[Federal Register Volume 76, Number 123 (Monday, June 27, 2011)]
[Rules and Regulations]
[Pages 37280-37282]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-16062]


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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: Interim rule.

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SUMMARY: In this document, the Federal Communications Commission 
(Commission) adopts 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. The Commission takes 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: Effective June 27, 2011.

FOR FURTHER INFORMATION CONTACT: Chin Yoo, Attorney Advisor, at 202-
418-0295, Telecommunications Access Policy Division, Wireline 
Competition Bureau.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Order 
(Order) in WC Docket No. 02-60, FCC 11-101, adopted on June 20, 2011 
and released on June 21, 2011. This Order was also released with a 
companion Notice of Proposed Rulemaking

[[Page 37281]]

(NPRM). The full text of this document is available for public 
inspection during regular business hours in the FCC Reference Center, 
Room CY-A257, 445 12th Street, SW., Washington, DC 20554.

I. Introduction

    1. In this 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 the accompanying Notice of Proposed 
Rulemaking (NPRM) published elsewhere in this issue of the Federal 
Register, we seek comment on whether to make these ``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. Order

    2. In this order, we adopt an interim rule to allow all currently 
grandfathered health care providers to continue to qualify for 
discounted services until the Commission adopts permanent rules 
governing the eligibility of such providers to participate in rural 
health care programs. We find good cause to adopt this interim rule 
without notice and comment, and to make it effective upon publication 
in the Federal Register rather than 30 days afterwards. For the reasons 
below, we find that it is unnecessary and contrary to the public 
interest to delay adoption of this interim rule.
    3. Section 553 of the Administrative Procedure Act (APA) requires 
that agencies provide notice in the Federal Register and an opportunity 
for public comment on their proposed rules except, inter alia, ``when 
the agency for good cause finds (and incorporates the finding and a 
brief statement of reasons therefor in the rules issued) that notice 
and public procedure thereon are impracticable, unnecessary, or 
contrary to the public interest.'' Notice and comment have been excused 
in emergency situations or where delay could result in serious harm. In 
addition, section 553(d) of the APA requires a substantive rule to be 
published not less than 30 days before its effective date, except ``as 
otherwise provided by the agency for good cause found and published 
with the rule.''
    4. Without a change in our rules before June 30, 2011, currently 
grandfathered providers will lose eligibility for discounted services. 
In 2008, the Commission found that discontinuing services to these 
providers would ``serve only to endanger the continued availability of 
telemedicine and telehealth services that [these] health care 
facilities provide.'' For the reasons below, we find that such an 
outcome remains as likely to happen today as in 2008, and thus would be 
contrary to the public interest.
    5. The record demonstrates that grandfathered facilities, while not 
located themselves in a ``rural area'' under current Commission 
definitions, play a key role in providing health care services to 
``fundamentally rural'' areas. These providers are not located in large 
urbanized areas. In some instances, the grandfathered health care 
provider is a primary or secondary hub in a network that serves health 
care providers and patients located in areas that do qualify as 
``rural'' under our current definition. Discontinuance of rural health 
care support would make vulnerable rural providers that connect to 
these hub sites. For example, three grandfathered facilities in 
Nebraska are hub hospitals in the Nebraska Statewide Telehealth Network 
(NSTN), a ``hub-and-spoke'' statewide telehealth network in which 
nearly 80 percent of providers are eligible for rural health care 
support. The Nebraska hub hospitals currently receive support for 
backbone lines that carry traffic for the entire NSTN, including 
traffic for rural sites, and the majority of interactions over the 
backbone lines benefit small rural health care providers and those they 
serve, not the hub site.
    6. The record also provides numerous examples of the critical 
services that the petitioners and other affected health care providers 
offer to their patients. By its nature, telehealth allows health care 
providers that are not themselves located in ``rural'' areas to provide 
services to patients that are located in rural areas. In particular, 
many grandfathered facilities are located in regions experiencing 
specialty health care shortages, which these facilities are seeking to 
remedy via telemedicine. Services provided by grandfathered facilities 
include the following: emergency services, preventative care, 
interactive video, counseling, specialist consultations, oncology, 
psychiatry, neurology, tele-trauma, teleradiology, health professional 
and community education, and other telehealth and telemedicine 
applications.
    7. Without continued funding, these facilities will likely be 
unable to continue providing telehealth services to rural areas. 
Virginia Telehealth Network (VTN) states that many grandfathered 
providers do not enjoy the benefit of competitively priced broadband 
services and would likely no longer be able to afford to continue their 
telehealth programs without discounted services. Similarly, NSTN states 
that if the Commission takes no action, its hub sites will be unable to 
sustain the costs of the backbone lines, which would directly sever the 
connection of 40 eligible rural sites from the NSTN. According to the 
NSTN, these 40 sites would be unable to connect to tertiary care 
centers, which serve as their referring hospitals, and to other rural 
health sites. Access to specialized care via telehealth in rural 
Nebraska would be compromised, and in some cases, cease to exist. More 
generally, the American Telemedicine Association (ATA) explains that 
the loss of existing facilities supported by universal service could 
``result in the loss of health care services to populations that have 
unmet health care needs, that are remote and rural to the location of 
those services, and are most disparate.'' Thus, we find that 
discontinuance of funding could result in serious harm to affected 
rural health care providers and their patient populations, and such 
harm would be contrary to the public interest.
    8. We note that continued grandfathering on an interim basis will 
also support important Commission, federal, and state health 
information technology (health IT) priorities. For example, the Tanana 
Chiefs Conference states that continued funding is needed to meet 
bandwidth requirements created by National Broadband Plan initiatives, 
adoption of electronic health record meaningful use requirements by 
HHS, and Alaska's statewide health information exchange initiative. VTN 
and the Office of Telemedicine of the University of Virginia Health 
System (UVA) explain that Virginia was recently awarded two federal 
rural health IT grants to create a demonstration tele-stroke network 
and to deliver high risk obstetric services. Both Virginia projects 
include grandfathered health care providers as partners, and 
elimination of discounted services to these providers would adversely 
impact the projects' ability to sustain the federal grants. Similarly,

[[Page 37282]]

NSTN states it has been successful in developing a model, 
comprehensive, statewide network in which the federal government has 
invested over $1.4 million, but the discontinuance of funding to 
Nebraska's grandfathered hub hospitals would result in the 
transformation of this statewide network into isolated ``mini'' 
networks.
    9. We also find that notice-and-comment and 30-day advance 
publication in the Federal Register is unnecessary for this interim 
rule. The purpose of the notice-and-comment requirement is to allow 
interested parties to respond to the proposed rule and participate in 
the rulemaking process. 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. We note that all commenters, including all 
affected health care providers, support at least an interim extension 
of the grandfathering period. The 30-day advance publication 
requirement of section 553(d) is intended to inform affected parties of 
the proposed rule and afford them a reasonable time to adjust to the 
new regulations. The purpose of our interim rule, however, is to 
maintain the status quo while we consider amending our rules 
permanently. Thus, as a practical matter, there is no ``new'' 
regulation to which grandfathered health care providers must adjust. 
Indeed, the National Telecommunications Cooperative Association argues 
that without the interim extension, grandfathered entities would be 
left without a needed ``transition period * * * to accommodate for any 
lost USF revenues and to comply with'' new requirements, and would be 
forced to ``scramble for alternative technology solutions and funding 
sources.'' In addition, as discussed above, grandfathered providers, in 
the aggregate, have historically received less than $1.4 million 
annually in discounted services, or less than 0.02 percent of the $8 
billion universal service fund. Therefore, we find that the interim 
rule will not materially affect entities that contribute to the 
universal service fund, because their individual contributions will not 
change significantly. Based on the foregoing, we find good cause to 
adopt this interim rule without notice and comment.

III. Procedural Matters

A. Final Regulatory Flexibility Certification

    10. Interim Rule. The interim rule adopted in this Order is being 
adopted without notice and comment, and therefore is not subject to 
Regulatory Flexibility Act analysis under 5 U.S.C. 604(a).
    11. 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).
    12. An initial regulatory flexibility analysis (IRFA) was 
incorporated in the Second Report and Order, 70 FR 6365, February 7, 
2005. 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.
    13. In this Order, we now indefinitely extend, and 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.
    14. Therefore, we certify that the requirements of the order will 
not have a significant economic impact on a substantial number of small 
entities.
    15. In addition, the Order and this final certification will be 
sent to the Chief Counsel for Advocacy of the SBA, and will be 
published in the Federal Register.

B. Other Matters

    16. Congressional Review Act. The Commission will send a copy of 
this Order in a report to be sent to Congress and the Government 
Accountability Office pursuant to the Congressional Review Act. See 5 
U.S.C. 801(a)(1)(A). The interim rule contained in this Order shall 
take effect upon publication of a summary of the Order in the Federal 
Register for the reasons stated therein. See id. Sec. 808(2).

List of Subjects in 47 CFR Part 54

    Communications common carriers, Reporting and recordkeeping 
requirements, Telephone.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.

Interim Final Rule

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

PART 54--UNIVERSAL SERVICE

0
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.


0
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. 2011-16062 Filed 6-24-11; 8:45 am]
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