to the COVID-19 pandemic and is eligible for PA funding.

Background

On March 13, 2020, the President declared the pandemic a nationwide emergency.

The President, under the authority of the Stafford Act, issued formal emergency declarations

for every state and territory. Thereafter, each state and territory was granted a major disaster

declaration for the pandemic, including the state of Florida on March 25, 2020. The major

disaster and emergency declarations for the pandemic allowed PA applicants to seek

reimbursement under FEMA’s PA program category B emergency protective measures

directly related to COVID-19. FEMA Fact Sheet, Coronavirus (COVID-19) Pandemic:

Eligible Emergency Protective Measures (Mar. 2020) (COVID-19 Fact Sheet) at 1.

On July 22, 2021, the city applied for reimbursement for: (1) overtime labor and

equipment expenses of its “Mount Sinai Unit” in which fire department personnel operated

out of an emergency operations center in a local hospital to provide dedicated response to

calls involving suspected COVID-19 infections; (2) equipment expenses for its “Committed

Rescue Unit” which used fire department vehicles to respond to medical emergencies

involving suspected COVID-19 cases; and (3) equipment expenses for the “Ocean Rescue

Unit” which assigned fire department lifeguards to patrol beaches and parks to enforce local

ordinances that required social distancing and restricted sizes of groups. The city requested

a total of $814,551.69, which was documented on applicable FEMA forms, written narratives

of each activity, and detailed tables showing the COVID-19-related calls for the Mount Sinai

and rescue units. For the force account equipment (FAE) requests,1 the city used FEMA’s

“Force Account Equipment Record” form to describe the equipment used, the operator, the

unit used to measure reimbursement (i.e., hourly), the FEMA-provided rate per unit, and the

dates on which the equipment was used. For the force account labor (FAL) request, the city

used FEMA’s “Force Account Labor Record” form to identify each employee by name and

position, along with the dates worked in the period and the employee’s regular and overtime

rates. The amount of funds requested from all three units was summarized in FEMA’s “Cost

Summary Roll-Up” form. The city supplemented these forms with additional documentation

consisting of narrative descriptions of each project and logs for the Mount Sinai Unit which

listed the first responder calls conducted by its firefighters by date and time as well as

identifying whether the call was in response to a suspected COVID-19 incident.

1

FEMA refers to an applicant’s personnel as its “force account labor” and to an

applicant’s equipment as “force account equipment.” Public Assistance Program and Policy

Guide (PAPPG) (April 2018) at 23, 26.

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Each of the three projects received some funding through Coronavirus Relief Fund

(CRF) payments from Miami-Dade County as part of the Coronavirus Aid, Relief, and

Economic Security (CARES) Act, Pub. L. No. 116-136, based on a finding that the costs for

the work were necessary due to the public health emergency. The work reflected in the CRF

payments are not duplicated in the present PA request.

Mount Sinai Unit

The Mount Sinai Unit was established in the early months of the pandemic as a

dedicated response unit for calls from persons suspected of having a COVID-19 infection in

order to minimize exposure of first responders to the virus and subsequent exposure to the

general public from first responders. To meet this objective, the team operated out of an

emergency operations center in Mount Sinai Hospital located in the city. Personnel from the

Miami Beach Fire Department staffed the unit twenty-four hours per day, working in

twelve-hour shifts for seven days at a time. The unit’s operations included screening

incoming and outgoing personnel; decontaminating and cleaning transport unit; disinfecting

medical and ancillary equipment; ordering, inventorying, and restocking equipment and

personal protective equipment (PPE); dressing in full PPE for calls; responding to calls

where there was a known or suspected case of COVID-19; evaluating patients and providing

appropriate medical care; transporting patients to a medical facility when required;

decontaminating crew members and equipment after every call; and completing patient care

reports for incidents. The city received CRF payments from Miami-Dade County for regular

(i.e., non-overtime) labor hours for the Mount Sinai Unit. In addition, FEMA previously

granted public assistance funds to the Mount Sinai Unit covering the period January 20

through March 31, 2020, for the same types of costs sought here.2 Thus, this arbitration only

concerns the overtime labor and equipment expenses incurred by that unit from April 1

through May 18, 2020. The city requested reimbursement for overtime hours amounting to

$407,328.79 (1872 hours in April 2020 and 1224 hours in May 2020) and equipment usage

totaling $46,450.04 ($29,648.60 in April 2020 and $16,801.44 in May 2020).

The city states that the overtime hours were incurred for eligible emergency protective

measures to save lives and protect public health and safety, citing FEMA’s Public Assistance

Program and Policy Guide (PAPPG) (April 2018) and COVID-19 Fact Sheet, which provides

a non-exhaustive list of eligible emergency protective measures and authorizing

reimbursement for force account overtime labor for the period January 20 through September

15, 2020. Under the COVID-19 Fact Sheet, emergency protective measures include:

2

The prior public assistance grant by FEMA is not in dispute in this arbitration.

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Management, control, and reduction of immediate threats to public health and

safety:

•

•

•

•

Emergency Operation Center costs

Training specific to the declared event

Disinfection of eligible public facilities

Technical assistance . . . .

Emergency medical care:

•

•

•

•

•

•

Non-deferrable medical treatment of infected persons in a shelter or temporary

medical facility

Related medical facility services and supplies

Temporary medical facilities and/or enhanced medical/hospital capacity . . . .

Use of specialized medical equipment

Medical waste disposal

Emergency medical transport

....

Movement of supplies and persons

....

Reimbursement for state, tribe, territory and/or local government force account

overtime costs

COVID-19 Fact Sheet at 1-2. FEMA argues that the city has not shown that the work was

directed toward COVID-19 patients, that the activities of the unit’s firefighters were routine

and ordinarily performed, and that the costs incurred are, therefore, ineligible increased

operating costs.

We conclude that the overtime hours were incurred for eligible emergency protective

measures that were reasonably taken by the city to reduce immediate threats to public health

and safety for a limited period of time based on the exigencies of the pandemic. The unit

was specifically established to deal with the increasing number of COVID-19 related calls

that the city was receiving, and when even this unit was insufficient to meet the demand, the

city established the Committed Rescue Unit to help handle the surge in COVID-related cases.

The Mount Sinai Unit was dedicated to COVID responses. The work activities listed above

– including triage, responding to calls, treating patients, transporting patients, the cleaning

and decontamination effort, and the equipment and PPE related procedures – were uniquely

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dedicated to responding to the COVID-19 pandemic. Based on the record, we also find that

the force account equipment was dedicated to this COVID-19 unit and used only for

COVID-related transport and triage.

Although not raised in its prior determinations, FEMA now argues that the city has

not supported its request with adequate documentation. In our view, the documentation

adequately supports the applicant’s request. The city submitted the request for PA funding

on FEMA-issued force account labor record forms, showing employee names, date, overtime

hours worked, hourly rates, and unit and total costs. Additionally, the city has provided

textual narratives of its activities and detailed tables of results of the COVID-19 related calls,

showing dates and time, crew, location zones, and symptoms presenting in the patients.

Although FEMA claims that it could not verify if those calls were “actual COVID-19

exposures or infections,” this is not a requirement under FEMA’s COVID-related policies.

See COVID-19 Pandemic: Medical Care Eligible for Public Assistance, FEMA Policy 10421-0004 (Mar. 2021), at 3 (“Work . . . includes both confirmed and suspected cases of

COVID-19.”). The city has also certified that the amounts it seeks does not include work or

costs covered by insurance or assistance from another source. The city submitted the

equipment funding request on FEMA-issued force account equipment record forms, showing

equipment name, operator’s name, equipment code, date, hours, equipment rate, and cost

totals. We find the city’s documentation is sufficient. See PAPPG at 21, 60-61. In sum, we

conclude that the unit’s work was in direct response to the COVID-19 pandemic and

constituted eligible emergency protective measures under both the PAPPG and FEMA’s

COVID-19 policies.

Committed Rescue Unit

The Committed Rescue Unit was created because the volume of suspected COVID-19

calls was greater than the Mount Sinai Unit was able to handle. Committed Rescue Unit

workers, unlike the Mount Sinai Unit workers, were not housed separately and were not paid

overtime hours; rather, the committed rescue team was made up of regular on-duty

firefighters with increased personal protective equipment (PPE) and disinfecting supplies.

This unit operated from April to June 2020. The city received CRF payments from

Miami-Dade County for the labor hours of the Committed Rescue Unit. What is at issue here

is the city’s request for reimbursement for force account equipment associated with this

project through PA funding in the amount of $4056.23.

FEMA raises the same arguments for denying funding for the equipment costs of the

Committed Rescue Unit – namely, the work should not be considered eligible because the

expenses represent merely increased operating costs and the work was inadequately

documented.

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The Committed Rescue Unit’s work was incurred to address the surge in COVID-19

cases from April to June 2020 and its work falls within FEMA’s requirement that the

emergency protective measures save lives and protect public health for a limited period of

time. PAPPG at 60-61. The emergency triage and medical transport directly addressed this

time period’s surge of COVID-19 cases – a surge that required the city to dedicate this unit

(with all of the unique safety protocols and decontamination procedures) to protect public

health and prevent the spread of COVID-19. The requested force account equipment is

adequately supported in the record for the same reasons as discussed above for the Mount

Sinai Unit, and we, therefore, find these items eligible for reimbursement.

Ocean Rescue Unit

The Ocean Rescue Unit assigned fire department-employed lifeguards to provide

security and set up barricades for seven miles of beach in the city’s jurisdiction. During this

time, the lifeguards enforced beach closure, social distancing, and group restriction orders

issued by the state, county, and city. Later, lifeguards were also assigned to patrol city parks

to enforce the same policies. The Ocean Rescue Unit used city-owned vehicles to conduct

its patrols.

The city received CRF payments from Miami-Dade County for the labor hours of this

unit based on a determination that this was work directly tied to responding to the COVID-19

public health emergency. Accordingly, the city is only requesting PA funding for equipment

used to conduct the patrols (i.e., the vehicles), which it would not otherwise have incurred

but for enforcement of the COVID-19-related state and local orders and ordinances. The

amount requested for this unit is $371,224.

FEMA’s general policies permit “[s]ecurity, such as barricades, fencing, or law

enforcement” as emergency protective measures if those measures “[e]liminate or lessen

immediate threats to lives, public health, or safety.” PAPPG at 57–58 (emphasis added).

FEMA’s COVID-19 Fact Sheet also lists “[s]ecurity and law enforcement” as a category of

emergency protective measures that may be eligible for FEMA public assistance if not

funded by the United States Department of Health and Human Services, including the

Centers for Disease Control and Prevention, or other federal agencies.

FEMA argues that the city’s barricades and enforcement of governmental orders and

ordinances regarding group restrictions and social distancing are not eligible activities

because they are not a direct result of the disaster. We do not agree. In early 2020, closure

orders and group restriction ordinances were issued to address the immediate threat of

COVID-19. See PAPPG at 19. These actions “lessen[ed] immediate threats to lives [and]

public health.” Id. at 57. These health emergency actions by the Ocean Rescue Unit were

far different from the rescue activities the unit would normally perform. The labor has

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already been reimbursed based on the COVID-19 emergency. Based on the record, we find

that the requested equipment that was used by the unit in performing its emergency work is

eligible for public assistance.

We have considered FEMA’s other arguments, including that the “intentional or

negligent act[s]” of individuals violating social distancing or beach closure orders are “causes

outside of the declared disaster,” but we conclude that the equipment used by the unit for this

emergency work is eligible for PA funding. Based on our review of the record, we find the

equipment associated with the security and enforcement activities was adequately

documented and directly tied to preventing the spread of COVID-19 and constituted

emergency protective measures consistent with the PAPPG and FEMA’s COVID-19

policies. See PAPPG at 21, 60-61.

Decision

We conclude that the city’s requests for the Mount Sinai Unit, the Committed Rescue

Unit, and the Ocean Rescue Unit are eligible for public assistance.

Jonathan D. Zischkau

JONATHAN D. ZISCHKAU

Board Judge

Joseph A. Vergilio

JOSEPH A. VERGILIO

Board Judge

Allan H. Goodman

ALLAN H. GOODMAN

Board Judge