COVID-19 Telehealth Program; Promoting Telehealth for Low-Income Consumers (rule, 86 FR 18459, April 9, 2021)
Summary
A Federal Communications Commission final rule and denial of a petition for partial reconsideration, published in the Federal Register on April 9, 2021 (Vol. 86, No. 67), WC Docket Nos. 20–89 and 18–213, FCC 21–39. It summarizes a Report and Order adopted March 29, 2021 and released March 30, 2021 that establishes rules and processes to distribute further funding through the COVID-19 Telehealth Program to health care providers. The document states that the Commission fully obligated the $200 million of Round 1 by issuing awards for 539 applications from April 16, 2020 through July 8, 2020. It states that in December 2020, Congress appropriated $249.95 million in additional funding for the Program under the Consolidated Appropriations Act, 2021, and sets the requirements for that second round (Round 2).
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Cite this document
“COVID-19 Telehealth Program; Promoting Telehealth for Low-Income Consumers (rule, 86 FR 18459, April 9, 2021).”
Original at www.govinfo.gov. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/covid-19-telehealth-program-promoting-telehealth-for-low-income-consum-b65c5f3266/
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Federal Register / Vol. 86, No. 67 / Friday, April 9, 2021 / Rules and Regulations 18459
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[FR Doc. 2021–07333 Filed 4–8–21; 8:45 am] adopted March 29, 2021 and released evaluate applications on a rolling basis
BILLING CODE 6560–50–P March 30, 2021. Due to the COVID–19 and to prioritize applications that
pandemic, the Commission’s targeted the areas hit hardest by COVID–
headquarters will be closed to the 19 and where the Program’s support
FEDERAL COMMUNICATIONS general public until further notice. The would have the most impact on
COMMISSION full text of this document is available at addressing health care needs. The
the following internet address: https:// Commission fully obligated the $200
47 CFR Chapter I docs.fcc.gov/public/attachments/FCC- million by issuing awards for 539
21-39A1.pdf. applications from April 16, 2020
[WC Docket Nos. 20–89, 18–213; FCC 21– through July 8, 2020.
39; FR ID 20341] I. Introduction 3. Subsequently, in December 2020, as
1. The RO, builds upon the success of part of the CAA, Congress appropriated
COVID–19 Telehealth Program;
the Commission’s Coronavirus Disease $249.95 million in additional funding
Promoting Telehealth for Low-Income 2019 (COVID–19) Telehealth Program for the Program. In January 2021, as
Consumers (Program), established pursuant to the required by the CAA, the Bureau sought
AGENCY: Federal Communications Coronavirus Aid, Relief, and Economic comment on application evaluation
Commission. Security (CARES) Act. The Commission metrics to ensure the equitable
ACTION: Final rule; denial of petition for
adopts additional requirements and distribution of these additional funds,
partial reconsideration. processes to further fund telehealth and including proposing and seeking
connected care services as required by comment on improvements to the initial
SUMMARY: In this document, the Federal Congress in the CAA. Over the course of application process. Then, in February
Communications Commission the last year, in response to the COVID– 2021, the Commission adopted a Report
(Commission) establishes rules and 19 pandemic, people across the country and Order, FCC 21–24, expanding the
processes to further distribute funding have migrated more aspects of their responsibilities of the Universal Service
through the COVID–19 Telehealth daily lives online, including health care Administration Company (USAC) to
Program to health care providers, in visits and treatment, to slow the spread include the administration of the
response to the COVID–19 pandemic, to of the COVID–19 virus. As a result, the COVID–19 Telehealth Program. The
build on Round 1 of the Program, and use of telehealth has exploded and has Commission establishes requirements,
implement Congress’s direction under become an increasingly vital tool for processes, and procedures for the
the Consolidated Appropriations Act, health care providers, enabling them to second round of Program funding
2021 (CAA) for additional relief. The minimize the risk of exposure to appropriated under the CAA (Round 2).
CAA funding is distributed through the COVID–19 while still providing patient The Commission directs USAC to
Program to the health care providers care. administer the Program and the Bureau
who need it most, as determined by 2. On April 2, 2020, the Commission and the Office of Managing Director
objective metrics. established the Program to administer (OMD) to provide oversight over
$200 million in funding appropriated by USAC’s activities consistent with the
DATES: Effective April 9, 2021.
Congress in the CARES Act. Congress RO.
FOR FURTHER INFORMATION CONTACT: directed the Commission ‘‘to support 4. Telehealth refers to a ‘‘broad range
Stephanie Minnock, Wireline efforts of health care providers to of health care-related applications that
Competition Bureau, (202) 418–7400 or address coronavirus by providing depend upon broadband connectivity,’’
by email at Stephanie.Minnock@fcc.gov. telecommunications services, and can include, ‘‘telemedicine;
We ask that requests for information services, and devices exchange of electronic health records;
accommodations be made as soon as necessary to enable the provision of collection of data through Health
possible in order to allow the agency to telehealth services’’ during the COVID– Information Exchanges and other
satisfy such requests whenever possible. 19 pandemic. For the initial round of entities; exchange of large image files
Send an email to fcc504@fcc.gov or call funding (Round 1), the Commission (e.g., X-ray, MRIs, and CAT scans); and
the Consumer and Governmental Affairs geared the Program toward providing the use of real-time and delayed video
Bureau at (202) 418–0530. immediate assistance to eligible health conferencing for a wide range of
SUPPLEMENTARY INFORMATION: This is a care providers to provide telehealth and telemedicine, consultation, training, and
synopsis of the Commission’s Report connected care services to patients at other health care purposes.’’ This
and Order (RO) and Order on their homes or mobile locations. The definition does not preclude health care
Reconsideration (Recon) in WC Docket Commission directed the Wireline providers from using
Nos. 20–89 and 18–213; FCC 21–39, Competition Bureau (Bureau) to telecommunications services to provide
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18460 Federal Register / Vol. 86, No. 67 / Friday, April 9, 2021 / Rules and Regulations
telehealth in response to COVID–19, as Commission should treat applications Commission finds that there was good
telecommunications services are eligible filed during the funding rounds for cause to seek comment through a
for funding for Round 2 of the Program. awards from the [Program] using Bureau-level Public Notice because of
The Commission has previously amounts appropriated under the CARES the unprecedented nature of this
observed that health care providers use Act . . . .’’ Second, it instructs the pandemic and the need for immediate
telehealth to respond to health Commission, to the extent feasible, to action, and the fact that issuing a
challenges as varied as diabetes, ensure that at least one applicant from Commission-level Public Notice would
pediatric heart disease, opioid all 50 states and the District of Columbia have necessitated a delay in committing
dependency, strokes, high-risk is awarded funds during either of the funds to providers who are addressing
pregnancies, cancer, and mental health Program’s funding rounds. Third, the the COVID–19 pandemic. Indeed,
treatment, and to provide such benefits CAA directs the Commission to allow issuing a Notice of Proposed
as specialist consultations and ongoing applicants from Round 1 the Rulemaking in these circumstances
patient monitoring. In addition to opportunity to update or amend their would be unnecessary and therefore not
improving health outcomes for patients, applications. Fourth, it directs the required under the ‘‘good cause’’
telehealth technologies have the Commission, to the extent feasible, to
potential to significantly reduce health exception of U.S.C. 553(b)(B). See 5
provide applicants, upon request, U.S.C. 553(b)(B) (permitting deviation
care costs. In the First COVID–19 Report information on the status of their
and Order, FCC 20–44, 85FR70150, from formal rulemaking procedures
application and a rationale for the final
November 4, 2020 (C19–RO), the where the agency ‘‘for good cause’’ finds
funding decision. And finally, it
Commission defined ‘‘connected care that they are ‘‘impracticable,
requires that the Commission ‘‘issue
services’’ as a subset of telehealth that notice to the applicant of the intent of unnecessary, or contrary to the public
‘‘uses broadband internet access service- the Commission to deny the application interest.’’). The Bureau first sought
enabled technologies to deliver remote and the grounds for that decision’’ and comment on which evaluation metrics
medical, diagnostic, patient-centered, ‘‘provide the applicant with 10 days to to use during Round 2, and whether the
and treatment-related services directly submit any supplementary information Commission should continue to target
to patients outside of traditional brick that the applicant determines relevant,’’ funding to areas that were ‘‘hardest hit’’
and mortar medical facilities—including which must be taken into account for by COVID–19 and where applicants
specifically to patients at their mobile the final funding decisions. were working under pre-existing strain.
location or residence.’’ While the use of The Bureau also asked whether the
7. On January 6, 2021, the Bureau
telehealth and connected care services Commission should maintain the $1
released a Public Notice that sought
are not new methods of providing million cap per applicant on funding
comment, as required by the CAA, on
health care, the deployment of these awards and proposed establishing an
improvements to the Program and
services has accelerated in response to application filing window rather than
lessons learned from Round 1. In the
the transmission risks of the continuing to accept and evaluate
C19–RO, the Commission determined
coronavirus. applications on a rolling basis. Next, the
5. The first reported cases of COVID– that additional notice and comment was
not necessary for two independent Bureau sought comment on how the
19 were identified in the United States
reasons: Additional notice and comment Commission should treat remaining,
over one year ago. While development
procedures would be impracticable and unfunded applications from Round 1,
and distribution of effective vaccines
has provided hope, a quick emergence contrary to the public interest under the and proposed requiring Round 1
from the spread of the virus is not a Administrative Procedure Act’s ‘‘good applicants to update and resubmit their
certainty and the needs of the health cause’’ exception, and all or nearly all applications to be considered for Round
care community are still great. As of the COVID–19 Telehealth Program 2. The Bureau further sought comment
Congress recognized in the CAA, was a logical outgrowth of the agency’s on additional improvements to the
providing health care providers the Connected Care Notice, FCC 18–112. Program and proposed using USAC to
funds they need to deploy telehealth See C19–RO, 35 FCC Rcd at 3383, paras. assist in administering the remaining
solutions for their patients thus remains 35–36 (citing, inter alia, 5 U.S.C. work necessary to complete Round 1, as
as important as ever during this public 553(b)). The Commission reachs a well as Round 2 application review,
emergency. similar determination here. First, the invoice review, and outreach. Finally,
6. On December 27, 2020, the CAA Commission finds that the decision the Bureau requested comment on how
was signed into law, providing an today is a logical outgrowth of the to improve the eligibility review
additional $249.95 million to the Connected Care Notice. Indeed, the processes for Round 2, both with respect
Commission to support the COVID–19 Commission’s decision constitutes a to the eligibility of health care provider
Telehealth Program. This additional second round of the very same program applicants and their requests for
funding will allow the Commission to for which the FCC properly proceeded services and connected devices.
continue its efforts to expand telehealth to an Order in April 2020, FCC 20–44.
and connected care services throughout Second, the Commission also finds that 8. On February 2, 2021, the
the country and enable patients to the APA’s good cause exception to Commission acted on the Public Notice,
access necessary health care services notice and comment is satisfied. In DA 21–14 and decided to use USAC to
while helping slow the spread of the reaching this conclusion, the administer the remainder of Round 1
disease. In addition to appropriating Commission notes that the CAA and to administer all of Round 2 of the
$249.95 million in new funds for the specified that the Commission ‘‘shall Program. On February 4, 2021, the
Program, the CAA requires the issue a Public Notice seeking comment Commission entered into an MOU with
Commission to consider several changes within ten days of enactment.’’ CAA USAC in support of the Program. As
to the Program and to make several 903(c)(1)(A). The Commission satisfied with its role in administering the
others. First, it directs the Commission this directive when it sought comment Universal Service Fund (USF) Programs,
to seek comment on the ‘‘metrics the through a Bureau-level Public Notice in USAC will be limited to program
Commission should use to evaluate January 2021, DA 21–14, 86FR8356, administration and will not have the
applications for funding’’ and ‘‘how the February 5, 2021. In any event, the authority to make policy decisions.
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Federal Register / Vol. 86, No. 67 / Friday, April 9, 2021 / Rules and Regulations 18461
II. Discussion approve, and grant funding to Commission would risk exhausting all
9. In the RO, the Commission adopts applicants ‘‘as rapidly as possible on a funding before an acceptable
changes to the Program to implement rolling basis . . . until it ha[d] application from a certain state was
the CAA’s requirements, improve the committed all COVID–19 Telehealth received. By adopting a filing window,
administration of the Program, and to Program funding . . . .’’ the Commission is able to ensure that
12. During Round 1 of the Program, funding will be committed to applicants
establish the process by which USAC,
applications were submitted starting on in each state and territory, as discussed
with oversight from the Bureau, will
April 13, 2020; the Bureau announced in more detail in the following.
award the additional appropriated funds
that it would no longer accept new 15. A filing window also enables the
to eligible health care providers. First,
applications on June 25, 2020. At the Commission to more easily implement
the Commission establishes an
same time, Commission staff reviewed other new procedures required by
application filing window to provide a
and awarded funding on a rolling basis Congress in Round 2. Congress provided
level playing field to all applicants,
until all appropriated funding had been that if the Commission intends to deny
regardless of size or resource level.
committed. While this process allowed any Round 2 applications, it is required
Second, the Commission explains the
funding to be committed immediately to issue notice to the applicant, provide
application filing process for Round 2, after the Program began, applications the grounds for the denial, and give the
including the process used to determine submitted later in the Program were not applicant 10 days to submit any
an applicant’s eligibility. Third, the reviewed because the available funds supplementary information. Congress
Commission details the application had already been committed. There is also instructed the Commission to
evaluation process, including the also a concern that some smaller provide, to the extent feasible,
specific metrics USAC will use to providers with more limited resources applicants with information about the
prioritize and evaluate the Round 2 may have faced difficulties quickly status of their application and the
applications and provide additional completing their applications. In the rationale for a final funding decision. If
information on the process to confirm Public Notice, DA 21–14 the Bureau applications were accepted on a rolling
the eligibility of requested items. proposed establishing an application basis, compliance with these statutory
Fourth, the Commission explains the filing window and awarding funding directives would not be feasible, as
funding commitment process. Last, the based on pre-defined evaluation metrics commitments would be awarded as
Commission directs USAC to conduct instead of reviewing applications and soon as an application was approved
educational outreach efforts to explain awarding funding on a rolling basis. and likely would be exhausted by the
the application process for Round 2, and Commenters overwhelmingly supported time unsuccessful applicants were able
to use the same reimbursement structure this approach, and the Commission to supplement their applications. In
for Round 2 of the Program that was agrees. Establishing a filing window is short, awarding commitments on a
used for Round 1. consistent with the plain language of the rolling basis would completely
10. Through the RO, the Commission CAA, is more equitable, and will allow undermine the requirement that the
takes steps to improve the COVID–19 USAC to review all applications before Commission provides applications to be
Telehealth Program in accordance with selecting the best-qualified applicants. denied the ability to submit new
Congressional guidance while building 13. The Commission also finds that information. Instead, the Commission
upon the lessons learned during Round the CAA effectively compels the adopts an application filing window
1. The Commission modifies some opening of a filing window that treats and a series of simple, transparent
Program requirements but keep all applications received during the metrics to evaluate applications. This
unchanged many others, including window as timely and requires the approach will allow all properly filed
requirements regarding the eligibility of review in full of all such applications. applications to be reviewed, and it will
health care providers, funding Were the Commission to accept also allow for advance notice of an
limitations, procurement, compliance applications on a rolling basis and applicant’s potential denial to be
audits, and post-program feedback commit funding once an application provided.
reports. The Commission cautions was received and reviewed, it would be 16. Commenters overwhelmingly
applicants to carefully review the impossible to compare all applications supported a filing window. Commenters
Program requirements and guidance. against each other and use an objective argued that accepting applications on a
Applicants are ultimately responsible set of evaluation metrics. Instead, the rolling basis disadvantaged smaller
for compliance with Program earliest-filed applications that met a providers who lacked the resources to
requirements, including all deadlines quality threshold would be awarded quickly complete applications, and that
and eligibility requirements. funding, while later-filed applications awarding funding on a ‘‘first-come, first-
11. Establishing an Application Filing that scored higher based on a set of served’’ basis meant that many
Window. To facilitate a more efficient objective metrics could be denied the applications would not be evaluated.
and equitable application review same funding. While a few commenters supported
process, the Commission first 14. The CAA also directs the awarding Round 2 funding on a rolling
establishes an application filing window Commission to ensure that, to the extent basis because it would allow for funding
after which USAC, with oversight from feasible, at least one applicant in each to be awarded more quickly, the
the Bureau, will review all applications state and the District of Columbia Commission believes the CAA requires
from eligible applicants based on the receives Program funding. Adopting a a funding window and also, based on
pre-defined evaluation metrics the filing window and objective evaluation the experience administering Round 1,
Commission discusses in more detail. metrics allows the Commission to fulfill all applications should be reviewed
The Commission’s C19–RO established this the statutory directive by comparing first, before funding decisions are made,
an application process for the first all applicants against each other, and to ensure that funding is awarded to the
round of the COVID–19 Telehealth committing funding to the top-scoring most deserving applicants. A filing
Program applicants that permitted applicant in each state. It would not be window will therefore enable the
applicants to file requests at any time possible to follow this statutory Commission to accomplish Congress’s
after the start of the Program and directive if the Commission accepted objectives. At the same time, and to
required Commission staff to review, applications on a rolling basis, as the address in part concerns about the
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18462 Federal Register / Vol. 86, No. 67 / Friday, April 9, 2021 / Rules and Regulations
ability to quickly commit funding, the Commission to seek comment on how to applicants who received $1 million in
Commission establishes an abbreviated treat Round 1 applicants during Round Round 1 could lead to providers who
application filing window of seven 2. To fulfill Congress’s directives, the badly need funding being unable to
calendar days for Round 2 of the Public Notice, DA 21–14 sought receive it.
Program. Commenters also requested comment on specific issues, and 21. Eligibility and Application
additional guidance, including technical proposed requiring Round 1 applicants Requirements. Health Care Provider
webinars, for Round 2 of the COVID–19 who wished to participate in Round 2 Eligibility. The Commission will also
Telehealth Program. See, e.g., Hudson to update and resubmit their continue to use the Rural Health Care
Headwaters Health Comments, WC applications to be considered for Round (RHC) program’s statutory categories to
Docket No. 20–89, at 4. As the 2 funding. Commenters overwhelmingly determine the eligibility of health care
Commission discusses in more detail in supported the Bureau’s proposal that providers for Round 2 of the Program,
the following, see infra Round 2 Round 1 applicants should be able to including non-profit and public health
Outreach, the Commission instructs update and resubmit their applications care providers, as defined in section
USAC to conduct outreach and to receive Round 2 funding, and the 254(h)(7)(B) of the Communications Act.
education for a period of at least three Commission adopts this requirement. Accordingly, the Commission directs
weeks before the filing window opens to Many commenters agreed that USAC, with oversight from the Bureau
prepare potential applicants for the applications filed during Round 1 and OMD, to only award funding to
application filing window contain stale, outdated information, and applications from eligible health care
17. Given the short duration of the therefore require updating. While some providers. The Commission reminds
Round 2 application filing window, the commenters suggested that it should be health care providers interested in
Commission directs the Bureau to optional for Round 1 applicants to applying for Round 2 of the Program
publicly provide notice of the opening resubmit their applications, and others that for-profit entities are not eligible for
of the Round 2 application filing suggested a more streamlined funding. With the limited exception of
window at least two weeks before it application or review process for Round dedicated emergency departments of
opens. The Commission believes this 1 applicants, including a priority review rural for-profit hospitals that participate
two-week notice period, along with process for such applications, the in Medicare, which are also eligible to
outreach associated with the Program, Commission disagrees with these participate in the RHC program, and
will provide potential applicants suggestions. By requiring Round 1 were therefore eligible for Round 1
enough time to ready applications for applicants to resubmit their applications funding. See Rural Health Care Support
filing during the window. The for Round 2, the Commission can ensure Mechanism, Report and Order, Order on
Commission also expects that the Round that funding is not awarded based on Reconsideration, and Further Notice of
2 application filing window will open outdated, incorrect information, and Proposed Rulemaking, 18 FCC Rcd
within 30 days of release of the RO. ensure equitable review of all Round 2 24546, 24553–54, para. 13 (2003), 68 FR
Accordingly, the Commission directs applications. Finally, as discussed later, 74492, December 24, 2003. The Program
the Bureau to issue a Public Notice Round 1 applicants that were not remains open to eligible health care
announcing the opening and closing awarded funding will also receive an providers regardless of whether they are
dates for the Round 2 application filing increase in points in Round 2 which are located in a rural or non-rural location.
window as soon as possible, consistent not available to other Round 2 Based on its extensive experience
with the effective date of this Program. administering the RHC Program, the
applicants.
18. Application Filing Process. In the Commission concluded that instituting
Public Notice, DA 21–14 the Bureau 20. The Public Notice, DA 21–14 also the same eligibility criteria for Round 1
sought comment on a number of specifically sought comment on whether would facilitate the administration of
application-related issues, including Round 1 participants that were awarded the COVID–19 Telehealth Program. The
whether Round 1 applicants would be $1 million in Round 1 should be eligible Commission finds that this conclusion
required to resubmit their applications to participate in Round 2, and whether was correct.
for Round 2, whether Round 1 the Commission should continue the 22. Several commenters
applicants that received funding awards approach of not awarding more than $1 recommended expanding the eligibility
(funding awardees) should be eligible to million per applicant. The Commission for Round 2 to include other health care
participate in Round 2, and whether concludes to maintain the commitment providers, such as physician-office-
applicants should be required to to not award more than $1 million total based practices. The Commission
complete the FCC Form 460. As the per applicant in Round 2 to distribute disagrees. As the Commission explains
Commission discusses in more detail in funding to more applicants. While the in more detail in the following, Program
the following, Round 1 applicants that record was mixed on limiting support to participation is limited to the providers
did not receive funding during the $1 million across both rounds, the enumerated in section 254(h)(7)(B) of
initial round are required to submit a Commission concludes that the the Communications Act to maintain
new application for Round 2; Round 1 limitation should only apply to Round consistent eligibility with Round 1 and
funding awardees are eligible to apply 2. Thus, all eligible Round 2 applicants to provide clarity to program
for Round 2 of the Program, subject to may qualify for the full commitment participants. Keeping Program eligibility
a $1 million cap per applicant for amount per application. The requirements the same across both
Round 2; and all Round 2 applicants Commission believes that many Rounds will result in more efficient
without an approved eligibility applicants, even those receiving Round review of applications. Maintaining the
determination through the FCC Form 1 funding, continue to need program same eligibility rules will also ensure
460 process will be required to submit support given the passage of time that funding is targeted to health care
FCC Forms 460. between last year’s commitments and providers that are likely to need it most
19. Round 1 Applicants’ Eligibility. Round 2, and that the application to respond to this pandemic while
Congress made it clear that at least some evaluation metrics the Commission allowing the Commission to ensure that
applicants who had applied for funding adopts will sufficiently ensure funding is used for its intended
in Round 1 were to be eligible for Round equitable, nationwide distribution of purposes. Accordingly, Round 2
2 of the Program, and it instructed the funding, and a blanket prohibition on funding should only be provided to
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Federal Register / Vol. 86, No. 67 / Friday, April 9, 2021 / Rules and Regulations 18463
non-profit and public eligible health Round 2 all applicants must have a applicant’s eligibility for the RHC
care providers that fall within the health care provider number (HCP Program. Because the RHC Program and
categories of health care providers in Number) assigned to them by USAC at the COVID–19 Telehealth Program have
section 254(h)(7)(B) of the the beginning of the FCC Form 460 nearly identical eligibility criteria, the
Communications Act. The statutory application process before they can Commission believes that the FCC Form
categories of health care providers submit their application. Health care 460 is similarly essential for
include: (1) Post-secondary educational providers submitting FCC Forms 460 in determining the eligibility of a Program
institutions offering health care anticipation of participation in Round 2 applicant. The FCC Form 460 requires
instruction, teaching hospitals, and of the Program should indicate on their an applicant to provide its contact and
medical schools; (2) community health FCC Forms 460 that they are applying location information, along with its
centers or health centers providing for the COVID–19 Telehealth Program to basis for qualifying for the Program. All
health care to migrants; (3) local health expedite the review of their FCC Forms of this information is essential to
departments or agencies; (4) community 460. determining an applicant’s eligibility;
mental health centers; (5) not-for-profit 24. While requiring applicants to requiring that information to be
hospitals; (6) rural health clinics; (7) submit FCC Forms 460 for each site in provided via some medium other than
skilled nursing facilities; or (8) consortia their applications during Round 1 the FCC Form 460 would be less
of health care providers consisting of assisted with funding eligible locations, efficient than simply using the FCC
one or more entities falling into the first it also delayed review of many Form 460, which was designed to make
seven categories. For purposes of the applications, particularly for eligibility determination as efficient as
COVID–19 Telehealth Program, which is applications with a large number of possible for both applicants and
authorized by the CARES Act, and not sites, each of which required its own reviewers.
the 1996 Telecommunications Act, both eligibility determination. This 27. The Commission also concludes
rural and non-rural health clinics are requirement also imposed a substantial that requiring the lead applicant to
eligible to receive funding. burden on applicants with multiple submit an FCC Form 460 is an
sites. In the Public Notice, DA 21–14 the important Program safeguard because it
23. Round 2 Application
Commission sought comment on ways allows for reviewers to ensure that only
Requirements. During Round 1, the
to streamline the application process, eligible health care providers receive
Commission required any health care
including directing USAC to include funding. This conclusion is supported
provider interested in participating in eligibility review as part of the by the experience in Round 1 when
the Program that did not already have application process and potentially many ineligible applicants filed the FCC
an eligibility determination for the RHC ending the requirement that applicants Forms 460 and incorrectly certified their
Program to file an FCC Form 460 to submit FCC Forms 460. In conjunction eligibility. Ineligible applicants also
receive an eligibility determination and with seeking comment on ending the contributed to the FCC Forms 460
an HCP number for each site included requirement that applicants submit the processing backlog that many
on its application. While the FCC Form 460, the Commission sought commenters noted. The Commission is
Commission retains the previously comment on other methods of confident that with more extensive
adopted eligibility rules for applicants determining an applicant’s eligibility for outreach and education before the filing
in Round 2, the Commission modifies the Program. window opens, fewer ineligible
the previous requirement that 25. After a careful review of the applicants will submit the FCC Form
applicants obtain an eligibility record, the Commission retains the 460. While some commenters suggested
determination for each site listed on its requirement that each new applicant applicant certifications combined with
application by filling out an FCC Form submit an FCC Form 460. The post-disbursement audits would be
460 for each site. Instead, the Commission note’s that Round 1 sufficient to ensure program integrity,
Commission will only require applicants who submitted an FCC Form the Commission disagrees. Even if
applicants to obtain an approved 460 and were deemed eligible do not disbursements to ineligible applicants
eligibility determination for the lead need to submit a new Form; if any were discovered during audits and the
health care provider listed on the applicant’s FCC Form 460 is no longer improper payments were recouped, this
application. The Commission expects accurate, however, they must update the approach would still thwart Congress’s
the lead health care provider site listed Form’s information. While some clear intent of quickly distributing
on each application to ensure that it has commenters argued that filing an FCC funding to the eligible health care
an approved eligibility determination Form 460 is a burdensome and providers who need it the most. Such a
from USAC. If it does not already have unnecessary process, the Commission delay, in the midst of a pandemic,
an approved eligibility determination, concludes that the FCC Form 460 would harm the public interest. The
the lead health care provider should file remains a necessary tool that will enable Commission concludes that eligibility
an FCC Form 460 with USAC. USAC to quickly and efficiently reviews must be conducted before funds
Applicants requesting funding for determine an applicant’s eligibility, and are awarded to make sure that funds go
multiple eligible health care provider the Commission strongly encourages to those eligible providers who need
sites in a single application do not need prospective applicants that have not them the most.
to receive eligibility determinations for already obtained an eligibility 28. The Commission’s review of the
every site that will receive funding determination to file an FCC Form 460 record also convinces that a better
during Round 2 of the Program, but as soon as possible. alternative to the FCC Form 460 is not
instead will be required only to certify 26. The Commission concludes that available. Many commenters opined
under penalty of perjury that all other the FCC Form 460 remains necessary that filing the FCC Form 460 was an
health care sites that would receive because the information contained on unnecessary burden, yet none identified
Program funding are eligible for the form is essential for determining an an adequate alternative to verify an
Program funding. Additionally, applicant’s eligibility for the Program. applicant’s eligibility for purposes of
although applicants may still file their As a threshold matter, the FCC Form this Program. While some commenters
applications while their FCC Forms 460 460 was designed specifically to capture suggested using an applicant’s Tax ID
are pending USAC’s review, during the relevant information to determine an number or National Provider Identifier
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18464 Federal Register / Vol. 86, No. 67 / Friday, April 9, 2021 / Rules and Regulations
(NPI) number, the Commission does not intends to ease the administrative mailing address, and email address), as
believe that either identifier, standing burden on both USAC and selected well as the contact information for the
alone, would be sufficient to determine participants.’’ After reviewing the project manager.
an applicant’s eligibility because an NPI record, the Commission concludes that • A list of the telecommunications
number does not provide information given the limited, emergency nature of services, information services, or
needed to determine an applicant’s the Program, similar administrative connected ‘‘devices necessary to enable
Program eligibility, such as an burden concerns justify the different the provision of telehealth services’’
applicant’s non-profit status. Other eligibility determination approach that requested, the cost for each service or
commenters suggested using an the Commission adopts solely for connected device, and the total amount
applicant’s HCP number. The purposes of the COVID–19 Telehealth of funding requested.
Commission notes that a health care Program. • Supporting documentation for the
provider that already has an HCP 30. To further expedite the FCC Form costs indicated in the application, such
number and an approved eligibility 460 review process, the Commission as a vendor or service provider quote,
determination, whether obtained from expects health care providers invoice, or similar information.
USAC for this Program or the RHC undergoing the FCC Form 460 review 32. SAM Registration. All entities that
program after filling out an FCC Form process for Round 2 of the Program to intend to apply to the Program must
460, does not need to file an additional respond to any questions from USAC also register with the System for Award
FCC Form 460 application. about their FCC Form 460 on an Management (SAM). SAM is a web-
Additionally, the Commission agrees accelerated timetable. Accordingly, the based, government-wide application
with those commenters who noted that Commission directs USAC to only that collects, validates, stores, and
Round 1 applicants are already familiar require health care providers seeking disseminates business information
with the Program’s application eligibility determinations for Round 2 of about the federal government’s partners
procedures, and new eligibility the Program to respond to written in support of federal awards, grants, and
determination procedures for Round 2 information requests from USAC, such electronic payment processes.
as requests for clarification about an Registration in SAM provides the
would lead to confusion for applicants.
applicant’s responses on their FCC Form Commission with an authoritative
29. At the same time, the Commission source for information necessary to
460, within two business days. USAC
recognizes that requiring a separate FCC provide funding to applicants and to
can provide an extension of two
Form 460 for each site in an application additional business days upon request, ensure accurate reporting pursuant to
created a significant burden on both but may deny an FCC Form 460 if the the Federal Funding Accountability and
applicants and reviewers. To streamline health care provider does not timely Transparency Act of 2006, as amended
application review for this round of the respond to written information requests. by the Digital Accountability and
Program while still retaining the If an FCC Form 460 request is rejected Transparency Act of 2014 (collectively
protections that the FCC Form 460 because the applicant did not timely the Transparency Act or FFATA/DATA
provides, the Commission will no respond to these written information Act). In August 2020, the Office of
longer require applicants whose requests, the applicant may file a new Management and Budget updated the
applications contain multiple sites to FCC Form 460. The Commission rules governing compliance with the
submit a separate FCC Form 460 for establishes this deadline to set Transparency Act as part of wider
each site. Instead, applicants will only expectations for health care providers ranging revisions to title 2 of the Code
be required to submit the form for the and to allow USAC to more quickly of Federal Regulations. 85 FR 49506
application’s lead health care provider. review and process the FCC Forms 460 (published Aug. 13, 2020) (including
In instances where the applicant is not filed in anticipation of Round 2 of the revisions to 2 CFR parts 25, 170, 183,
a health care provider, applicants are Program. and 200). OMB explained that the SAM
required to receive an eligibility 31. Required Application Information. registration requirements were
determination for the lead health care To provide applicants with additional expanded ‘‘beyond grants and
provider. The Commission concludes assistance, the Commission attached, as cooperative agreements to include other
that requiring only one FCC Form 460 Appendix C to the RO, an application types of financial assistance’’ to ensure
per applicant will significantly reduce process guidance document which sets compliance with FFATA. 85 FR 49506,
the burdens on applicants and on forth the complete list of information 49517. Only those entities registered in
reviewers. This decision is similar to the that should be included in each SAM will be able to receive
approach used in the Rural Health Care application. Similar to the application reimbursement from the Program.
Pilot Program, when the Commission requirements in Round 1, Round 2 Potential applicants that are already
allowed applicants to submit only one applications must contain, at a registered with SAM do not need to re-
FCC Form 465 for all sites and briefly minimum, the following information: register with that system. Active SAM
explain why each health care provider • The name, physical address, registration, however, is required for an
listed on an application was eligible for county, and the HCP number, for the awardee to receive a payment from the
the program. At the time, the lead health care provider seeking Treasury. To register with the system, go
Commission concluded that ‘‘[r]equiring funding from the COVID–19 Telehealth to https://www.sam.gov/SAM/ and
the filing of a separate FCC Form 465 for Program application. USAC assigns a provide the requested information.
each health care provider location health care provider number when an Furthermore, Program awardees may be
would result in thousands of FCC Forms applicant files an FCC Form 460. As subject to further FFATA/DATA Act
465 being filed with USAC, creating a discussed in more detail in the reporting requirements to the extent that
substantial administrative burden for following, an HCP number, and awardees subaward the payments they
both USAC and the selected approved eligibility determination, is receive from the Program, as defined by
participants. By contrast, in permitting only required for an application’s lead FFATA/DATA Act regulations.
selected participants to file a single FCC health care provider site. Awardees may be required to submit
Form 465 per application with an • Contact information for the data on those subawards.
attachment detailing all participating individual who will be responsible for 33. Do Not Pay. Pursuant to the
health care providers, the Commission the application (telephone number, requirements of the Payment Integrity
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Federal Register / Vol. 86, No. 67 / Friday, April 9, 2021 / Rules and Regulations 18465
Information Act of 2019 (PIIA), the other metrics [the Commission] should providers in areas most impacted by the
Commission is required to ensure that a use to prioritize applications during the COVID–19 pandemic. Each metric is
thorough review of available databases evaluation process.’’ It also sought assigned its own objective scoring
with relevant information on eligibility comment on prioritizing applications mechanism, which will allow USAC to
occurs to determine program or award from providers who treat ‘‘specific at- score applications. The Commission
eligibility and prevent improper risk populations, such as Tribal, low- acknowledges that some of the metrics
payments before the release of any income, or rural communities,’’ and overlap and applications could receive
federal funds. To meet this requirement, sought comment on defining the points under multiple metrics for the
the Commission and USAC will make populations that each metric represents. same factor (e.g., serving a low-income
full use of the Do Not Pay system 36. In response, stakeholders population), which could make certain
administered by the Treasury’s Bureau recommended that the Commission use applications more likely to receive
of the Fiscal Service. If a check of the a variety of factors to evaluate Round 2 funding. This result is reasonable
Do Not Pay system results in a finding applications, including: Application because it ensures that the providers
that a Program awardee should not be quality, treatment of specific types of who need funding the most will be
paid, the Commission will withhold patients, underserved and at-risk prioritized. Finally, to enhance
issuing commitments and payments. communities, treatment of low-income transparency, the Commission selects
USAC may work with the Program and impoverished patients (regardless of application evaluation metrics that can
awardee to give it an opportunity to rural or urban location), mental and be verified using publicly available
resolve its listing in the Do Not Pay behavioral health facilities, large information. To reduce the
system if the awardee can produce percentage of COVID–19 patients, administrative burden during the review
evidence that its listing in the Do Not institutions with telehealth experience,
process, the Commission adopts
Pay system should be removed. and teaching hospitals. Commenters
application evaluation metrics that will
However, the awardee will be were generally supportive of prioritizing
be simple to quantify and evaluate. The
responsible for working with the applicants who serve at-risk
Commission directs USAC to apply
relevant agency to correct its populations. Other commenters stressed
these evaluation metrics during the
information before a reimbursement that Round 1 funding was
Round 2 application review process.
payment will be issued by the Treasury. disproportionately awarded to urban
34. Application Evaluation Process. areas. 38. Round 2 Evaluation Metrics. The
Application Evaluation Metrics. The 37. The Commission agrees with Commission directs USAC to prioritize
CAA directs the Commission to seek commenters who supported using a set applications from eligible health care
public comment on ‘‘the metrics the of evaluation metrics, and the providers that demonstrate that they
Commission should use to evaluate Commission establishes an objective qualify for the following evaluation
applications for funding’’ as well as and transparent application evaluation metrics: Hardest Hit Area; Low-Income
‘‘how the Commission should treat process for Round 2. After reviewing the Area; Round 1 Unfunded Applicant;
applications filed during’’ Round 1 that record and considering the lessons Tribal Community; Critical Access
did not receive CARES Act funding, learned during the Round 1 application Hospital; Federally Qualified Health
should those applicants wish to apply review process, the Commission Center, Federally Qualified Health
for funding during Round 2. The CAA concludes that Round 2 application Center Look-Alike, or Disproportionate
also requires the Commission to provide evaluation metrics should prioritize the Share Hospital; Healthcare Provider
notice to Congress of what metrics the overall performance goals of the Shortage Area; Round 2 New Applicant;
Commission intends to use to evaluate Program to fund: (1) Eligible health care and Rural County. The Commission
applications. providers that will benefit most from finds that these objective metrics will
35. The Public Notice, DA 21–14 telehealth funding; (2) as many eligible allow the Commission to award funding
sought comments on how to evaluate health care providers as possible; (3) to the providers that need it most
and prioritize applications during Tribal, rural, and low-income without imposing an undue burden on
Round 2; whether the Commission communities to ensure that this applicants. To provide stakeholders
‘‘should continue to target funding to additional support will be directed to with clarity regarding the Round 2
health care providers in areas ‘hardest communities where the funding would application evaluation process, the
hit’ by COVID–19,’’ particularly given have the most impact; and (4) hardest Commission provides a list of both the
the broader infection rate across the hit areas to make sure that funding metrics and the prioritization points for
nation; and whether there are ‘‘any continues to support health care those metrics in the following table.
ROUND 2 EVALUATION METRICS
Factor Information required Points
Hardest Hit Area ......................................... Applicants must provide health care provider county .................................................. Up to 15.
Low-Income Area ........................................ Applicants must provide health care provider physical address and county .............. Up to 15.
Round 1 Unfunded Applicant ...................... Applicants must provide unique application number from Round 1. For applicants 15.
that applied during Round 1, the application number started with ‘‘GRA’’ followed
by seven numbers (e.g., GRA0000123). Some applications submitted via e-mail
during Round 1 did not receive a GRA number. If the applicant did not receive
an application number, USAC may accept proof of an email submission in lieu of
the application number.
Tribal Community ........................................ Applicants must provide physical address and/or provide supporting documentation 15.
to verify Indian Health Service or Tribal affiliation.
Critical Access Hospital ............................... Applicants must provide proof of Critical Access Hospital certification ....................... 10.
Federally Qualified Health Center/Federally Applicants must (1) provide proof of Federally Qualified Health Center certification, 10.
Qualified Health Center Look-Alike/Dis- or (2) demonstrate qualification as a Federally Qualified Health Center Look-
proportionate Share Hospital. Alike, or (3) demonstrate qualification as a Disproportionate Share Hospital.
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18466 Federal Register / Vol. 86, No. 67 / Friday, April 9, 2021 / Rules and Regulations
ROUND 2 EVALUATION METRICS—Continued
Factor Information required Points
Healthcare Provider Shortage Area ............ Applicants must provide Healthcare Provider Shortage Area ID number or health Up to 10.
care provider county.
Round 2 New Applicant .............................. Applicants must certify, under penalty of perjury, that the applicant has not pre- 5.
viously applied for Program funding.
Rural County ............................................... Applicants must provide health care provider county .................................................. 5.
39. Hardest Hit Area. In response to that this factor warrants a generous county and census tract poverty data
the Public Notice, DA 21–14 several point assignment because it is the only because county data alone may not
commenters supported using the metric directly linked to the geographic sufficiently capture highly concentrated
‘‘hardest hit’’ factor to prioritize area of the applicant as it relates to the low-income communities in urban areas
applications during Round 2. The spread of the virus. Accordingly, the or the poverty level of communities
Commission agrees, as this metric Commission directs USAC to award within counties where there are large
ensures that Program funding is seven (7) points to applications that income gaps. An average poverty rate in
prioritized to health care providers demonstrate that an eligible health care a county may fail to reveal substantially
responding directly to the COVID–19 provider is located in a ‘‘hotspot’’ and higher poverty rates in smaller
pandemic. While some commenters 15 points to applications that geographic areas within a county. For
expressed concern that prioritizing demonstrate that an eligible health care example, Cook County, Illinois has a
applications based on areas that are provider is located in a ‘‘sustained county-level poverty rate of 13%;
‘‘hardest hit’’ may favor large, urban hotspot.’’ however, over 53% of the census tracts
institutions, and others argued that 40. Low-Income Area. In response to within the county have poverty rates
‘‘hardest hit’’ is no longer a useful the Public Notice, DA 21–14 many greater than the tract-level nationwide
metric because the virus has spread commenters recommended prioritizing median rate of 11.5% and
exponentially since last April and most applications from health care providers approximately 31% of the tracts have
locations could be considered ‘‘hardest that are located in low-income areas. tract-level poverty rates greater than the
hit,’’ the Commission finds it The Commission finds using this 75th percentile rate of 19.8%. If only
appropriate to continue to prioritize evaluation metric is sufficient to target county-level poverty data were used,
funding to eligible health care providers funding to low-income areas, and eligible health care providers in those
located in areas that are most-impacted decline to also use Qualified low-income census tracts would be
by the COVID–19 pandemic. To limit Opportunity Zones as an additional ineligible for any low-income
support only to those areas most evaluation metric to target funding to prioritization points. Similar differences
affected by the COVID–19 pandemic, low-income areas because the in county and census tract poverty rates
the Commission defines ‘‘hardest hit’’ as Commission believes that the U.S. occur in other counties across the
areas designated as either a ‘‘sustained Census Bureau, Small Area Income and United States, e.g., Los Angeles County,
hotspot,’’ or a ‘‘hotspot,’’ on the COVID– Poverty Estimates dataset more California; Allegheny County,
19 Community Profile Report, Area of accurately represents a location’s Pennsylvania; Mecklenburg County,
Concern Continuum by County dataset economic reality, and using both low- North Carolina; Erie County, New York.
provided by the U.S. Department of income areas and Qualified Opportunity In such areas, considering both county
Health and Human Services (HHS). The Zones as evaluation metrics would be and census tract poverty rates provides
Commission directs USAC to use the redundant. The Commission agrees that greater flexibility and will identify low-
county tab of the report generated on the health care providers located in low- income communities that may
date of the close of the application filing income areas should be prioritized otherwise be obscured in county-level
window for this prioritization factor. A because such areas contain underserved data. The median poverty rate for a
‘‘sustained hotspot’’ is defined by HHS and at-risk populations. Poverty rates county is 13.4%, and the 75th percentile
as a community that has ‘‘a high serve as useful benchmarks to identify poverty rate for a county is 17.5%. For
sustained case burden and may be these low-income areas. Accordingly, census tracts, the median poverty rate is
higher risk for experiencing health care the Commission directs USAC to use 11.5%, and the 75th percentile poverty
limitations.’’ Hotspots are defined by Census Bureau data to determine which rate is 19.8%. The Small Area Income
HHS as ‘‘communities that have reached health care providers are located in low- and Poverty Estimates do not include
a threshold of disease activity income areas. County-level median and estimates for U.S. territories. For
considered as being of high burden.’’ 75th percentile poverty rates are consistency, the Commission excludes
For Round 2, the Commission directs calculated from the Small Area Income Puerto Rico from the American
USAC to rely on publicly available and Poverty Estimates data, and census Community Survey census tract poverty
COVID–19 infection rates from the day tract rates are calculated from the rates. To the extent information for U.S.
the application filing window closes, American Community Survey data. territories and protectorates is not
specifically using the U.S. Department These resulting levels vary because the available in these datasets, the
of Health and Human Services dataset Small Area Income and Poverty Commission directs USAC to rely on
identified in the preceding, which Estimates include additional other U.S. Census Bureau data sets or
breaks down different levels of information related to participation in other publicly available information to
community spread of COVID–19, and the Supplemental Nutrition Assistance estimate poverty rates. The Commission
award prioritization points to Program and individual income tax directs USAC to determine the poverty
applications in which an eligible health return data, and because the rate of both the county and the census
care provider is located in a county distributions of rates among each tract for the eligible health care provider
defined as a ‘‘sustained hotspot’’ or a geographic area are different. The site the applicant has designated for this
‘‘hotspot.’’ The Commission also finds Commission directs USAC to use both metric. The Commission also directs
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Federal Register / Vol. 86, No. 67 / Friday, April 9, 2021 / Rules and Regulations 18467
USAC to determine the relevant census consistent with the goal of distributing eligibility determinations made using
tract for a health care provider by funding as widely as possible. the FCC Form 460, the Commission
geocoding the applicant-submitted Accordingly, the Commission directs directs USAC to award 15 points to
physical address using standard USAC to prioritize eligible health care applications that demonstrate that an
Geographic Information Systems providers that applied for Round 1 eligible health care provider site is
processes. The census tract where an funding but did not receive it, and either located on Tribal lands or is
eligible health care provider is located award 15 points to applications that operated by the Indian Health Service or
is geographically limited and may not demonstrate they applied for, but did is otherwise affiliated with a Tribe. The
reflect the provider’s complete service not receive, Round 1 funding. Commission directs applicants that are
area. The Commission therefore directs Furthermore, the Commission also otherwise affiliated with a Tribe to
USAC to develop a methodology to assigns a sizable points allocation to this provide supporting documentation
consider poverty rates in adjacent metric to reflect the importance of sufficient to verify their Tribal
census tracts in awarding points for this encouraging unfunded Round 1 affiliation. Finally, in recognition of the
metric. If an application would be applicants to file in Round 2 and the importance of funding applicants on
eligible for more points using the census statutory requirement that Round 1 Tribal lands, the Commission assigns
tract poverty rate than using the county- applicants are able to file in Round 2. the largest point allocation to these
level poverty rate (or vice versa), the 42. Tribal Community. The applications.
Commission directs USAC to award the Commission next prioritizes 43. Critical Access Hospital. Critical
application the higher points available Access Hospitals are located in states
applications to serve sites located in
between the two. The Commission that have established a State Medicare
Tribal areas because those areas are
further directs USAC to award 7 points Rural Hospital Flexibility Program.
generally most in need of support to
to applications that demonstrate that an Applicants should review their state’s
enhance broadband connectivity. While
eligible health care provider is located department of health websites for
broadband in urban areas is nearly
in a county or census tract where the additional information, and must
ubiquitous, as of the end of 2019,
poverty rate is equal to or greater than include some identifier or proof of CAH
‘‘approximately 17% of Americans in
the median poverty rate and less than certification in their application. In
rural areas and 21% of Americans in
the 75th percentile for poverty for that response to the Public Notice, DA 21–
Tribal lands lack coverage from fixed
geographic area, and 15 points to 14 several commenters suggested
terrestrial 25/3 broadband.’’ The considering whether an applicant is a
applications that demonstrate that an absence of broadband availability in
eligible health care provider is located Critical Access Hospital (CAH). A CAH
these areas also makes it more difficult designation is given to eligible rural
in a county or census tract where the for telehealth to be provided, and the
poverty rate is in the 75th percentile or hospitals in participating states by the
Commission concludes that prioritizing Centers for Medicare and Medicaid
greater for that geographic area. these factors will help to address this Services. As defined by statute, a CAH
41. Round 1 Unfunded Applicants. discrepancy. Additionally, the is a hospital that is located in a rural
During Round 1, the Commission Commission has previously recognized area and that: (1) Has 25 or fewer acute
received thousands of applications from that ‘‘there are significant health care care inpatient beds; (2) is located more
health care providers nationwide. The shortages in rural areas and Tribal than 35 miles from another hospital
Commission awarded funding lands,’’ and seek to address this issue by (although exceptions to this requirement
commitments to 539 applications during prioritizing Tribal participation in this apply); (3) maintains an annual average
Round 1, which left a substantial Program. Accordingly, the length of stay of 96 hours or less for
number of Round 1 applications Commission’s decisions to prioritize acute care patients; and (4) provides 24/
unfunded. Notably, only about 2,500 of applicants located on Tribal lands is 7 emergency care services. Small health
these are from institutions that may be rooted in both commenters’ support and care providers like CAHs frequently
eligible for Program funding. Many the ‘‘significant obstacles to broadband struggle to access the resources and
applications were received from for- deployment’’ that Tribal lands still face. capacity to set up their own telehealth
profit or otherwise ineligible providers. While broadband deployment is nearly infrastructure. The Commission finds
In response to the high number of ubiquitous in urban areas, broadband that these characteristics place CAHs
applications that did not receive deployment ‘‘on certain Tribal lands, among the health care providers that
funding, and the CAA, the Public particularly rural Tribal lands, lags need funding from the Program, as they
Notice, DA 21–14 sought comment on behind deployment in other, non-Tribal would benefit from telehealth and are
prioritizing the applications of eligible areas.’’ Additionally, Tribal populations frequently the only health care
health care providers who applied for, face a significantly higher risk from the institutions in their nearby vicinities.
but did not receive, Round 1 funding. COVID–19 pandemic, and facilitating a Accordingly, the Commission directs
The majority of commenters supported more robust telehealth infrastructure USAC to award 10 points to
prioritizing these applicants. While could help to address this disparity. For applications that demonstrate an
some commenters did not believe that Round 2, the Commission adopts the eligible health care provider qualifies as
these applicants should be prioritized, definition of Tribal lands provided in a Critical Access Hospital. The
the Commission concludes that it is the Commission’s Lifeline program Commission awards these entities
appropriate to prioritize eligible rules, and direct Program applicants to points to reflect the importance of these
applicants who applied for but did not use USAC’s Tribal PDF map or the facilities, but the Commission assigns a
receive Round 1 funding. The reference shapefile to determine modest allocation of points because the
Commission believes that equitable whether they are located on Tribal Commission anticipates that this metric
distribution of Program funds is lands. The Commission also includes will overlap with other metrics.
essential, and thus find that prioritizing the Eastern Navajo Agency lands that 44. Federally Qualified Health Center,
eligible health care providers that did have previously been designated as Federally Qualified Health Center Look-
not receive funding during Round 1 eligible for Lifeline and are included in Alike, or Disproportionate Share
over eligible health care providers that the shapefile and map posted on Hospital. Applicants shall verify
did receive Round 1 funding is USAC’s website. Consistent with the whether they qualify for this metric by
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18468 Federal Register / Vol. 86, No. 67 / Friday, April 9, 2021 / Rules and Regulations
providing either their Federally available on the Health Resources and Rural Healthcare Program. Although
Qualified Health Center ID number or Services Administration website. In other application evaluation metrics,
BHCMISID/UDS numbers. In response response to the Public Notice, DA 21– such as whether an applicant is a
to the Public Notice, DA 21–14 14 some commenters suggested Critical Access Hospital, already take
commenters recommended prioritizing prioritizing health care providers into consideration the rurality of health
applications that include health care located in a Healthcare Provider care providers for Round 2 funding, the
providers that qualify as a Federally Shortage Area (HPSA). HPSAs do not Commission directs USAC to consider
Qualified Health Center (FQHC), a have enough health care providers to this evaluation metric independently as
FQHC Look-Alike, or a Disproportionate adequately serve their community. well to ensure that applications
Share Hospital (DSH). Applicants can Support for telehealth and connected representing health care providers in
verify their eligibility as a Look-Alike on care services is especially needed in rural areas are prioritized. Given that
the Health Resources and Services these areas to help health care providers multiple other evaluation metrics also
Administration website. A Federally serve more patients at a greater distance. target funding to rural areas, however,
Qualified Health Center is a community- The Commission directs applicants and the Commission attaches fewer
based health care provider that receives USAC to the Health Resources and prioritization points to the Rural Area
funds from the Health Resources and Services Administration (HRSA), which metric to account for the expected
Services Administration (HRSA) Health is an agency that provides health care to overlap between evaluation metrics.
Center Program to provide primary care people who are geographically isolated, Applicants should use USAC’s Eligible
services in underserved areas. They are and economically or medically Rural Areas Search tool to determine if
also referred to as the ‘‘backbone of the vulnerable. HRSA uses a health care an eligible health care provider is
nation’s health care safety net.’’ These provider’s geographic area and the located in a rural area, and provide the
entities must: (1) Offer services to all, medical services it provides to award an physical address of the qualifying health
regardless of the person’s ability to pay; HPSA score that ranges from 1 to 25. care provider in their application. To
(2) establish a sliding fee discount Applicants should use the HRSA the extent information for U.S.
program; (3) be a nonprofit or public website to find their HPSA score under territories and protectorates is not
organization; (4) be community-based, the ‘‘primary care’’ category, and to available in this dataset, the
with the majority of its governing board provide on their application either the Commission directs USAC to rely on
of directors composed of patients; (5) county information or the HPSA ID other publicly available information,
serve a Medically Underserved Area or number for the eligible health care e.g., urbanization codes, to confirm that
Population; (6) provide comprehensive provider site for this prioritization the health care provider is located in a
primary care services; and (7) have an factor. The Commission directs USAC to rural area. The Commission directs
ongoing quality assurance program. award 5 points to applications that USAC to award 5 points to applications
Federally Qualified Health Centers include this information on their that demonstrate that an eligible health
provide health care services to at-risk application and qualify for this factor care provider site is located in a rural
and vulnerable patients supporting low- with an HPSA score of 1–12; and to area.
income and underserved communities award 10 prioritization points to
applications that include this 48. Ensuring Equitable Nationwide
in both urban and rural areas. FQHC Distribution of COVID–19 Telehealth
Look-Alikes meet the same HRSA information on their application and
qualify for this factor with an HPSA Program Funding. The CAA directs the
Health Center Program qualifications Commission, to the extent feasible, to
required of FQHCs, and they provide score of 13–25.
46. Round 2 New Applicants. Because ensure ‘‘that not less than 1 applicant in
primary care services in underserved each of the 50 States and the District of
the Commission concludes that
areas (like traditional FQHCs), provide Columbia has received funding’’ from
equitable and widespread distribution
care on a sliding fee scale based on the Program since the Program’s
of Program funds is essential, the
ability to pay, and operate under a inception, ‘‘unless there is no such
Commission also directs USAC to
governing board that includes patients. applicant eligible for assistance in a
prioritize applicants that are new to the
A DSH must serve a significantly State or in the District of Columbia.’’
Program over applicants who were
disproportionate number of low-income The Public Notice, DA 21–14 sought
awarded funding in Round 1. New
patients and receive payments from the applicants, however, will receive a comment on different ways to
Centers for Medicaid and Medicare smaller point allocation than Round 1 accomplish this directive, and proposed
Services to cover the costs of providing applicants who did not receive any adopting an application filing window,
care to uninsured patients. After careful funding. There was support in the which would allow for applications
review of the record, the Commission record for this idea, given the time and from states, the District of Columbia, or
finds that directing Program funding to effort that these applicants devoted in territories where a lead applicant did
FQHCs, FQHC Look-Alikes, and DSHs submitting applications in both Rounds not receive Round 1 funding to be
will meet the preceding stated of the Program. Moreover, this approach prioritized. The Commission also sought
objectives of directing Program funding acknowledges that because of the high comments on ways to ensure that lead
to entities that target funding to at-risk demand, ‘‘[a] lot of organizations [in applicants from each state and the
and low-income communities and Round 1] who did not receive funding District of Columbia would receive
would most benefit from telehealth have great ideas to which this funding Round 2 funding. The Commission now
services. Accordingly, the Commission could be used in meaningful ways,’’ and adopts these proposals and seeks to
directs USAC to award 10 points to will help distribute funding to as many ensure that at least two applications
applications that demonstrate that an providers as possible. Accordingly, the with lead health care providers from
eligible health care provider qualifies as Commission directs USAC to award 5 every state, territory, and the District of
(1) an FQHC, (2) an FQHC Look-Alike, points to applicants who did not apply Columbia receive Program funding, if
or (3) a DSH. for Round 1 funding. such applications exist. After
45. Healthcare Provider Shortage 47. Rural County. The Commission applications are scored, the Commission
Area. Applicants should use the HPSA also prioritizes applicants that are directs USAC, with Bureau and OMD
score for primary care, which is publicly located in rural areas, as defined by the oversight, to first commit funding to the
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Federal Register / Vol. 86, No. 67 / Friday, April 9, 2021 / Rules and Regulations 18469
top-scoring Round 2 application with an language. Because the Commission has strain as an application evaluation
eligible lead health care provider already committed to using an metric because that factor, as described
located in a state or territory that did not application filing window, it is feasible in the C19–RO, is difficult to verify.
have a lead health care provider receive to ensure that the highest-scoring Instead, the Commission adopts metrics
funding during Round 1, if feasible. applicant with a lead health care that the Commission previously
Those states are Alaska, Hawaii, and provider in the states and territories identified as factors that contribute to
Montana, and the territories are where a lead health care provider was pre-existing strain, e.g., areas with low-
American Samoa, the Northern Mariana not awarded Round 1 funding will income patient population and health
Islands, Puerto Rico, and the U.S. Virgin receive funding in Round 2. The care provider shortages to target the
Islands. The Commission then directs Commission also believes that communities where funding is most
USAC, with Bureau and OMD oversight, guaranteeing each state, territory, and needed.
to commit funding to the top-scoring the District of Columbia Round 2 51. Applicants are required to use the
Round 2 application in the states and funding is consistent with the statutory publicly available resources specified in
territories where an application with a goal of nationwide equitable the ‘Round 2 Evaluation Metrics’ table
lead health care provider was awarded distribution of Program funding. The to determine whether they qualify for
Round 1 funding, and to award funding Commission declines to adopt SHLB’s points in any of the application
to the second-ranked application in the proposal to use a ‘‘proportional evaluation metrics, and should also
states where no lead health care allocation of funds based on state and include any information that is
provider received Round 1 funding. If territory population.’’ SHLB Comments, necessary to verify these factors on their
there is more than one application with WC Docket No. 20–89, at 4. The applications. Applicants must also
the same highest or second-highest total application process adopted in the RO certify, under penalty of perjury, to the
score in a location, then the application provides a simpler solution, and accuracy of their applications, and the
with the highest score for only the four satisfies the CAA requirement. The Commission directs USAC to verify
most valuable metrics, each of which is Commission also declines to adopt UAB these qualifications during the
worth 15 points, will receive the Hospital’s suggestion that the application review process using the
equitable distribution commitment. Commission set aside $250,000 for each same publicly available datasets. The
Those metrics are Hardest Hit, Low- state. UAB Hospital Comments, WC Commission anticipates that, just as in
Income Area, Round 1 Unfunded Docket No. 20–89, at 2–3. Establishing Round 1, many applications will
Applicant, and Tribal Area. an application filing window will allow include multiple health care provider
Applications may have a maximum of USAC to commit funds to applicants of sites, and an eligible health care
60 points across those four metrics, and each state without the Commission provider may only appear on one
the tiebreaker between applications is separately setting aside funds for this application. Applications may only
which application scores higher purpose. Finally, the Commission receive the associated prioritization
considering only those four metrics. declines to adopt Northern Light points once for each factor. In instances
Making this the first tiebreaker reflects Health’s proposal that the Commission in which the application requests
the Commission’s view that the most commits a minimum of three awards to funding for multiple eligible health care
important factors should determine the applicants in each state where an provider sites, and the health care
applicant did not receive funding provider site that qualifies for one or
commitment in the event of identical
more factors is not the lead health care
scores for applications in the same during Round 1. Northern Light Health
provider on the application, the
geographic location. If two or more Comments, WC Docket No. 20–89, at 2.
applicant must provide the information
applications remain tied after While this decision could result in some
of the qualifying health care provider
considering only the four most valuable lower-scoring applications receiving
site, in addition to the lead health care
metrics, then the application with the funding commitments at the outset of
provider’s information, to receive points
highest score only for the next most the Program, the Commission notes that
for that evaluation metric. The
valuable metrics, each worth 10 points: applications with lead health care
Commission directs USAC not to award
Critical Access Hospital; Federally providers in 47 states, the District of
points to applicants that do not include
Qualified Health Center, Federally Columbia, and Guam received Round 1
sufficient information on their
Qualified Health Center Look-Alike, or funding without separate prioritization, application.
Disproportionate Share Hospital; and and the Commission anticipates a 52. Confirming Eligibility of
Healthcare Provider Shortage Area, will similar geographic distribution of Requested Services and Devices.
receive the equitable distribution Round 2 applications. Consistent with the review process
commitment. Applications may get a 50. Pre-Existing Strain. In the Public established in Round 1, the Commission
total of 30 points from those three Notice, DA 21–14 the Commission directs USAC to conduct an eligibility
metrics, and the next tiebreaker between sought comments on whether to review of the services and devices
applications is which application scores prioritize health care providers that are applicants request on their applications.
higher among those three metrics. This experiencing pre-existing strain, which, This review is an important safeguard
will result in funding for at least two the Commission said, could include and allows the Commission to ensure
applications with lead health care ‘‘providing care for a large underserved that funding awards are based on the
providers in each state, territory, or the or low-income patient population, cost of eligible services and devices,
District of Columbia across both rounds facing health care provider shortages, or which in turn ensures funding is
of the Program, if such applications dealing with rural hospital closures.’’ available to as many health care
exist. While some commenters supported providers as possible. Moreover, as
49. The Commission believes that using the metric, most disagreed, and supported by the record, the
committing funding to the top-scoring pointed out that the COVID–19 Commission continues to allow
application in states and territories pandemic has placed many health care applicants who are awarded funds the
where a lead health care provider was providers under significant strain. After flexibility to purchase, in the course of
not awarded Round 1 funding is careful consideration of the record, the implementing their telehealth and
dictated by the statute’s unambiguous Commission declines to use pre-existing connected care programs, any necessary
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18470 Federal Register / Vol. 86, No. 67 / Friday, April 9, 2021 / Rules and Regulations
eligible services and connected devices, services in their applications. During Commission should ‘‘publish a list of
and do not limit them to receiving the Round 1 application process, eligible and ineligible equipment and
funding for only the eligible services applicants were required to answer services to provide applicants with
and connected devices listed in their several questions about the anticipated specific guidance on what may be
applications. Finally, to provide uses and eligibility of their requested requested for reimbursement.’’
applicants with additional clarity services and devices, and they were Commenters largely supported this idea.
regarding the eligibility of various required to submit documentation The Commission agrees, because an
products and services, and to enhance supporting the estimated costs for their eligible services list will help address
the transparency of the application funding requests. As a result of this the concerns of commenters that
review process, the Commission process, efforts by Commission staff to advocated for the Commission to
provides applicants with a list of review each application to determine develop ‘‘guidance on eligible
eligible and ineligible services, attached the eligibility of the services and expenses’’ more generally, and will help
as Appendix B in the RO. devices requested were often hampered applicants prepare better applications
53. Maintaining Flexibility. In the by the lack of adequate information in with this knowledge, which in turn will
Public Notice, DA 21–14 the Bureau the application. Because applicants facilitate USAC’s application review.
sought comments on whether the commonly did not include enough Commenters that opposed the
Commission should continue providing information on their applications about Commission publishing an eligible
applicants that receive funding each of their requested services and services list argued that it may
commitments the flexibility to respond connected devices, reviewers conducted unintentionally exclude services or
to changing circumstances by not substantial outreach to determine what connected devices, that COVID–19 still
limiting them to the vendors, eligible items were being requested and whether presents too rapidly evolving of a
services, and eligible devices identified those items were eligible for funding. situation for there to be a fixed list of
in their applications, as long as the total Commission staff also completed a eligible and ineligible services, and
amount sought for reimbursement does second eligibility review after Round 1 finally that the Commission should only
not exceed the commitment amount. funding awardees filed their publish an ineligible services list to
Commenters unanimously supported reimbursement requests. provide applicants needed flexibility in
the Bureau’s suggestion. Many 55. The record was mixed in response their applications.
commenters noted that this flexibility to the Bureau’s suggestion to only 57. To address these concerns, the
provided significant help to funding require applicants to demonstrate the Commission used the experience from
recipients in Round 1. Other eligibility of services and connected
Round 1 to develop an eligible services
commenters explained that this policy devices during the reimbursement
list, attached as Appendix B in the RO,
was still necessary because the COVID– phase. The Commission concludes,
that is broad enough to provide
19 pandemic continued to present a however, that conducting this eligibility
illustrative guidance on eligible
rapidly changing and evolving situation review during the invoicing review
telecommunications services,
for health care providers to manage, and process, including requiring applicants
information services, and connected
still other commenters specified that to provide supporting documentation
devices applicants may include in their
they expect to continue facing with their applications, is in the public
applications. This approach provides
equipment shortages. The Commission interest. Therefore, to promote the
stakeholders with the flexibility needed
maintains this policy from Round 1 integrity of each funding award and to
because the Commission believes that ensure that COVID–19 Telehealth to respond to rapidly evolving
providing funding recipients this Program funds are distributed in a situations. The eligible services list also
flexibility will allow them to best fiscally responsible manner, Round 2 includes guidance on ineligible services.
provide care for their patients in applicants are still required to submit Moreover, the Commission will
response to the COVID–19 pandemic. information about the continue to allow applicants to
However, consistent with the telecommunications services, substitute eligible services and
Commission’s process in Round 1, the information services, and connected connected devices prior to seeking
Commission directs USAC, subject to devices that they anticipate purchasing reimbursement, which provides
Bureau oversight, to review the using Program funds, along with adequate flexibility to account for the
eligibility of each service or connected documentation supporting the estimated challenging conditions that the COVID–
device that a funding awardee proposes costs for their requests with their 19 pandemic has created.
to substitute at the reimbursement applications. However, the Commission 58. The Commission makes no
request stage to ensure that Program directs USAC to work with the Bureau, additional changes to the types of
funds are used only for authorized to the extent feasible, to improve the services and connected devices eligible
purposes. As part of this review, the process by which reviewers determine under the Program. A number of
Commission permits USAC to request a the eligibility of the services and commenters requested the Commission
brief explanation from a funding connected devices requested. The make additional services or devices
awardee about the reason for the Commission believes the process will be eligible for funds, such as
substitution and/or an explanation on improved by requiring applicants to administrative costs or indirect costs.
how the substituted items are eligible. provide itemized lists of products and The Commission notes that the CARES
54. Funding Request Review. The services, specifying quantity and cost Act directs Program funding to
Bureau also sought comment in the for each, on their application. As part of ‘‘telecommunications services,
Public Notice, DA 21–14 on whether, if this effort, the Commission also directs information services, and devices
the Commission maintained this USAC to include in its outreach necessary to enable the provision of
flexibility for applicants, the program guidance on the eligible telehealth services’’ during the
Commission should also streamline the services and connected devices and pendency of the COVID–19 pandemic,
application process by eliminating the tutorials on filling out the application. and, thus, the Commission is prohibited
requirement that applicants submit 56. Eligible Services List. In the Public from expanding the services and
supporting documentation on the Notice, DA 21–14 the Bureau also equipment that are eligible for Program
eligibility of connected devices and sought comments on whether the funding during Round 2.
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59. The Commission directs USAC, months of eligible recurring services, of geographic location of the lead health
subject to Bureau oversight, to review but allowed applicants to request care provider.
the services and equipment listed on reimbursement for annual license 63. Equitable Distribution. USAC will
each application, and award only as agreements because of the one-time, up- first, as discussed in the preceding,
much funding as is supported by the front nature of those costs. The commit funding to the highest-scoring
application and associated Commission now anticipates that health application with a lead health care
documentation. The CAA appropriated care providers will likely continue to provider in a state or territory that did
additional funding to the Program, but rely on telehealth and connected care not have an application with a lead
is silent regarding the eligibility of services as a critical means of health care provider from that state or
services and devices eligible for the addressing the COVID–19 pandemic territory receive Round 1 funding. Next,
additional funding. Under the CARES through at least a good portion of 2022. USAC will commit funding to the
Act, the Program awards funds to Accordingly, for Round 2, applicants highest scoring application from each
eligible health care providers to support may receive Program funding to support state, territory, and the District of
the purchase of ‘‘telecommunications up to 12 months of eligible recurring Columbia, in which a lead health care
services, information services, and services as well as eligible annual provider applicant from that geographic
devices necessary’’ to provide telehealth license agreements (only one one-year location did receive Round 1 funding.
and connected care in response to the term will be funded). This change will Finally, USAC will commit funding to
COVID–19 pandemic. Because the also provide more certainty to the second-highest-scoring application
Program is a ‘‘Federal subsidy made applicants and reduce confusion about with a lead health care provider in a
available through a program the funding period. state or territory that did not have an
administered by the Commission,’’ 61. Funding Commitment Process. application with a lead health care
program funding may not be used to Funding for Round 2 of the Program provider from that state or territory
‘‘purchase, rent, lease, or otherwise will be awarded in two phases in order receive Round 1 funding.
obtain any communications equipment to satisfy the statutory requirement that 64. Highest-Scoring Applications.
or service . . . identified and published applicants be given an opportunity to After ensuring that funding is
on the Covered List.’’ See Protecting provide additional information if their committed across all states, territories,
Against National Security Threats to the application is going to be denied, and in and the District of Columbia, USAC,
Communications Supply Chain Through recognition that funding commitments with oversight from the Bureau and
FCC Programs, WC Docket No. 18–89, must be awarded as soon as possible. In OMD, will then begin to commit
Second Report and Order, 35 FCC Rcd the initial commitment phase, at least funding to the highest-scoring
14284, 14326, paras. 94–95 (2020); see $150 million will be awarded to the applications, in descending order, until
highest-scoring applicants. Once the at least $150 million has been
also 47 CFR 54.10; Public Safety and
initial group of awardees is identified, committed in the initial commitment
Homeland Security Bureau Announces
applications outside that group will be window. As an example, if $10 million
Publication of the List of Equipment and
provided a ten-day period to was awarded during the equitable
Services Covered by Section 2 of the
supplement their application. After that distribution step of the initial
Secure Networks Act, WC Docket No.
ten-day period, USAC will re-rank the commitment window, when funding
18–89, Public Notice, DA 21–309
remaining applications and award the commitments are awarded in each state,
(PSHSB Mar. 12, 2021, 86 FR 2904,
remaining funding in the final territory, and the District of Columbia,
January 13, 2021). Consistent with
commitment window. Bifurcating the there would be at least $140 million
Round 1, the Commission interprets this
funding awards allows the Commission available for the highest-scoring
language to include only connected applications. Once $150 million in
to expeditiously commit funding to the
devices (e.g., Bluetooth-enabled pulse- funding has been committed, any
highest-scoring applicants while
oximeters or remote blood pressure applications with the same score as the
simultaneously complying with the
monitoring devices). Personnel costs, last application to receive a funding
statutory language requiring the
marketing costs, administrative commitment will also receive a funding
Commission to provide applicants an
expenses, or training costs continue to commitment, and the remaining
opportunity to supplement their
be ineligible for Program funding. appropriated funds will be rolled over
applications.
Program funding may be used to 62. Initial Commitments. The into the final commitment window.
support connected care services and Commission directs USAC, subject to Once the initial commitment awardees
devices, but may not be used to support Bureau and OMD oversight, to award at have been determined, the Commission
the development of new websites, least $150 million during the initial directs the Bureau to issue a Public
systems, or platforms. Applicants may commitment phase. After the Notice announcing those awardees, the
apply to receive retroactive funding for application filing window closes, USAC amount of their awards, and the
eligible services and devices purchased will score each application using the remaining funding available for the final
on or after March 13, 2020, so long as metrics the Commission adopts in the commitment window.
they did not receive Round 1 funding preceding. After the applications are 65. Notifications of Intent to Deny and
for those eligible services and devices. scored, USAC will rank all of the Opportunity to Supplement. Upon the
Any services must have been purchased applications in descending order by the Bureau’s release of the Public Notice
in response to the COVID–19 pandemic, score assigned to each application. The identifying the eligible health care
but can include pandemic-related initial funding commitments will then providers awarded funding during the
upgrades to existing services. be made in two steps: The first equitable initial commitment phase, the
60. The Commission next addresses distribution step, as required by the Commission directs USAC, with
how long applicants may receive CAA, will ensure that applications with oversight from the Bureau, to issue
funding for eligible recurring services. lead health care providers in every state, notices of intent to deny to all Round 2
During Round 1, having uncertainty as territory, and the District of Columbia applications that did not receive
to how long the pandemic would last, are awarded funding commitments. The funding awards during the initial
the Commission allowed applicants to second step will award funding to the commitment phase. In the CAA,
request reimbursement for up to six highest-scoring applications regardless Congress directs the Commission to
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18472 Federal Register / Vol. 86, No. 67 / Friday, April 9, 2021 / Rules and Regulations
‘‘issue notice to the applicant of the during the initial commitment phase. The Commission directs USAC to
intent of the Commission to deny the This process will include an evaluation respond to any questions from health
application and the grounds for that of all remaining unfunded Round 2 care providers regarding Round 2,
decision’’ for any application the applications, regardless of whether an including, but not limited to, questions
Commission chooses to deny and to applicant has chosen to supplement its about the eligibility and application
‘‘provide the applicant with 10 days to application. After the applications are processes, application status, funding
submit any supplementary information re-scored, the Commission directs awards, and request for reimbursement
that the applicant determines relevant,’’ USAC, with oversight from the Bureau process.
which must be taken into account for and OMD, to document the commitment 71. Outreach to Tribal Communities.
the final funding decisions. of the remaining Round 2 funding to the American Indians and Alaska Natives
Accordingly, each notice will include a highest scoring eligible applications (AI/AN) are among the racial and ethnic
denial justification so that the applicant with eligible funding requests, in minority groups at highest risk from
may know why its application was not descending order by score, until there is COVID–19. The CDC found that in 23
funded during the initial commitment insufficient funding available. selected states, the cumulative
phase. The Commission notes, that 68. If there are insufficient remaining incidence of laboratory-confirmed
while required by statute to send every funds to award the final eligible, COVID–19 cases among cases among AI/
applicant that does not receive funding qualifying application with the highest AN was 3.5 times that of non-Hispanic
during the initial window a notice of the remaining prioritization score the whites. To address these issues, the
Commission’s intent to deny their entirety of its funding request, the Commission directs USAC to also focus
application, some of those applicants application will receive the remaining its outreach efforts on Tribal
will ultimately receive funding. The funds in the Program. In the event there communities and health care providers
Commission directs the Bureau to is more than one eligible, qualifying in those areas.
provide guidance on how applicants application with the same highest 72. The Commission also directs
may supplement their applications in remaining prioritization score, the USAC to coordinate with the
the Public Notice announcing the remaining funds will be split Commission’s Consumer and
winners from the initial commitment proportionally among each application Governmental Affairs Bureau and its
phase. As provided in the statute, in this final scoring tier. The Office of Native Affairs and Policy, as
applicants will have ten days from the Commission believes that this is the necessary, to promote and announce
date that this Public Notice is issued to fairest approach to distributing the Round 2 of the Program throughout
supplement their applications. The remaining funds to these applicants. Tribal health care communities. The
Commission directs USAC to consider Because this will result in the remaining Commission directs USAC to use its
the supplemental information before applicants each receiving a partial Tribal Liaison to assist with Tribal-
issuing the remaining funding awards. award of funds, the Commission expects specific outreach, training, and
66. The Commission stresses, the Bureau to work with affected assistance for Round 2. The Tribal
however, that it is important for applicants to determine if the proposed Liaison should provide direct
applicants to accurately fill out their commitment meets the needs of the communication with Tribal health care
applications at the time of initial applicant and if the applicant is still providers throughout the application
submission, before they have an interested in receiving a portion of the and invoicing processes, help conduct
opportunity to supplement them. If an requested Program support. and coordinate Tribal-specific trainings
applicant supplements its application 69. Finally, the Commission directs and training materials, and field
and receives a score that would have the Bureau and OMD to release a second questions from Tribal health care
qualified it for funding during the initial Public Notice announcing the final list providers. By directing USAC to
funding window, the initial funding of awardees and funding commitments leverage the existing connections of its
commitments will not change and that from both phases. Additionally, the Tribal Liaison, the Commission helps
application will only be eligible to Commission directs USAC, with ensure that Tribal health care providers
receive funding during the final oversight from the Bureau, to issue final can fully participate and effectively
commitment window to the extent there denials to each unfunded Round 2 access funding during Round 2.
are remaining funds. If an applicant applicant providing the justification for 73. Round 2 Invoicing and
determines that they made an error on the denial of its application. Dibursements. Invoicing and
their application and this has resulted 70. Round 2 Outreach. The Disbursements. The Commission directs
in an incorrectly high prioritization Commission remains committed to USAC, with Bureau and OMD oversight,
score, however, they are responsible for helping health care providers address to use the same reimbursement structure
notifying the Commission as soon as the COVID–19 pandemic as demand for for Round 2 as was used for Round 1.
they discover the error, and the funding telehealth and connected care services The Commission concludes that using
that was awarded to that applicant may increases, and the Commission believes the same reimbursement structure will
be made available during the final that coordination and outreach with allow the use of the existing invoicing
commitment phase, or at a later point. health care providers before the systems, processes, and procedures
67. Final Commitment. After the 10- application filing window opens will already in use for Round 1. The current
day period during which unfunded improve the overall efficacy of Round 2 system is effective, and it would be
Round 2 applicants may supplement of the Program. Upon release of the RO, impractical to expend limited resources
their applications, the Commission to ensure that health care providers are to develop an entirely new invoicing
directs USAC, subject to Bureau aware of the available funding under the system, processes, and procedures
oversight, to review any supplemental Round 2 of the Program, the solely for Round 2. Accordingly, Round
information submitted during the 10- Commission directs USAC to coordinate 2 funding recipients must submit their
day period for each applicant, make with the FCC’s Connect2Health Task requests for reimbursement, and any
changes to prioritization scores as Force, as necessary, to promote and necessary subsequent filings (to include
necessary, and re-rank the unfunded announce Round 2 to interested any information necessary to satisfy the
Round 2 applications according to the stakeholders, including service Commission’s oversight responsibilities
same prioritization scoring metrics used providers and health care providers. and/or agency-specific/government-
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Federal Register / Vol. 86, No. 67 / Friday, April 9, 2021 / Rules and Regulations 18473
wide reporting obligations associated in the reimbursement requests for the and disbursement rules associated with
with the appropriation by Congress) Program. To guard against potential the Debt Collection Improvement Act,
through the Invoice Processing Platform waste, fraud, and abuse, the the Commission may withhold action
(IPP), which is part of the U.S. Commission reiterates that participating on applications and requests made by
Department of the Treasury’s Bureau of health care providers are prohibited any entity found to be delinquent in its
Fiscal Services. Funding recipients must from selling, reselling, or transferring debt to the Commission until full
first pay the vendor or service provider services or devices funded through the payment or resolution of such debt. This
for the costs of the eligible services and/ Program in consideration for money or is commonly referred to as the
or connected devices received before any other things of value. Moreover, the Commission’s ‘‘red light’’ rule. For
requesting reimbursement for those Commission reminds applicants that Round 1 of the Program, OMD and the
costs from the COVID–19 Telehealth they shall not use Program funding to Bureau found that it was in the public
Program. The Commission declines to pay for the non-discount share of interest and good cause existed to waive
adopt the suggestion that the services purchased under the Rural the ‘‘red light’’ rule because of the
Commission allows applicants to access Healthcare Program. Finally, the extremely unusual circumstances the
committed funds prior to first Commission reminds applicants that COVID–19 pandemic presented for
purchasing the eligible services and they must certify, under penalty of health care providers. The Commission
connected devices and request perjury, that they have not received and finds that this reasoning remains true
reimbursement. See Elite Program may not receive duplicative funding for today; therefore, the Commission
Comments, WC Docket No. 20–89, at 4; the same services from state, local, or continues the waiver of the
Mount Sinai Comments, WC Docket No. federal sources twice. For example, Commission’s ‘‘red light’’ rule for
20–89, at 4; SHLB Comments, WC applicants may not receive funding from Round 2 applicants. As with Round 1,
Docket No. 20–89, at 9. The Commission both the Program and the Connected the Commission do not expect there to
also declines to adopt the suggestion to Care Pilot Program for the same services be a large number of applicants to the
use ‘‘a two-phased approach, wherein a or connected devices. Applicants must Program that are delinquent in their
smaller amount of initial seed funding agree to withdraw their Round 2 debt to the Commission, and the
is provided with continued support application if they receive duplicative Commission reiterates that this waiver
predicated on meeting performance funding from another source. is limited to COVID–19 Telehealth
goals or other milestones.’’ Hudson 75. In reviewing requests for Program applicants. This waiver does
Headwaters Health Comments, WC reimbursement, USAC shall ensure that not affect the Commission’s right or
Docket No. 20–89, at 4. The Commission funding is only awarded after receiving obligation to collect any debt owed by
is mindful of the responsibility to documentation that demonstrates the an applicant by any other means
prevent waste, fraud, and abuse of eligibility of the requested items and available to the Commission, including
Program funding, and the Commission substantiates the cost of those items. by referral to the U.S. Treasury for
believes that verifying each applicant’s USAC will review the request for collection.
purchase of eligible services and reimbursement forms along with all 77. Post-Program Reporting and
connected devices prior to supporting documentation, and approve Feedback. Throughout the RO, the
reimbursement is an important part of requests for reimbursement for eligible Commission reviewed stakeholder
this responsibility. The COVID–19 items that are supported by invoice comments as guideposts for the
documentation. The Commission directs decisions related to the
Telehealth Program will not directly pay
USAC not to accept requests for telecommunications services,
a health care provider’s service
reimbursement that do not contain the information services, and connected
providers or vendors.
required certifications as part of the devices needs of eligible health care
74. Upon receipt of services and/or Request for Reimbursement Form to providers and their ability to obtain
connected devices and subsequent ensure that Program funds are used for those services to assist their patients
payment by the health care provider(s) their intended purpose. The throughout this pandemic. The
of the costs of the eligible services and/ Commission delegates to the Bureau, in Commission adopts reporting
or connected devices to the service coordination with OMD, the authority to obligations for USAC and for COVID–19
provider or vendor, a funding recipient make changes to the Request for Telehealth Program Round 2
shall submit its requests for Reimbursement Form that was used in participants that will enable the
reimbursement and supporting COVID–19 Telehealth Program Round 1 Commission to measure the funding
documentation to receive to facilitate Program administration and impact. While the Commission
reimbursement for the cost of the to better track expenditures under the identifies specific reporting obligations,
eligible services and/or devices they COVID–19 Telehealth Program. the Commission delegates authority to
have received from their applicable Pursuant to section 903(e) of the CAA, the Bureau, in coordination with OMD,
service providers or vendors under the the collection of information sponsored to finalize the format of those reporting
Program. Applicants that distribute or conducted under the regulations obligations. In doing so, OMD and the
Program funding to other health care promulgated in the RO is deemed not to Bureau will ensure that such reporting
provider sites must submit Letter(s) of constitute a collection of information for satisfies the CARES Act oversight
Authorization with their request for the purposes of the Paperwork provisions incorporated by Congress by
reimbursement form to demonstrate that Reduction Act, 44 U.S.C. 3501–3521. reference in the CAA.
the lead health care provider has been Accordingly, any changes made to the 78. The Commission further directs
given permission to distribute the Request for Reimbursement Form for USAC to collect, within six months after
requested funding to the other health Round 2 do not require PRA approval. the conclusion of the COVID–19
care provider sites listed on its 76. Red Light Rule. Additionally, the Telehealth Program Round 2, feedback
application. The Commission Commission finds that it remains in the on the Program from Round 2 funding
emphasizes that Program funds shall public interest, and good cause still awardees. This deadline will be
only be used for services and devices exists, to waive the Commission’s ‘‘red calculated from the invoice filing
eligible under the CARES Act. The cost light’’ rule with respect to applications deadline for Round 2. The Commission
of ineligible items must not be included to the Program. As part of the collection directs the Bureau to issue a Public
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18474 Federal Register / Vol. 86, No. 67 / Friday, April 9, 2021 / Rules and Regulations
Notice announcing the post-program audit procedures at a later date. In year. 31 U.S.C. 7502; 31 CFR 200.501
feedback report deadline and to provide addition, the Section 903 appropriation, (2020).
a reporting template and instructions on like all other Division N appropriations, 81. Administrative Procedure Act
how to submit the final reports for is subject to the same oversight Exception. The Administrative
Round 2 funding. After collecting this provisions included in the CARES Act, Procedure Act (APA) provides that with
feedback, USAC shall provide a report Consolidated Appropriations Act, 2021, a showing of ‘‘good cause,’’ an agency
to the Commission in a format to be H.R. 133, div. O, tit. VIII—Pandemic is permitted to make rules effective
approved by the Bureau on the Response Accountability Committee before 30 days after publication in the
effectiveness of the COVID–19 Amendments Section 801, Amendment Federal Register. ‘‘In determining
Telehealth Program funding on health to the Pandemic Response whether good cause exists, an agency
outcomes, patient treatment, health care Accountability Committee (2020). OMB should ‘balance the necessity for
facility administration, benefits from guidance on such provisions also immediate implementation against
services and connected devices on continues to apply. In this regard, the principles of fundamental fairness
patients treatments and outcomes, Commission notes that in Round 1 the which require that all affected persons
administration, and health care Commission leveraged audits conducted be afforded a reasonable amount of time
providers overall expanded telehealth under the Single Audit Act to oversee to prepare for the effective date of its
programs, and any other relevant the program. ruling.’ ’’ As a general matter, the
aspects of the COVID–19 pandemic. 80. To that end, the Commission Commission believes that the APA
Such information could include: requirements are an essential
delegates authority to OMD to develop
Feedback on the application and component of the rulemaking process.
and implement an audit process of
invoicing processes; a description of In this case, however, because of the
participating health care providers that
how funding was helpful in providing unprecedented nature of this pandemic
complies with the requirements and
or expanding telehealth services, and the need for immediate action, the
procedures of the COVID–19 Telehealth
including anonymized patient accounts; Commission finds there is good cause to
Program. OMD may obtain the
a description of how funding promoted make the Program rules effective April
assistance of third parties, including but
innovation and improved health 9, 2021. In light of the continued spread
not limited to USAC, in carrying out
outcomes; and other areas for of COVID–19 and the increasing need to
this effort. Consistent with the
improvement. The Commission address this public health crisis, any
experience with the Universal Service further delay in the use of these funds
delegates authority to the Bureau to Fund, the Commission finds that audits
update the Post-Program Feedback to assist health care providers in
are the most effective way to ensure meeting the health care needs of their
Report Template based on its experience compliance with the rule requirements.
with Round 1 Post-Program Feedback patients could impede efforts to mitigate
Funding recipients are required to the spread of the disease. Waiting an
Reports. The Commission directs the maintain documentation sufficient to
Bureau to provide specific information additional 30 days to make this relief
demonstrate their compliance with available ‘‘would undermine the public
about how to provide feedback, and program rules for six years after the last
associated deadlines, to Round 2 interest by delaying’’ much needed
date of delivery of services or connected expansion of telemedicine resources.
funding recipients. This information devices supported through the COVID–
will assist Commission efforts to 19 Telehealth Program. Upon request, III. Order on Reconsideration
respond to pandemics and other COVID–19 Telehealth Program 82. On April 9, 2020, the American
national emergencies in the future. participants must submit documents Hospital Association (AHA) filed a
Pursuant to section 903(e) of the CAA, sufficient to demonstrate compliance Petition for Partial Reconsideration of
the collection of information sponsored with Program rules, including, at a the Commission’s C19–RO. AHA’s
or conducted under the regulations minimum, applications, contracts, petition was limited to the
promulgated in the RO is deemed not to communications related to Program Commission’s decision to limit
constitute a collection of information for services, invoices, delivery records, and eligibility in the Program to the
the purposes of the Paperwork purchase and receipt records. statutorily enumerated providers who
Reduction Act, 44 U.S.C. 3501–3521. Additionally, certain health care are eligible for the Rural Health Care
Accordingly, any changes made to the providers participating in the COVID–19 Program. More specifically, AHA’s
Post-Program Feedback Report for Telehealth Program that meet the petition sought to extend Program
Round 2 do not require PRA approval. thresholds for being audited under the eligibility to ‘‘all types of hospitals and
79. Audits. While the Commission Single Audit Act are subject to a single other direct patient care facilities
seeks to ease the burdens upon audit that contains the FCC compliance regardless of their size, location or for-
applicants and service providers, the supplement for the COVID–19 profit or not-for-profit status.’’ Several
Commission is mindful of the Telehealth Program. For health care commenters filed responses in support
commitment to ensure the Program’s providers subject to a single audit, the of the petition.
integrity by protecting against waste, CFDA number for the COVID–19 83. The Commission concludes that
fraud, and abuse. The Commission Telehealth Program is 32.006. The granting the petition for reconsideration
believes that proper documentation is Single Audit Act is codified, as would be contrary to the public interest
crucial for demonstrating health care amended, at 31 U.S.C. 7501–06, and and that the decision here is consistent
providers’ compliance with the COVID– implementing Office of Management with Congressional intent. Accordingly,
19 Telehealth Program rules, and for and Budget (OMB) guidance is reprinted the Commission denies the petition. In
uncovering waste, fraud, and abuse in in 2 CFR part 200 (2020). Federal award the CARES Act, Congress gave the
the Program, whether through recipients that expend $750,000 or more Commission the authority to rely on its
compliance audits or investigations. The in federal awards in a fiscal year are already-existing rules to administer
Commission’s Office of Inspector required to undergo a single audit, Round 1 of the Program, and, consistent
General was allocated Program funds to which is an audit of an entity’s financial with that authority, the Commission
provide oversight, and the Commission statements and federal awards, or a adopted the definition of ‘‘health care
will provide further guidance about program-specific audit, for the fiscal provider’’ as set out in the
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Federal Register / Vol. 86, No. 67 / Friday, April 9, 2021 / Rules and Regulations 18475
Communications Act and the and that those providers are ‘‘public’’ by Congress and the Government
Commission’s rules. The Commission nature of their obligation to treat all Accountability Office pursuant to
reached this conclusion because it was emergency patients. The Commission 801(a)(1)(A).
consistent with both the finds these arguments unpersuasive.
Communications Act and the CARES The Commission’s previous conclusion V. Ordering Clauses
Act, and because it would help to that emergency departments of for-profit 89. Accordingly, it is ordered that,
‘‘ensure that funding is targeted to hospitals that participate in Medicare pursuant to the authority contained in
health care providers that are likely to can participate in the Rural Health Care
sections 201, 254, 303(r), and 403 of the
be most in need of funding to respond Program reflected a careful balance of
to this pandemic while helping us Communications Act of 1934, as
multiple considerations, and those same
ensure that funding is used for its amended, 47 U.S.C. 201, 254, 303(r),
emergency departments remain eligible
intended purposes.’’ The Commission for the Program as well. Similarly, while and 403, DIVISION B of the Coronavirus
reaches the same conclusion, and the Commission acknowledges the Aid, Relief, and Economic Security Act,
conclude that directing Program funding important role played by smaller Public Law 116–136, 134 Stat. 281, and
away from non-profit providers would hospitals who operate as part of a larger DIVISION N of the Consolidated
be contrary to the public interest. health care system, the Commission Appropriations Act, 2021, Public Law
84. In limiting eligibility of health notes that by definition these smaller 116–260, 134 Stat. 1182, the Report and
care providers under the Universal hospitals have available to them the Order and Order on Reconsideration is
Service Fund (USF) to certain categories resources of a larger, for-profit health adopted.
of health care providers, Congress care system. Finally, Congress has had 90. It is further ordered that, pursuant
effectively expressed its view that these occasion as recently as 2016 to revisit to the authority contained in section
providers were those most in need of the health care providers who should be 808(2) of the Congressional Review Act,
USF support. Accordingly, the eligible for the Rural Health Care
Commission has limited RHC Program 5 U.S.C. 808(2), and 5 U.S.C. 553(d), the
program, and to date it has not included Report and Order and Order on
support to these entities. Similarly, for-profit hospitals as eligible. While the
during this pandemic, the Commission Reconsideration shall become effective
Commission does not dispute that all April 9, 2021.
has no reason to conclude that these health care providers have been
providers are not also the most in need impacted by the COVID–19 pandemic, 91. It is further ordered that the
of support for telehealth. Particularly that does not alter the conclusion that Commission shall send a copy of the
where the demand for these COVID–19 limited funding is best directed towards Report and Order to the appropriate
telehealth funds is much greater than those entities listed by Congress in Congressional Committees identified in
availability, as it was in Round 1, the section 254(h)(7)(B) of the the Consolidation Appropriations Act to
Commission reiterates the conclusion Communications Act of 1934 as provide notice of the application
that it is in the public interest to limit amended. evaluation metrics.
eligibility to those entities listed by
Congress in section 254(h)(7)(B) of the IV. Procedural Matters 92. It is further ordered that the
Communications Act, as amended, Commission shall send a copy of the
A. Paperwork Reduction Act Analysis Report and Order to Congress and the
including the limitation to not-for-profit
hospitals. 87. Pursuant to section 903(e) of the Government Accountability Office
85. This conclusion is bolstered by Consolidated Appropriations Act, the pursuant to the Congressional Review
recent Congressional action through the collection of information sponsored or Act, see 5 U.S.C. 801(a)(1)(A).
CAA, when Congress appropriated conducted under the regulations
93. It is further ordered that, pursuant
additional funding for a second round of promulgated in this Report and Order is
to sections 4(i) and 405 of the
the Program. By directing these funds to deemed not to constitute a collection of
information for the purposes of the Communications Act of 1934, as
‘‘the COVID–19 Telehealth Program
Paperwork Reduction Act, 44 U.S.C. amended, 47 U.S.C. 154(i), 405, and
established by the Commission’’ under
the authority of the CARES Act, without 3501–3521. § 1.429 of the Commission’s rules, 47
modifying the eligibility requirements, CFR 1.429, the Petition for Partial
B. Congressional Review Act Reconsideration filed by the American
Congress indicated that it saw no need
to change these requirements, especially 88. The Commission has determined, Hospital Association is denied.
in light of the fact that Congress chose and the Administrator of the Office of Federal Communications Commission.
to mandate a number of other changes Information and Regulatory Affairs,
Marlene Dortch,
to the Program. Office of Management Budget (OMB),
concurs that the rules implementing the Secretary.
86. AHA argues that the COVID–19
pandemic has financially impacted all COVID–19 Telehealth Program are [FR Doc. 2021–07370 Filed 4–8–21; 8:45 am]
health care providers, and that many ‘‘major’’ under the Congressional BILLING CODE 6712–01–P
smaller hospitals operate as part of a Review Act, 5 U.S.C. 804(2). Because
larger health care system, which could the Commission finds good cause that
also render these hospitals ineligible for compliance with the notice and public
the Program. Additionally, AHA argues procedure requirements of the
that because the Commission has Administrative Procedure Act on the
previously ‘‘determined that emergency rules adopted herein is impracticable,
departments of for-profit hospitals that unnecessary, or contrary to the public
participate in Medicare should be interest, the Report and Order and Order
deemed ‘public’ health care providers on Reconsideration will become
within the meaning of section effective April 9, 2021 pursuant to 5
254(h)(7)(B) of the Communications U.S.C. 808(2). The Commission will
Act,’’ it has previously acknowledged send a copy of the the Report and Order
the importance of for-profit hospitals, and Order on Reconsideration to
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