The Applicant is not eligible for PA funding because it does not own or operate an eligible PNP facility. In addition, the Applicant did not undertake eligible emergency protective measures that it had legal responsibility to perform. Appeal Letter SENT VIA EMAIL Rayana Gonzales Erica Quiroz Deputy Commissioner for Disaster Recovery Programs CAO Alternate Governor’s Authorized Representative AFYA Foundation of America, Inc. New York State Division of Homeland Security and 140 Saw Mill River Road Emergency Services Yonkers, New York 10701 1220 Washington Avenue Building 7A, Floor 4 Albany, New York 12242 Re: Second Appeal – AFYA Foundation of America, Inc., PA ID 119-UTRE9-00, FEMA-4480-DR-NY, Request for Public Assistance – Legal Responsibility, Private Nonprofit Dear Rayana Gonzales and Erica Quiroz: This is in response to the New York State Division of Homeland Security and Emergency Service’s (Recipient) letter dated February 16, 2023, which transmitted the referenced second appeal on behalf of the AFYA Foundation of America, Inc. (Applicant). The Applicant is appealing the U.S. Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of its Request for Public Assistance. As explained in the enclosed analysis, I have determined that the Applicant is not eligible for Public Assistance funding because it does not own or operate an eligible Private Nonprofit facility. In addition, the Applicant did not undertake eligible emergency protective measures that it had legal responsibility to perform. Therefore, this appeal is denied. This determination is the final decision on this matter pursuant to 44 C.F.R. § 206.206, Appeals. Sincerely, /S/ Todd Wells Deputy Director for Policy Public Assistance Division Enclosure cc: David Warrington Regional Administrator FEMA Region 2 Appeal Analysis Background The coronavirus (COVID-19) pandemic resulted in a major disaster declaration for the State of New York on March 20, 2020, with the incident period of January 20, 2020 to May 11, 2023. The AFYA Foundation of America, Inc. (Applicant) submitted a Request for Public Assistance (RPA) as a Private Nonprofit (PNP) seeking reimbursement for emergency protective measures. As its mission, the Applicant leases warehouse space (Facility) that is used to salvage surplus medical supplies and equipment, which are shipped to under-resourced and underserved communities abroad. In response to the COVID-19 pandemic, the Applicant used its Facility to distribute medical supplies and personal protective equipment (PPE) to various healthcare facilities and communities in the United States that were impacted by the pandemic. On February 16, 2022, FEMA issued a Determination Memorandum denying the Applicant’s RPA. FEMA stated that the primary function of the Applicant’s organization was to provide delivery services of medical supplies, equipment, and materials to other organizations. While FEMA determined the Applicant demonstrated it is a PNP based on its tax-exempt status, the Agency found the Applicant did not own or operate an eligible PNP facility that provided an eligible service. First Appeal The Applicant submitted a first appeal on April 15, 2022, contending that it was an eligible PNP operating an eligible PNP facility and additionally stating its work was eligible for Public Assistance (PA). The Applicant stated that its provision of critical PPE that protected the community at large across the United States qualified as health and safety services of a governmental nature. Additionally, the Applicant stated that it provided PPE to other eligible facilities to safely open and operate during COVID-19. The New York State Division of Homeland Security and Emergency Services (Recipient) supported the appeal in a June 10, 2022 letter. The Recipient stated that FEMA waived the “primary use” requirement for PNP facilities during the COVID-19 pandemic and contended that FEMA incorrectly based its decision on the Applicant’s primary purpose instead of determining whether the Applicant performed any eligible services at the Facility. On October 24, 2022, the FEMA Region 2 Regional Administrator denied the first appeal, finding the Applicant did not demonstrate that it owned or operated an eligible PNP facility. FEMA found that the Applicant did not provide health and safety services directly to the general public in a facility that was open to and accessible to members of the general public. FEMA also determined that the Applicant did not provide critical medical or emergency services at its Facility. Second Appeal The Applicant submitted its second appeal in a letter dated December 21, 2022. The Applicant states its Facility is an eligible PNP facility under Title 44 of the Code of Federal Regulations § 206.221(e)(7), because it provides health and safety services of a governmental nature to the general public. It argues that the distribution of PPE during COVID-19 to public hospitals, health centers, and local emergency responders and community leaders meets the requirements to be an eligible PNP facility. The Applicant also states that the first appeal decision did not apply COVID-19 specific policies that demonstrated FEMA: (1) recognized many PNPs would be required to implement emergency protective measures; and (2) intended to allow a broad array of emergency protective measures. On February 16, 2023, the Recipient transmitted the Applicant’s appeal, expressing its support. Discussion Eligible PNP organizations must own or operate an eligible facility.[1] For PNPs, an eligible facility is one that provides an eligible service, which includes education, utilities, emergency, medical, custodial care, and other essential social services.[2] For PNP organizations, eligible emergency protective measures are generally limited to activities associated with preventing damage to an eligible facility and its contents.[3] Measures to protect life, public health, and safety are generally the responsibility of State, Local, Tribal, and Territorial governments.[4] Therefore, PNPs are generally not legally responsible for those services and FEMA does not provide Public Assistance (PA) funding to PNPs for the costs associated with providing those services.[5] When a PNP provides emergency services at the request of, and certified by, the legally responsible entity, FEMA provides PA funding through that governmental entity as the eligible Applicant.[6] In addition, in certain limited circumstances, PNPs that own or operate an eligible medical or custodial facility and perform eligible work, such as providing emergency, medical or custodial care services or patient evacuation, for which they are legally responsible as a result of the COVID-19 incident, may be eligible for direct reimbursement of costs as a PA Applicant.[7] In this case, the Applicant distributed PPE to public hospitals, health centers, and local emergency responders and community leaders. The Applicant claims that these activities served to protect the community-at-large and states this qualifies it as an eligible PNP that owns or operates an eligible facility providing health and safety services of a governmental nature. However, the services the Applicant provided from its Facility do not qualify as essential health services commonly provided by local governments, such as low-income housing or alcohol and drug rehabilitation programs.[8] In addition, the Applicant has not demonstrated that it was legally responsible for the work (e.g., providing emergency, medical or custodial care services for which the Applicant was legally responsible to perform in response to the COVID-19 incident), nor did it enter into an agreement with a government entity to perform emergency services. Therefore, the Applicant has not demonstrated it owns or operates an eligible PNP facility that provides eligible services.[9] Conclusion