[Federal Register Volume 76, Number 123 (Monday, June 27, 2011)]
[Proposed Rules]
[Pages 37307-37309]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-16060]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 54

[WC Docket No. 02-60; FCC 11-101]


Rural Health Care Support Mechanism

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: In this document, the Federal Communications Commission 
(Commission) seeks comment on whether to make the ``grandfathered'' 
providers permanently eligible for discounted services under the rural 
health care program. Grandfathered providers do not currently qualify 
as ``rural,'' but play a key role in delivering health care services to 
surrounding regions that do qualify as ``rural'' today. Thus, we take 
these actions to ensure that health care providers located in rural 
areas can continue to benefit from connecting with grandfathered 
providers, and thereby provide health care to patients in rural areas.

DATES: Comments are due on or before July 27, 2011 and reply comments 
on or before August 11, 2011.

ADDRESSES: You may submit comments, identified by WC Docket No. 02-60, 
by any of the following methods:
     Federal Communications Commission's Web Site: http://fjallfoss.fcc.gov/ecfs2/. Follow the instructions for submitting 
comments.
     Mail: In addition, one copy of each paper filing must be 
sent to each of the following: (i) the Commission's copy contractor, 
Best Copy and Printing, Inc. (BCPI), Portals II, 445 12th Street, SW., 
Room CY-B402, Washington, DC 20554, (202) 488-5300 or via e-mail to 
[email protected]; (ii) Chin Yoo, Telecommunications Access Policy 
Division, Wireline Competition Bureau, 445 12th Street, SW., Room 5-
A441, Washington, DC 20554, e-mail: [email protected]; and (iii) Charles 
Tyler, Telecommunications Access Policy Division, Wireline Competition 
Bureau, 445 12th Street, SW., Room 5-A452, Washington, DC 20554, e-
mail: [email protected].
     People with Disabilities: Contact the FCC to request 
reasonable accommodations (accessible format documents, sign language 
interpreters, CART, etc.) by e-mail: [email protected] or phone: 202-418-
0530 or TTY: 202-418-0432.

For detailed instructions for submitting comments and additional 
information on the rulemaking process, see the SUPPLEMENTARY 
INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: Chin Yoo, Attorney, Wireline 
Competition Bureau, (202) 418-0295 or TTY: (202) 418-0484.

SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's 
Notice of Proposed Rulemaking (NPRM) in WC Docket No. 02-60, FCC 11-
101, adopted June 20, 2011, and released June 21, 2011. This Notice of 
Proposed Rulemaking was also released with a companion Order (Order). 
The complete text of this document is available for inspection and 
copying during normal business hours in the FCC Reference Information 
Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 
20554. The document may also be purchased from the Commission's 
duplicating contractor, Best Copy and Printing, Inc., 445 12th Street, 
SW., Room CY-B402, Washington, DC 20554, telephone (800) 378-3160 or 
(202) 863-2893, facsimile (202) 863-2898, or via the Internet at http://www.bcpiweb.com. It is also available on the Commission's Web site at 
http://www.fcc.gov.
    Pursuant to sections 1.415 and 1.419 of the Commission's rules, 47 
CFR 1.415, 1.419, interested parties may file comments and reply 
comments on or before the dates indicated on the first page of this 
document. All filings related to the NPRM should refer to WC Docket No. 
02-60. Comments may be filed using the Commission's Electronic Comment 
Filing System (ECFS). See Electronic Filing of Documents in Rulemaking 
Proceedings, 63 FR 24121, May 1, 1998.
     Electronic Filers: Comments may be filed electronically 
using the Internet by accessing the ECFS: http://fjallfoss.fcc.gov/ecfs2/.
     Paper Filers: Parties who choose to file by paper must 
file an original and one copy of each filing. If more than one docket 
or rulemaking number appears in the caption of this proceeding, filers 
must submit two additional copies for each additional docket or 
rulemaking number. Filings can be sent by hand or messenger delivery, 
by commercial overnight courier, or by first-class or overnight U.S. 
Postal Service mail. All filings must be addressed to the Commission's 
Secretary, Office of the Secretary, Federal Communications Commission.
     All hand-delivered or messenger-delivered paper filings 
for the Commission's Secretary must be delivered to FCC Headquarters at 
445 12th St., SW., Room TW-A325, Washington, DC 20554. The filing hours 
are 8 a.m. to 7 p.m. All hand deliveries must be held together with 
rubber bands or fasteners. Any envelopes must be disposed of before 
entering the building.
     Commercial overnight mail (other than U.S. Postal Service 
Express Mail and Priority Mail) must be sent to 9300 East Hampton 
Drive, Capitol Heights, MD 20743.
     U.S. Postal Service first-class, Express, and Priority 
mail must be addressed to 445 12th Street, SW., Washington, DC 20554.
     In addition, one copy of each paper filing must be sent to 
each of the following: (i) The Commission's copy contractor, Best Copy 
and Printing, Inc. (BCPI), Portals II, 445 12th Street, SW., Room CY-
B402, Washington, DC 20554, (202) 488-5300 or via e-mail to 
[email protected]; (ii) Chin Yoo, Telecommunications Access Policy 
Division, Wireline Competition Bureau, 445 12th Street, SW., Room 5-
A441, Washington, DC 20554, e-mail: [email protected]; and (iii) Charles 
Tyler, Telecommunications Access Policy Division, Wireline Competition 
Bureau, 445 12th Street, SW., Room 5-A452, Washington, DC 20554, e-
mail: [email protected].
    People with Disabilities: To request materials in accessible 
formats for people with disabilities (braille, large print, electronic 
files, audio format), send an e-mail to [email protected] or call the 
Consumer & Governmental Affairs

[[Page 37308]]

Bureau at 202-418-0530 (voice), 202-418-0432 (tty). Contact the FCC to 
request reasonable accommodations for filing comments (accessible 
format documents, sign language interpreters, CART, etc.) by e-mail: 
[email protected]; phone: 202-418-0530 or TTY: 202-418-0432.

I. Introduction

    1. In the accompanying Order, we adopt an interim rule permitting 
health care providers that are located in a ``rural area'' under the 
definition used by the Commission prior to July 1, 2005, and that have 
received a funding commitment from the rural health care program prior 
to July 1, 2005, to continue to be treated as if they are located in 
``rural'' areas for purposes of determining eligibility for all 
universal service rural health care programs. In this Notice of 
Proposed Rulemaking (NPRM), we seek comment on whether to make the 
``grandfathered'' providers permanently eligible for discounted 
services under the rural health care program. Grandfathered providers 
do not currently qualify as ``rural,'' but play a key role in 
delivering health care services to surrounding regions that do qualify 
as ``rural'' today. Thus, we take these actions to ensure that health 
care providers located in rural areas can continue to benefit from 
connecting with grandfathered providers, and thereby provide health 
care to patients in rural areas.

II. Notice of Proposed Rulemaking

    2. In July 2010, the Nebraska Public Service Commission (Nebraska 
PSC) filed a petition requesting that the FCC permanently grandfather 
health care providers that were temporarily grandfathered until 2011. 
In response to the Nebraska PSC petition, the Wireline Competition 
Bureau issued a public notice requesting comment on whether the 
Commission should grant the relief sought by the Nebraska PSC, either 
through permanent grandfather, permanent waiver, or other action, and 
interested parties had an opportunity to respond to the public notice. 
All but one of the commenting parties support permanent grandfathering 
to allow the petitioners and other similarly situated health care 
providers to continue to participate in rural health care programs. 
These parties argue that funding for grandfathered providers promotes 
telemedicine and other uses of broadband for rural health care 
purposes, and describe how rural communities would lose access to key 
health care services if such support were to cease. The parties also 
assert that the Commission should provide certainty and stability by 
granting permanent grandfathering relief rather than setting a pattern 
of piecemeal extensions. The Virginia Telehealth Network states that 
uncertainty about future eligibility limits providers' ability to 
respond to the needs of their patients, take advantage of new 
innovations, and utilize the cost savings of long-term contracts. 
Furthermore, commenters state that permanent grandfathering would 
preserve eligibility for facilities located in areas that remain 
unchanged in their essentially rural character, but whose urban/rural 
designations could shift back and forth based on minor population 
shifts.
    3. We propose to permanently grandfather the approximately 235 
health care providers that are located in a ``rural area'' as defined 
by the Commission prior to July 1, 2005, and received a funding 
commitment from the rural health care program prior to July 1, 2005. 
Under our proposed rule, these health care providers would continue to 
be treated as if they are located in ``rural'' areas for the purposes 
of determining eligibility for all universal service rural health care 
programs.
    4. We seek comment on petitioners' and commenters' assertions that 
permanently grandfathering these providers will promote our goal of 
advancing access to broadband connectivity for health care purposes. We 
believe that discontinuance of discounted services would jeopardize the 
ability of grandfathered providers to continue offering essential 
health care services to rural areas. As noted above, grandfathered 
health care providers are not located in large urbanized areas, and the 
record indicates that grandfathered providers provide valuable services 
to areas identified as experiencing health care shortages. In some 
states, grandfathered health care providers are hub hospitals that play 
a central role in connecting rural providers and patients to a 
statewide or regional telehealth network. We believe that a permanent 
grandfather is consistent with our broad discretion to define the term 
``rural.''
    5. We seek comment on whether this is the appropriate time to 
permanently extend eligibility for grandfathered providers. In the 
Second Report and Order, 70 FR 6365, February 7, 2005, the Commission 
grandfathered these providers in order to ease the transition to the 
new definition of ``rural,'' allow providers to plan for the 
elimination of discounted services, and give the Commission time to 
review the effect of the new definition. In 2008, the Commission 
extended the grandfathering period for three years based on uncontested 
evidence of specific harms that would result if discounted services 
were to be discontinued. At that time, the Commission also noted the 
need for additional time to evaluate the effect of new ``rural'' 
definition on health care providers and its planned review of the Pilot 
Program.
    6. While our consideration of broader reforms to the rural health 
care program remains pending, grandfathered providers have demonstrated 
over the past six years that they provide important services to areas 
and patients that do qualify as ``rural.'' Issuing another temporary 
extension would merely create ongoing and unnecessary uncertainty for 
program participants. Furthermore, the federal and Commission health IT 
policy priorities discussed above strongly weigh in favor of providing 
these grandfathered providers with the stability and certainty of a 
permanent rule modification. Commenters state that such certainty will 
assist grandfathered providers in moving forward with important 
initiatives (e.g., Virginia's demonstration tele-stroke network), 
better respond to the needs of patients, and to continue to provide 
innovative telehealth care to needy populations in the most cost-
effective manner. Thus, we disagree with the California PUC's position 
that we should only grant a defined time extension until we have had 
time to evaluate the Pilot Program and the progress under the current 
definition of ``rural.'' Finally, as noted above, annual support for 
discounted services to grandfathered providers currently constitutes 
less than one-half percent of the $400 million program cap, and there 
is no evidence that any currently eligible rural health care provider 
has been disadvantaged by the temporary grandfathering extensions. 
Therefore, we do not anticipate that health care providers eligible 
under our current rural definition will be disadvantaged by our 
permitting this limited universe of additional entities to remain 
eligible to receive discounted services. We seek comment on this 
analysis.

III. Procedural Matters

A. Filing Requirements

    7. Ex Parte Rules. This NPRM will be treated as a ``permit-but-
disclose'' proceeding subject to the ``permit-but-disclose'' 
requirements under section 1.1206(b) of the Commission's rules. Persons 
making oral ex parte presentations are reminded that memoranda 
summarizing the presentations must contain summaries

[[Page 37309]]

of the substance of the presentations and not merely a listing of the 
subjects discussed. It is generally required to have more than a one or 
two sentence description of the presented views and arguments. Other 
requirements pertaining to oral and written presentations are set forth 
in section 1.1206(b) of the Commission's rules.

B. Final Regulatory Flexibility Certification

    8. Proposed Permanent Rule. The Regulatory Flexibility Act of 1980, 
as amended (RFA), requires that a regulatory flexibility analysis be 
prepared for notice-and-comment rule making proceedings, unless the 
agency certifies that ``the rule will not, if promulgated, have a 
significant economic impact on a substantial number of small 
entities.'' The RFA generally defines the term ``small entity'' as 
having the same meaning as the terms ``small business,'' ``small 
organization,'' and ``small governmental jurisdiction.'' In addition, 
the term ``small business'' has the same meaning as the term ``small 
business concern'' under the Small Business Act. A ``small business 
concern'' is one which: (1) Is independently owned and operated; (2) is 
not dominant in its field of operation; and (3) satisfies any 
additional criteria established by the Small Business Administration 
(SBA).
    9. An initial regulatory flexibility analysis (IRFA) was 
incorporated in the Second Report and Order. The Commission sought 
written public comment on the proposals in the Second Report and Order, 
including comment on the IRFA. No comments were received to the Second 
Report and Order or IRFA that specifically raised the issue of the 
impact of the proposed rules on small entities.
    10. In this NPRM, we propose to adopt permanently the Commission's 
prior determination to grandfather those health care providers who were 
eligible under the Commission's definition of ``rural'' prior to the 
Second Report and Order. This has no effect on any parties that do not 
currently participate in the rural health care support program. It does 
not create any additional burden on small entities. We believe that 
this action imposes a minimal burden on the vast majority of entities, 
small and large, that are affected by this action.
    11. Therefore, we certify that the requirements of the order will 
not have a significant economic impact on a substantial number of small 
entities.
    12. In addition, the Notice of Proposed Rulemaking and this final 
certification will be sent to the Chief Counsel for Advocacy of the 
SBA, and will be published in the Federal Register.

C. Other Matters

    13. Paperwork Reduction Act of 1995. This document does not contain 
proposed information collection(s) subject to the Paperwork Reduction 
Act of 1995 (PRA), Public Law 104-13. In addition, therefore, it does 
not contain any new or modified information collection burden for small 
business concerns with fewer than 25 employees, pursuant to the Small 
Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 
U.S.C. 3506(c)(4).

List of Subjects in 47 CFR Part 54

    Communications common carriers, Reporting and recordkeeping 
requirements, Telephone.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.

Proposed Rule

    For the reasons discussed in the preamble, the Federal 
Communications Commission proposes to amend 47 CFR part 54 to read as 
follows:

PART 54--UNIVERSAL SERVICE

    1. The authority citation for part 54 continues to read as follows:

    Authority:  47 U.S.C. 1, 4(i), 201, 205, 214, and 254 unless 
otherwise noted.

    2. Amend Sec.  54.601 by revising paragraph (a)(3)(i) to read as 
follows:


Sec.  54.601  Eligibility.

    (a) * * *
    (3) * * *
    (i) Notwithstanding the definition of ``rural area'' in Sec.  54.5, 
any health care provider that is located in a ``rural area'' under the 
definition used by the Commission prior to July 1, 2005, and received a 
funding commitment from the rural health care program prior to July 1, 
2005, is eligible for support under this subpart.
* * * * *
[FR Doc. 2011-16060 Filed 6-24-11; 8:45 am]
BILLING CODE 6712-01-P