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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).

Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used

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/, SHA-256 7403e1ed375e107b1e9d7cf34aa89d7e9ae226c13ba60b83201cbbb945cfccfa.

Full text

                           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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     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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                           Federal Register / Vol. 86, No. 67 / Friday, April 9, 2021 / Rules and Regulations                                        18471

        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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