CBCA 8060-FEMA, 8061-FEMA, 8062-FEMA, 8063-FEMA, 8064-FEMA

February 18, 2025

CBCA 8060-FEMA, 8061-FEMA, 8062-FEMA, 8063-FEMA, 8064-FEMA

In the Matter of UNITYPOINT HEALTH

Wendy Huff Ellard of Baker, Donelson, Bearman, Caldwell & Berkowitz, PC,

Jackson, MS; and Danielle M. Aymond of Baker, Donelson, Bearman, Caldwell &

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

Dennis T. Harper, Alternate Governor’s Authorized Representative, Iowa Homeland

Security and Emergency Management Department, Windsor Heights, IA, appearing for

Grantee.

Maureen Dimino, 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 RUSSELL, GOODMAN, and

O’ROURKE.

O’ROURKE, Board Judge, writing for the Panel.

UnityPoint Health is a nonprofit healthcare system with subsidiary hospitals and

medical programs in Iowa, southern Wisconsin, and western Illinois. The applicants, four

hospitals and one home-based program within the UnityPoint network in Iowa, submitted

separate requests for public assistance (RPA) to combat the COVID-19 pandemic. The

following year, the applicants withdrew their RPAs because they did not have costs ready

to submit for reimbursement at that time. The applicants resubmitted their RPAs in

September 2022, three months after the revised deadline for submitting RPAs.

FEMA denied all five RPAs for two reasons: (1) the applicants failed to submit their

respective RPAs through the grants portal, rendering them ineligible applicants, and (2) the

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RPAs were submitted after the deadline, and there were no extenuating circumstances that

warranted an extension for any of the RPAs. UnityPoint sought arbitration under 42 U.S.C.

§ 5189a(d) (2018) after the Federal Emergency Management Agency (FEMA) denied its

RPAs.

For the reasons explained below, we conclude that the requirement to submit an RPA

through the grants portal does not defeat a finding of eligibility as to applicant status. We

further determine that none of the five applicants demonstrated extenuating circumstances

to warrant extending the deadline for submitting their RPAs.

Background

Congress enacted the Robert T. Stafford Disaster Relief and Emergency Assistance

Act (Stafford Act), 42 U.S.C. §§ 5121-5207, to provide “assistance by the Federal

Government to State and local governments in carrying out their responsibilities to alleviate

the suffering and damage which result from [major] disasters.” Id. § 5121(b). The Stafford

Act is “designed to assist the efforts of [eligible entities affected by major disasters] in

expediting the rendering of aid, assistance, and emergency services, and the reconstruction

and rehabilitation of devastated areas.” Id. § 5121(a)(2).

On March 13, 2020, the President declared the COVID-19 pandemic a nationwide

emergency and issued emergency and disaster declarations for each state and territory under

the Stafford Act. For the State of Iowa, FEMA issued DR-4483-IA on March 23, 2020,

which authorized the State “to allocate from funds available for these purposes such amounts

as you find necessary for Federal disaster assistance and administrative expenses.” The

declaration also authorized the State “to provide assistance for emergency protective

measures (category B), including direct Federal assistance, under the public assistance

program, throughout the State.” The declaration limited public assistance (PA) funding to

seventy-five percent of total eligible costs since such funding is intended to be supplemental.

Eight days later, on March 21, 2020, FEMA issued a memorandum to its regional

administrators concerning the deadline for submission of RPAs for reimbursement of eligible

COVID-19 costs. The memorandum stated that enforcement of the regulatory requirement

to submit RPAs within thirty days of the declaration of a disaster was “not appropriate” in

light of the “unprecedented nature of the national emergency declaration.” For that reason,

the deadline would “remain open for the duration of the Public Health Emergency, as

declared by the Secretary of the U.S. Department of Health and Human Services, unless an

earlier deadline is deemed appropriate by the Assistant Administrator, Recovery

Directorate.” Request for Arbitration (RFA) (CBCA 8060-FEMA), Exhibit 4.

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Within the next thirty days, the applicants submitted individual RPAs in response to

the disaster declaration. However, none of the applicants had costs ready to submit for

reimbursement at that time. Moreover, the Government initiated phased funding relief for

COVID-19 to specified medical providers, so it was unclear if PA funding would even be

needed at that point. At the same time, FEMA instructed the applicants to ensure that no

duplication of funding occurred from government sources, including RPAs. For all of these

reasons, the applicants withdrew their RPAs in May and June 2021, more than one year after

they submitted them. FEMA and the State reassured the applicants that they could withdraw

their RPAs and resubmit them later when and if costs arose that required reimbursement.

On March 30, 2022, two years after the COVID-19 disaster declaration, FEMA issued

new guidance altering the incident period for RPAs and moved the submission deadline up

to July 1, 2022. Two days later, FEMA publicly announced the new submission deadline.

One week after that, FEMA published the new deadline on its website, fema.gov. FEMA

also restated the new deadline in FEMA Policy 104-22-0002, issued on June 12 and

published on June 13, 2022. Using these dates as guidance, the procedural history of the five

UnityPoint locations are described in the following pages.

8060-FEMA: UnityPoint Dubuque-Finley

UnityPoint Dubuque-Finley (Dubuque-Finley) is a private nonprofit (PNP) hospital

in Dubuque, Iowa, which operates under its parent organization, UnityPoint Health. In April

2020, Dubuque-Finley submitted an RPA through the FEMA grants portal seeking public

assistance, and FEMA accepted the RPA. In May 2021, Dubuque-Finley withdrew its RPA,

deeming it unnecessary because it had other funding sources. Nearly a year-and-a-half later,

however, in September 2022, Dubuque-Finley submitted a written request to the recipient,

the Iowa Department of Homeland Security and Emergency Management (IDHSEM), to ask

FEMA to extend the deadline for submitting an RPA. Dubuque-Finley claimed that it could

not submit a response before the deadline because Dubuque-Finley lost its existing funding

sources and its finances were hurt by significant COVID-19-related workforce shortages,

patient surges, supply disruptions, rising expenses, and increased labor costs. DubuqueFinley also claimed that it was confused about FEMA’s COVID-19-related policies.

The recipient forwarded the extension request to FEMA, which FEMA denied a few

months later. FEMA based its denial on a lack of justification for the extension, explaining

that Dubuque-Finley failed to point to any extenuating circumstances beyond its control that

caused it to miss the revised deadline. In January 2023, Dubuque-Finley appealed FEMA’s

determination and filed a supplemental statement in February 2023. In January 2024, FEMA

again denied Dubuque-Finley’s request based on the same rationale that Dubuque-Finley had

not shown there were extenuating circumstances for its late RPA submission. In response

to this second denial, Dubuque-Finley filed its RFA with the Board on March 29, 2024.

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8061-FEMA: UnityPoint Trinity-Fort Dodge

UnityPoint Trinity-Fort Dodge (Trinity-Fort Dodge) is a PNP hospital in Fort Dodge,

Iowa. In April 2020, Trinity-Fort Dodge submitted an RPA to the recipient, IDHSEM, and

the recipient placed it on hold. In December 2020, the recipient withdrew the RPA instead

of submitting it to FEMA. Nearly two years after the withdrawal, in September 2022,

Trinity-Fort Dodge submitted a letter to the recipient, requesting an extension to the RPA

submission deadline. The recipient forwarded the request to FEMA. The letter explained

how Trinity-Fort Dodge had previously submitted an RPA to FEMA but, after withdrawing

it, Trinity-Fort Dodge experienced decreased funding sources. Trinity-Fort Dodge indicated

that its finances were hurt by workforce shortages, patient surges, supply disruptions, rising

expenses, and increased labor costs. Trinity-Fort Dodge also claimed that it was confused

about FEMA’s policies surrounding the requirements for submitting an RPA under the

guidelines accompanying the revised deadline.

In November 2022, FEMA denied Trinity-Fort Dodge’s extension request, claiming

that there were no extenuating circumstances beyond the control of Trinity-Fort Dodge or

the recipient that would justify an extension. In January 2023, Trinity-Fort Dodge filed an

appeal, and, in March 2023, it submitted a supplemental statement. FEMA again denied

Trinity-Fort Dodge’s request, asserting that extenuating circumstances were not

demonstrated to justify the late RPA. On March 29, 2024, Trinity-Fort Dodge filed its RFA

with the Board.

8062-FEMA: UnityPoint Trinity-Muscatine

UnityPoint Trinity-Muscatine (Trinity-Muscatine) is a PNP hospital in Muscatine,

Iowa. In April 2020, Trinity-Muscatine submitted its RPA for COVID-19 assistance via the

grants portal to the recipient, IDHSEM, which then submitted it to FEMA. In May 2021,

Trinity-Muscatine withdrew its RPA. The following year, in September 2022, TrinityMuscatine submitted a letter to the recipient, asking FEMA for an extension to submit its

RPA. The extension request was submitted outside of the grants portal. Trinity-Muscatine

claimed that it had never submitted an RPA for FEMA’s assistance prior to this time and

stated that, because of the pandemic, Trinity-Muscatine faced obstacles such as financial

stress, loss of funding, supply disruptions, increased security costs, patient surges, and

workforce shortages that precluded it from submitting a request. Trinity-Muscatine’s

extension request was forwarded to FEMA, and, in November 2022, FEMA denied the

request due to a lack of extenuating circumstances beyond Trinity-Muscatine or the

recipient’s control. In January 2023, Trinity-Muscatine appealed FEMA’s decision and, in

March 2023, added a supplemental statement. As with the other RPAs from UnityPoint

subsidiaries, FEMA denied the appeal and again determined that there were no extenuating

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circumstances that warranted a filing extension. On March 29, 2024, Trinity-Muscatine filed

its RFA with the Board.

8063-FEMA: UnityPoint Grinnell

UnityPoint Grinnell (Grinnell), a hospital in Grinnell, Iowa, submitted an RPA to the

recipient in April 2020. The recipient, IDHSEM, forwarded the RPA to FEMA, which

FEMA accepted. About one year later, however, Grinnell withdrew the RPA. In September

2022, Grinnell submitted a written request to the recipient to extend the time for an RPA

submission but did not submit an RPA through the grants portal. Grinnell explained in its

request for an extension that it had experienced funding challenges and that due to the

pandemic its finances were impacted by surges in patient care, rising expenses, increased

labor costs, workforce shortages, and various supply chain issues. Grinnell also claimed to

be confused by FEMA’s COVID-19 policies.

Grinnell’s request for an extension was forwarded to FEMA, and, in November 2022,

FEMA denied Grinnell’s request for an extension due to insufficient justification for an

extension. Grinnell appealed FEMA’s determination in January 2023 and submitted a

supplemental statement in March 2023. In January 2024, FEMA once again denied

Grinnell’s request based on a lack of extenuating circumstances warranting a late RPA

submission. On March 29, 2024, Grinnell filed its RFA with the Board.

8064-FEMA: UnityPoint At Home

UnityPoint At Home (At Home) is a PNP entity that provides home care services to

patients in Urbandale, Iowa. In April 2020, At Home used the grants portal to submit an

RPA for COVID-19 to the recipient, IDHSEM. The recipient forwarded the RPA to FEMA,

and FEMA accepted it. In June 2021, At Home withdrew its RPA, asserting that it had “n[o]

covid-19 related expenses at [that] time.” However, in September 2022, At Home submitted

a written request to the recipient requesting that the recipient ask FEMA for an extension of

time for At Home to submit an RPA. At Home claimed that it did not meet the FEMA

deadline because its finances were impacted by COVID-19-related surges in patient care,

rising expenses, workforce shortages, increased labor costs, and supply disruptions. At

Home also stated that it was confused by FEMA’s policies.

In November 2022, FEMA denied At Home’s request due to a lack of extenuating

circumstances justifying an extension. In January 2023, At Home appealed FEMA’s

decision, and, in March 2023, it provided a supplemental statement. FEMA denied At

Home’s request in January 2024, concluding that there were no extenuating circumstances

to justify extending the submission deadline. On March 29, 2024, At Home filed an RFA

with the Board.

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In response to each of the five RFAs, FEMA argues that the applicants failed to

submit the RPAs through the grants portal, invalidating their status as “applicants.” In

addition, FEMA argues that the applicants’ RFAs were untimely and that no, or insufficient,

extenuating circumstances were offered by the applicants to justify the late submissions. For

the purposes of efficiency and consistent with the parties’ request, the panel addresses all five

RFAs in a single decision but makes findings and determinations on each individual RFA.

Discussion

The Board decides these arbitrations pursuant to section 423 of the Stafford Act.

42 U.S.C. § 5189a(d). In arbitration matters, the panel reviews an applicant’s eligibility for

PA de novo. Monroe County, Florida, CBCA 6716-FEMA, 20-1 BCA ¶ 37,688, at 182,980.

This review extends to determinations of issues of fact. Harris County, Texas, CBCA

6909-FEMA, 21-1 BCA ¶ 37,754, at 183,268 (2020).

These RFAs present two issues. The first issue concerns the subsidiaries’ eligibility

as applicants since their secondary RPAs were not submitted through the grants portal.

Second, if we find that the subsidiaries are eligible applicants, we must decide whether each

subsidiary met the requirements for extending the RPA submission deadline. For the reasons

discussed below, we determine that all five subsidiaries are eligible applicants. We further

determine, however, that none of the applicants demonstrated extenuating circumstances for

extending the RPA submission deadline.

I.

All Five UnityPoint Locations are Eligible Applicants

At issue is whether the five UnityPoint subsidiaries are “applicants” for the purpose

of requesting PA. An applicant is “a State agency, local government, or eligible private

nonprofit organization . . . submitting an application to the recipient for assistance under the

State’s grant.” 44 CFR 206.201(a) (2024).1 To submit an RPA, a state, local, territorial, or

tribal entity—or PNP—must first submit an RPA to FEMA through the recipient, IDHSEM.

Public Assistance Program and Policy Guide (PAPPG) (Apr. 2018) at 130.2 In FEMA’s

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Grinnell indicated in both its initial RPA submission and its re-submission in

September 2022 that it was not a PNP. Statutory guidance and the PAPPG indicate that only

PNPs or state, local, territorial, tribal, and local entities are eligible for FEMA public

assistance funds. However, since UnityPoint indicates that it is a PNP hospital system,

Grinnell will be considered an applicant for the purpose of this analysis.

2

The April 2018 PAPPG applies to this proceeding because this version is

applicable to major disasters declared on or after August 23, 2017, but before June 1, 2020.

See PAPPG (June 2020) at 12; PAPPG (Apr. 2018) at vii. Therefore, the PAPPG issued in

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March 21, 2020, memorandum, FEMA instructed that all RPAs must be submitted through

the FEMA grants portal. However, as previously mentioned, the Stafford Act allows federal

agencies to modify administrative requirements if strict adherence to those requirements is

hindered as “a result of the major disaster.” 42 U.S.C. § 5141.

Board Rule 613 (48 CFR 6106.613) states that CBCA arbitration decisions are not

precedential. Past decisions can be instructive, however. See City of St. Cloud, Florida,

CBCA 7952-FEMA, et al., 24-1 BCA ¶ 38,559, at 187,408. In Housing Preservation Trust,

Inc., the entity, Housing Preservation Trust (HPT), was found not to be an applicant because

it had “not submitted any RPAs . . . but only [sought] a determination that the deadline to

file, which [had] long since passed, should [have been] extended.” CBCA 7517-FEMA, 23-1

BCA ¶ 38,267, at 185,807. HPT never submitted an RPA for three of the four housing

entities that it claimed to oversee, and the proposed RPA for one of the entities that HPT

oversaw was incomplete. Id. As a consequence, the panel determined that the request for

a deadline extension was a pre-application matter, that HPT was not an applicant under

42 U.S.C. § 5189a(d)(1), and that the Board therefore was not authorized to resolve an

eligibility dispute. Id.

By contrast, in Dameron Hospital Association, CBCA 8052-FEMA, 24-1 BCA

¶ 38,604, at 187,661, the panel concluded that the RPA, although not submitted through the

grants portal, was sufficient to deem Dameron an “applicant.” Dameron Hospital reiterates

that, under section 301 of the Stafford Act, federal agencies can modify administrative

conditions if the conditions cannot be met because of the major disaster. Id. at 187,660-661;

see also 42 U.S.C. § 5141.

Here, Dubuque-Finley, Trinity-Muscatine, Grinnell, and At Home submitted RPAs

via the grants portal in April 2020 and subsequently withdrew them in May or June 2021.

Trinity-Fort Dodge never submitted an RPA to FEMA but instead submitted an RPA to the

recipient which was then placed on hold. Exhibit 8 (CBCA 8061-FEMA); in December

2020, the RPA was withdrawn before it was submitted to FEMA. Although the RPAs for

all five locations were withdrawn, all five subsequently resubmitted letters to request RPA

time extensions, although the letters were submitted outside of the grants portal.

Accompanying the letters were the applicants’ RPAs. Because all five locations included a

formal RPA along with the request letter, the case at hand is analogous to Dameron Hospital,

the reasoning of which we find instructive. We conclude that all five entities are applicants

for purposes of their RPAs.

June 2020 does not apply to this decision.

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No Extenuating Circumstances Warranted an Extension of the Submission Deadline

Having concluded that the five UnityPoint locations are “applicants” for purposes of

requests for PA, we turn to the second issue presented: whether the five UnityPoint locations

facing extenuating circumstances outside of their control warranted an extension of the

deadline to submit their RPAs. The FEMA Regional Administrator may extend the deadline

for RPA submissions “when the recipient justifies and makes a request in writing. The

justification must be based on extenuating circumstances beyond the recipient’s or

subrecipient’s control.” 44 CFR 206.202(f)(2). FEMA can “extend the deadline for

submitting an RPA if the [r]ecipient submits a request in writing with justification based on

extenuating circumstances beyond the Applicant’s or Recipient’s control.” PAPPG at 130.

UnityPoint claims that it was only provided two weeks’ notice to submit an RPA and

that the hospitals faced extenuating circumstances which warrant an extension to submit an

RPA. UnityPoint asserts that the extenuating circumstances included: (1) lack of funding

from other sources; (2) COVID-19 surges; (3) staffing shortages; (4) supply chain difficulties

and increased costs; (5) changing FEMA policies; (6) impacted financial margins; and

(7) increased labor and supply costs. While we recognize the substantial operational and cost

impacts that COVID-19 had on the applicants in this case, the record does not establish a

basis for overturning FEMA’s decision not to extend the applicants’ time to submit RPAs.

UnityPoint claims that the applicants only received two weeks’ notice of the updated

RPA submittal deadline. Yet FEMA released guidance on April 1, 2022, notifying the

applicants and the recipients that July 1, 2022, was the revised deadline to submit RPAs

pertaining to COVID-19. Additionally, FEMA publicly posted this information on its

website and YouTube channel and advertised this deadline via a webinar. At the start of the

pandemic, Regional Administrators were notified that the RPAs would remain open

throughout the duration of the public health emergency with the caveat that the FEMA

Assistant Administrator could set an earlier deadline if it was deemed appropriate so long as

thirty days’ notice was provided.

The applicants were afforded ninety days’ notice of the revised deadline. The

information was available and widely disseminated. Neither confusion nor a lack of

knowledge are adequate justification for extending the RPA submission deadline. “Lack of

knowledge (or lack of communication by the responsible grantee) of the deadline for

submitting an RPA is not an excuse that requires an extension of time.” Vista on 5th Corp.,

CBCA 7691-FEMA, 23-1 BCA ¶ 38,356, at 186,269; see also 44 CFR 206.202(f).

Although the applicants point to numerous other FEMA decisions where extensions

were granted, we do not find their reasoning persuasive under these facts. The applicants

previously demonstrated that they knew how to submit RPAs, they learned of the revised

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deadline before it passed, and they were part of a hospital system (UnityPoint) that timely

submitted more than a dozen RPAs at various times during the pandemic. The applicants’

RPAs were untimely. The applicants have not demonstrated extenuating circumstances

sufficient to require FEMA to extend the time for them to submit their RPAs.

Decision

The applicants’ RPAs were untimely submitted, and the applicants have not

demonstrated extenuating circumstances sufficient to justify an extension of the deadline to

submit their RPAs.

Kathleen J. O’Rourke

KATHLEEN J. O’ROURKE

Board Judge

Beverly M. Russell

BEVERLY M. RUSSELL

Board Judge

Allan H. Goodman

ALLAN H. GOODMAN

Board Judge