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 Brandon Jones Deputy Commissioner for Disaster Recovery Programs HOD-President Alternate Governor’s Authorized Representative The International Mission of New York State Division of Homeland Security and OCUNIGO Emergency Services 41 Madison Avenue 1220 Washington Avenue Suite 2540 Building 7A, Floor 4 New York, New York 10016 Albany, New York 12242 Re: Second Appeal – The International Mission of OCUNIGO, PA ID 061-UY0V0-00, FEMA-4480-DR-NY, Request for Public Assistance, Private Nonprofit, Legal Responsibility Dear Rayana Gonzales and Brandon Jones: This is in response to the New York State Division of Homeland Security and Emergency Service’s (Recipient) letter dated May 23, 2023, which transmitted the referenced second appeal on behalf of the International Mission of OCUNIGO (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/ Robert Grimley Acting Deputy Division Director for Operations 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 an incident period of January 20, 2020, to May 11, 2023.[1] The International Mission of OCUNIGO (Applicant) submitted a Request for Public Assistance (RPA) as a Private Nonprofit (PNP) organization seeking Public Assistance (PA) program funding for emergency protective measures. With its RPA, the Applicant provided a letter from the Internal Revenue Service confirming its status as a tax-exempt PNP organization with a mission to protect and preserve fundamental human rights, social justice, and access to life-sustaining resources. On July 22, 2021, FEMA issued a Determination Memorandum denying the Applicant’s RPA.[2] FEMA stated that the Applicant provided advocacy services and that advocacy groups not directly providing health services are ineligible for PA under FEMA Policy. 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 and that it did not provide an eligible service. First Appeal The Applicant submitted a first appeal on February 22, 2022, asserting that it provided healthcare services through a partnership with Lenox Medical Services/Blue Medical Services PC (Blue Medical Services PC) at two facilities on Lenox Avenue (Lenox Avenue Facilities). The Applicant stated that, in response to the COVID-19 pandemic, it provided additional services at the Lennox Avenue Facilities, including performing COVID-19 screenings, referring COVID-19 positive cases to the hospital, and distributing meal kits and COVID-19 face masks. On April 20, 2022, the New York State Division of Homeland Security and Emergency Services (Recipient) transmitted the Applicant’s first appeal with an analysis that recommended FEMA approve the appeal. On October 6, 2022, FEMA sent the Applicant a request for information (RFI) which sought: (1) a copy of the deed or lease agreement for the Lenox Avenue Facilities; (2) a description of the work the Applicant performed at the facilities; and (3) clarification of the legal relationship between the Applicant and Blue Medical Services PC. In response to FEMA’s RFI, the Applicant stated that it has been sharing offices with Blue Medical Services PC at the Lenox Avenue Facilities since 2017. The Applicant provided its management agreement (MA) with Blue Medical Services PC, which established that Blue Medical Services PC was fully responsible for all dental/medical and other professional services provided at the Lenox Avenue Facilities. The MA also provided that Blue Medical Services PC paid the Applicant a fee to manage the day-to-day administrative and non-professional operations of the practice.[3] The MA emphasized that “in no event shall the [Applicant] be deemed to be involved in the practice of Dentistry or Medicine, Medical and/or Other Professions.”[4] On October 23, 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 stated that there is a distinction between managing a dental and medical facility and providing medical care. FEMA determined the Applicant’s services did not involve the diagnosis or treatment of illness or injury; therefore, FEMA found that the Applicant did not own or operate a facility that provided medical care services or any other eligible service. Second Appeal The Applicant submitted its second appeal in a letter dated March 24, 2023, stating its disagreement with FEMA’s first appeal determination and claiming to provide the following services: (1) Case Management Services; (2) Primary Care; (3) Dental Services; (4) Adult Day Care; (5) Podiatry Services; (6) Pain Management; (7) Mental Health Services; (8) Cardiology Services; (9) Women Health Care Services; and (10) Community Resources: i.e., Emergency Housing, Food and Water, Public Assistance, Disability Assistance, Social Security Benefits Assistance.[5] The Applicant provides a summary of its claimed expenses of $605,000.00 and states it is requesting PA for COVID-19 work.[6]On May 23, 2023, the Recipient transmitted the Applicant’s second appeal and states that FEMA erroneously relied on a false distinction between “managing” a medical practice and “providing” medical care services, asserting that managing a medical practice is not a separate activity but an integral part of providing medical care services in a patient environment. The Recipient states that FEMA policy and regulations recognize that administrative and support facilities are essential to the operation of PNP critical services, including medical services. Discussion Eligible PNP organizations must own or operate an eligible facility.[7] 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.[8] Eligible medical facilities include the administrative and support facilities essential to the operation even if not contiguous.[9] For PNP organizations, eligible emergency protective measures are generally limited to activities associated with preventing damage to an eligible facility and its contents.[10] Measures to protect life, public health, and safety are generally the responsibility of State, Local, Tribal, and Territorial governments.[11] Therefore, PNPs are generally not legally responsible for those services and FEMA does not provide PA funding to PNPs for the costs associated with providing those services.[12] 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.[13] 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.[14] A medical care facility, along with the essential administrative and support facilities, may qualify as an eligible PNP facility when it is owned or operated by an eligible PNP. Here, although the Applicant claims that it operates the Lennox Avenue Facilities, the MA contract establishes that Blue Medical Services PC is responsible for providing medical care services at those locations, with the Applicant explicitly not involved in the practice of dentistry or medicine. Blue Medical Services PC, not the Applicant, operates the medical care facilities by providing the actual medical care services. Blue Medical Services PC is a private corporation that is not an eligible PNP applicant under the PA program, which means the Lenox Avenue Facilities are not eligible PNP facilities.[15] Therefore, the Applicant’s administrative and support services are not essential to an eligible PNP medical facility. In addition, although the Applicant provides a list of other services it states it provided at the Lennox Avenue Facilities, the Applicant has not demonstrated that it provides other eligible services, such as other essential social services, at the Facilities. In addition to the cost of its administrative support services, the Applicant also claims costs for various COVID-19 specific items, such as latex gloves, face masks, plexiglass dividers, antigen tests, and COVID-19 screenings. These types of items are potentially eligible emergency protective measures when the work is the legal responsibility of an eligible applicant.[16] However, in this case, the record does not include documentation to demonstrate that the Applicant was legally responsible for the COVID-19 work or that it entered into an agreement with a government entity to perform emergency protective measures in response to COVID-19. Therefore, the Applicant has not demonstrated it owns or operates an eligible PNP facility that provides eligible services. Conclusion