FEMA finds that the costs incurred for providing disposable items for food distribution are not related to an eligible emergency protective measure in response to COVID-19; rather they are ineligible increased operating costs. Appeal Letter Rayana Gonzales Deputy Commissioner for Disaster Recovery Programs, Alternate Governor’s Authorized Representative New York State Division of Homeland Security and Emergency Services 1220 Washington Avenue, Building 7A, Floor 4 Albany, New York 12242 Stuart Almer President & CEO Fay J. Lindner Residence (Gurwin Jewish) 58 Hauppauge Road Commack, New York 11725-4403 Re: Second Appeal – Fay J. Lindner Residences (Gurwin Jewish), PA ID: 103-UHU0J-00, FEMA,4480-DR-NY, Grants Manager Project (GMP) 711424, Immediate Threat Dear Rayana Gonzales and Stuart Almer: This is in response to New York State Division of Homeland Security and Emergency Services’(Recipient) letter dated March 27, 2025, which transmitted the referenced second appeal on behalf of Fay J. Lindner (Gurwin Jewish) (Applicant). The Applicant is appealing the U.S. Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of $112,998.45 for the purchase of disposable items used to prepare and distribute food to its residents. As explained in the enclosed analysis, I have determined that the costs incurred for providing disposable items for food distribution are not related to an eligible emergency protective measure in response to COVID-19; rather they are ineligible increased operating costs. 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 M. Pesapane Director, Public Assistance Enclosure cc: Andrew D’Amora Acting 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. The Fay J. Lindner Residences (Gurwin Jewish) (Applicant), a private nonprofit (PNP) assisted living facility, requested $112,998.45 in Public Assistance (PA) funding for the purchase of disposable items (e.g., serving dishes, utensils, cups and plates) used to prepare and deliver individual meals to residents from March 1, 2020, to June 30, 2021. FEMA created Grants Manager Project (GMP) 711424 on March 30, 2023, to document claimed costs. On May 17, 2024, FEMA denied the Applicant’s PA funding request in a determination memorandum. FEMA found the Applicant’s claim was not tied to the performance of eligible emergency protective measures, nor were the items claimed listed in the Coronavirus (COVID-19) Pandemic: Safe Opening and Operation Work Eligible for Public Assistance policy (O&O Policy) as eligible for the safe opening and operation of an eligible facility.[1] First Appeal On July 12, 2024, the Applicant filed a first appeal for $112,998.45. The Applicant stated that it started using disposable meal items to protect residents, staff, vendors, and visitors from exposure to COVID-19 and, therefore, the purchase of those items was an eligible emergency protective measure. The Applicant contends that its claim is eligible for PA funding under the Coronavirus (COVID-19) Pandemic: Purchase and Distribution of Food Eligible for Public Assistance policy (Food Policy).[2] The Applicant included guidance from FEMA, the New York State Department of Health (NYSDOH), the World Health Organization (WHO), and the Centers for Disease Control and Prevention (CDC) which it claimed supported changing its kitchen and cafeteria items to disposable products. It also included its Residency Agreement, which outlines its responsibilities to its residents and specifically points to the requirement to provide three full meals and a snack daily.[3] On September 10, 2024, the New York State Division of Homeland Security and Emergency Services (Recipient) forwarded the appeal to FEMA, with its supporting recommendation, contending the Applicant has a legal responsibility to operate safely while continuing to provide its services. On December 6, 2024, the FEMA Region 2 Regional Administrator denied the appeal. FEMA found that the Applicant had not demonstrated that it is legally responsible for preparing and distributing food as an eligible emergency protective measure. Additionally, FEMA found that food distribution to its residents was part of the Applicant’s routine operations, and the claimed disposable items were not eligible items listed in the O&O policy. Second Appeal The Applicant filed a second appeal on January 30, 2025, reiterating its first appeal arguments. The Applicant also argues that the O&O Policy clearly conflicts with COVID-19 mandates and information published by FEMA, NYSDOH, CDC, and WHO, to the extent that the policy omits the items on appeal. The Recipient transmitted the second appeal in a letter dated March 27, 2025, supporting the Applicant’s position. Discussion FEMA is authorized to provide emergency protective measures to save lives and protect public health and safety.[4] For emergency protective measures to be eligible, the Applicant is responsible for showing the work is required due to an immediate threat resulting from the declared incident.[5]Under the COVID-19 declarations, FEMA may provide assistance for the purchase and distribution of food under limited circumstances.[6] In the Food Policy, FEMA established indicators that demonstrate the need for food distribution as an emergency protective measure.[7] The indicators that demonstrate the need for food distribution are: (1) reduced mobility of people in need due to government-imposed restrictions, including “stay-at-home” orders which prevent certain populations from accessing food; (2) marked increase or atypical demand for feeding resources; and (3) disruptions to the typical food supply chain within a given jurisdiction.[8]Increased costs of operating a facility or providing a service are generally not eligible, even when directly related to the incident.[9] However, short-term increased costs that are directly related to accomplishing specific emergency health and safety tasks may be eligible, if, among other requirements, the services provided at a facility are specifically related to eligible emergency protective measures.[10] FEMA may only provide assistance in response to COVID-19 declared events in accordance with a FEMA COVID-19 specific policy.[11] Here, the Applicant states that it used disposable items to distribute meals to residents during the COVID-19 incident period. In this case, the Applicant provided meals to its senior population prior to the onset of the COVID-19 public health emergency and continued to do so during the COVID-19 public health emergency. The Applicant stated it incurred additional costs because the residents were quarantined and could not dine in communal dining areas of the facility per NYSDOH guidelines. However, PA funding for additional costs related to operating a facility is only available if the services in question that the facility provided are specifically related to otherwise eligible emergency protective measures. The requested costs are not eligible under FEMA’s Food Policy, as the circumstances described by the Applicant do not meet the established COVID-19 Food Policy indicators for the provision of food as an emergency protective measure,[12] nor are they eligible under any other FEMA COVID-19 policy.[13] Therefore, the additional costs are increased operating costs and are not eligible for PA, even when directly related to the incident.[14] Conclusion