In the Matter of CITY AND COUNTY OF DENVER, COLORADO

February 10, 2025

CBCA 8264-FEMA

In the Matter of CITY AND COUNTY OF DENVER, COLORADO

Wendy Huff Ellard and Yann Kaufman of Baker, Donelson, Bearman, Caldwell &

Berkowitz, PC, Jackson, MS; and Charles Schexnaildre of Baker, Donelson, Bearman,

Caldwell & Berkowitz, PC, Baton Rouge, LA, counsel for Applicant.

Jennifer H. Hunt, Office of the Attorney General, Colorado Division of Homeland

Security and Emergency Management, Ralph L. Carr Colorado Judicial Center, Denver, CO,

counsel for Grantee.

Maureen Dimino, Rebecca J. Otey, and Jasmyn Allen, Office of Chief Counsel,

Federal Emergency Management Agency, Department of Homeland Security, Washington,

DC, counsel for Federal Emergency Management Agency.

Before the Arbitration Panel consisting of Board Judges SHERIDAN, ZISCHKAU, and

VOLK.

SHERIDAN, Board Judge, writing for the Panel.

The applicant, the City and County of Denver, Colorado (City), requested arbitration

pursuant to the Robert T. Stafford Disaster Relief and Emergency Management Act (Stafford

Act), 42 U.S.C. § 5189a(d) (2018), to recover public assistance (PA) funding from the

Federal Emergency Management Agency (FEMA) for the de-densifying of congregate

shelters. FEMA filed a motion to dismiss, deeming the City’s request for arbitration (RFA)

untimely. For the reasons stated below, we deny FEMA’s motion on timeliness and find that

the City is ineligible for PA funding for de-densifying congregate housing. However,

because FEMA and the City agree that certain opening and operations (O&O) costs incurred

by the City in operating these shelters may be eligible for PA funding, the City may provide

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documentation to FEMA seeking to recover costs pursuant to FEMA’s safe opening and

operation policy.

Background

On March 13, 2020, the President issued an emergency declaration for the COVID-19

pandemic. On March 28, 2020, Colorado declared the COVID-19 pandemic a major disaster

(FEMA-4498-DR-CO). RFA at 7. This enabled eligible entities to apply for PA funding

under the Stafford Act and allowed the federal government to reimburse eligible Category

B emergency protective measures (EPM) costs. 42 U.S.C. §§ 5121-5207; Colorado COVID19 Pandemic (DR-4498-CO), https://www.fema.gov/disaster/4498 (last visited Jan. 22,

2025). Colorado’s COVID-19 incident period dated back to January 20, 2020, and continued

through May 11, 2023. RFA at 7.

Prior to the major disaster declaration, the Colorado Department of Public Health and

Environment (CDPHE) established an emergency operations center to respond to the

pandemic, and the City established its own emergency operations center. RFA at 6. The

Colorado governor also issued an executive order declaring Colorado in a state of disaster

emergency, and there was an additional local state of disaster emergency declared in Denver.

Id. at 7. The CDPHE then issued public health order 20-24 which called for a reduction of

in-person nonessential work by fifty percent and extreme social distancing. FEMA’s Exhibit

18.

In the Denver metropolitan area there were over six thousand people without housing

at the start of the pandemic. Applicant’s Exhibit 8. Prior to the pandemic, there were four

homeless shelters in the Denver metropolitan area operated by private non-profits.

Applicant’s Exhibit 25 at 1. There were no facilities operated by the City. Id. In response

to the pandemic and in order to de-densify the existing shelters, the City partnered with the

Denver Rescue Mission and Catholic Charities of Denver to open three shelters: 4600 East

48th Street, the Denver Coliseum, and Elati. Id.

FEMA’s Public Assistance Program and Policy Guide (PAPPG) (Apr. 2018) states,

“FEMA may provide assistance for the rescue, evacuation, and movement of persons;

movement of supplies, and care, shelter, and other essential needs of affected human

populations. Any assistance provided by FEMA in response to an infectious disease event

is done in coordination with the [Centers for Disease Control and Prevention (CDC)].”

PAPPG at 72. On March 19, 2020, FEMA’s COVID-19 fact sheet, Public Assistance: NonCongregate Sheltering Delegation of Authority, outlined guidance allowing FEMA to grant

PA funding for non-congregate sheltering. FEMA’s Exhibit 2. That same day, FEMA

issued guidance on eligible EPMs and explained that in order to be eligible for

reimbursement, all medical sheltering must meet CDC guidelines and that non-congregate

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sheltering specifically is subject to additional FEMA approval, must be deemed “necessary

to address public health needs,” and cannot last longer than the Public Health Emergency.

FEMA’s Exhibit 1. The target population for medical non-congregate sheltering was:

[T]hose who test positive for COVID-19 who do not require hospitalization

but need isolation (including those exiting from hospitals); those who have

been exposed to COVID-19 who do not require hospitalization; and

asymptomatic high-risk individuals needing social distancing as a

precautionary measure, such as people over 65 or with certain underlying

health conditions (respiratory, compromised immunities, chronic disease).

FEMA’s Exhibit 3 at 1-2.

In September 2020, FEMA issued an additional COVID-19 policy which superseded

the March 19, 2020, version. FEMA’s Exhibit 4. This policy dictated that as of

September 15, 2020, only non-congregate medical sheltering would be eligible for PA

funding. Id. at 3. In April 2021, the Denver Department of Public Health and Environment

rescinded a March 2021 order that stated that non-congregate sheltering should be made

available by all reasonable steps necessary. Applicant’s Exhibit 19 at 1. Then, on July 8,

2021, Colorado ended its COVID-19 state of emergency and recovery efforts were

prioritized. Applicant’s Exhibit 23.

FEMA created a project worksheet (PW) for the City’s July 8, 2021, to July 1, 2022,

congregate sheltering PA request in December 2022. FEMA’s Exhibit 29. This was on top

of the $125 million previously obligated to the City by FEMA for sheltering in a previous

PW. FEMA’s Exhibit 8. FEMA issued a determination memorandum in November 2023

and found that the City was not eligible for congregate sheltering costs for this period.

Applicant’s Exhibit 1. On January 8, 2024, the City submitted its first appeal to the recipient.

Applicant’s Exhibit 2. FEMA denied the City’s first appeal on August 21, 2024, and notified

the City via email and through the grants manager portal. FEMA’s Exhibit 5. The City did

not confirm its receipt of the first appeal decision until September 17, 2024. Id. The City

then emailed FEMA to clarify when the clock started to submit the appeal. It asked if the

clock started on August 21, 2024, the day the City received notice of the first appeal

response, or on September 17, 2024, the day the City acknowledged receipt of the first appeal

response. Id. In response, a FEMA official stated that “FEMA will accept” September 17,

2024, as the date that starts the sixty-day clock for the City to submit a second appeal or

request arbitration. Id. Thereafter, the City submitted its RFA on November 15, 2024, to the

Board.

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Discussion

At issue in this decision is whether the City’s RFA was timely and, if timely, whether

the congregate sheltering costs undertaken by the City was an EPM and therefore eligible for

PA funding. For the reasons stated below, the Board finds that the City’s RFA was timely,

but congregate housing was not an eligible EPM, and therefore the City is not entitled to

reimbursement for those costs.

City’s Request for Arbitration Was Timely

The Board accepts timely filed FEMA arbitrations. The Stafford Act instructs that a

decision pertaining to assistance eligibility “may be appealed within 60 days after the date

on which the applicant for such assistance is notified of the award.” 42 U.S.C. § 5189a(a).

In lieu of a second appeal to FEMA, an applicant may request arbitration. Id. § 5189a(d).

Under 44 CFR 206.206(b)(3)(iii)(B)(1) (2024),“[a]n applicant must submit a request for

arbitration within 60 calendar days from the date of the Regional Administrator’s first appeal

decision.”

The City submitted its November 15, 2024, arbitration request more than sixty days

after August 21, 2024, the date of the first appeal decision. While acknowledging that the

first appeal decision was both sent by FEMA and received by the City on August 21, 2024,

the City relies on the email exchange in which a FEMA official stated that “FEMA will

accept” September 17, 2024, as the date when the clock began to run for a second appeal or

arbitration request.

The sixty-day time limit for requesting arbitration is a claim processing rule, not a

jurisdictional bar. See Henderson v. Shinseki, 562 U.S. 428, 435 (2011). FEMA may waive

or extend this deadline. See City of Beaumont, Texas, CBCA 7222-FEMA, 22-1 BCA

¶ 38,018, at 184,632-33. In this case, by stating that it would accept September 17, 2024, as

the date on which the sixty-day clock started, FEMA agreed to extend the City’s deadline for

a second appeal or arbitration request. Therefore, the City timely filed its November 15,

2024, arbitration request within the agreed period.

De-Densifying Congregate Housing is Not Eligible for Public Assistance

The City requested PA for de-densifying congregate housing in response to the

COVID-19 pandemic during the time period of July 8, 2021, to July 1, 2022. To be eligible

for PA, work undertaken must “be required as the result of the emergency or major disaster

event.” 44 CFR 206.223(a)(1). For major disasters that are infectious diseases, the PAPPG

instructs that FEMA’s public assistance response be done in accordance with the CDC.

PAPPG at 72. Following this advice, FEMA issued updated policies in response to changing

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CDC guidance as the pandemic evolved. For the July 8, 2021, to July 1, 2022, time period,

the FEMA guidance in place was Coronavirus (COVID-19) Pandemic: Work Eligible for

Public Assistance (Interim), (FEMA Policy FP 104-009-19). Applicant’s Exhibit 15. This

policy was applicable to work performed in response to the pandemic on or after September

15, 2020. Id. The guidance stated “[i]n accordance with sections 403 and 502 of the Stafford

Act, emergency protective measures necessary to save lives and protect public health and

safety, may be reimbursed under the PA program.” Id. However, the work eligible for EPM

designation was limited. The policy explained that FEMA can only provide assistance for

the listed EPMs. Id. For sheltering, the only eligible type listed was non-congregate

medical. Id.

The City argues that congregate shelters are eligible for PA based on provisions

discussed in the Stafford Act, regulations, and the PAPPG. The City states that FEMA can

reimburse costs associated with preserving health and safety, which includes sheltering. See

42 U.S.C. 5170b(a)(3). The City also cites to the PAPPG, asserting that PA is allowed for

congregate sheltering. PAPPG at 66-67. Despite this, because of FEMA’s September 1,

2020, policy, the Panel does not find this support persuasive. To reiterate, the September

2020 policy superceded the March 2020 policy, which means that as of September 15, 2020,

it was the only effective COVID-19 FEMA policy. See Applicant’s Exhibit 15. This new

policy stated that only non-congregate medical sheltering would be eligible which means that

the blanket “medical sheltering” eligibility in FEMA’s Eligible Emergency Protective

Measures Fact Sheet issued on March 19, 2020, would no longer apply. The Panel must take

into account only the policies in effect during the July 2021 to July 2022 period in question.

The City’s efforts to de-densify homeless shelters by opening additional congregate

shelters is not the same as providing non-congregate sheltering. Non-congregate is defined

as “locations where each individual or household has living space that offers some level of

privacy (e.g., hotels, motels, casinos, dormitories, retreat camps, etc.).” PAPPG at 66. The

City provided no evidence that the three newly-opened shelters matched this criteria.

The City also fails to establish that the sheltering was medical. The City offered

medical transportation to and from hospitals and shelters, and medical services such as

triaging and temperature screens were provided at the shelters. However, the FEMA

guidance on medical non-congregate sheltering instructs that medical sheltering “address[es]

the specific needs directly resulting from this Public Health Emergency.” FEMA’s Exhibit

3. Additionally, the guidance states that “FEMA will consider non-congregate sheltering for

health and medical-related needs, such as isolation and quarantine resulting from the public

health emergency.” Id. Here, the preventative triaging and temperature screens would not

be deemed medical sheltering because if a shelter resident was found to have COVID-19,

they would have been housed elsewhere and quarantined, not placed in a de-densified shelter.

The guidance provided echoes this sentiment by describing the target population for medical

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non-congregate sheltering. Although reasonable minds may differ on the issue, the Panel

does not find the homeless population to be the “at-risk” population that FEMA deems the

target population for non-congregate sheltering. It is acknowledged that some homeless

people may have underlying conditions that makes them eligible for non-congregate medical

sheltering because they are more susceptible to COVID. However, the blanket homeless

population itself is not the vulnerable population that the guidance addresses.

Potential Recovery for Opening and Operations Expenses

Although the Board cannot award funds for the City’s congregate sheltering expenses,

it is acknowledged by both FEMA and the City that certain O&O costs were incurred by

operating these shelters. Costs such as purchase and distribution of face masks, cleaning and

disinfection, purchase and distribution of necessary supplies and equipment in excess of

regularly budgeted costs, COVID-19 diagnostic testing, screening and temperature scanning,

acquisition and installation of temporary physical barriers, and purchase and storage of

personal protective equipment may be eligible for reimbursement according to FEMA’s

Coronavirus (COVID-19) Pandemic: Safe Opening and Operation Work Eligible for Public

Assistance (Interim). FEMA’s Exhibits 6, 41. FEMA argues that the City has not adequately

documented these costs. The City argues that it has made an adequate showing for an

eligibility determination. Considering FEMA’s concession that at least some of the City’s

claimed O&O costs are likely eligible, we return the matter to FEMA for a further evaluation

of the City’s claimed O&O costs. If the City provides adequate documentation to show “the

‘who, what, when, where, why, and how much’ for each item claimed,” PAPPG at 133, it

may be entitled to reimbursement of costs tied to eligible work performed and listed in the

O&O policy.

Decision

The City timely filed its appeal of FEMA’s determination of its PA request; however,

the City is not eligible to recover costs for the de-densification of congregate housing. If the

City provides sufficient documentation to FEMA, it may be entitled to recover the costs for

safe O&O work as outlined in FEMA’s Safe O&O Policy.

Patricia J. Sheridan

PATRICIA J. SHERIDAN

Board Judge

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Jonathan D. Zischkau

JONATHAN D. ZISCHKAU

Board Judge

Daniel B. Volk

DANIEL B. VOLK

Board Judge