Federal Communications Commission DA 21-771 Before the FEDERAL COMMUNICATIONS COMMISSION WASHINGTON, D.C. 20554 In the Matter of COVID-19 Telehealth Program ) ) ) ) ) ) WC Docket No. 20-89 ORDER Adopted: June 29, 2021 Released: June 29, 2021 By the Chief, Wireline Competition Bureau: I. INTRODUCTION 1. In this Order, we address the requests of potential applicants seeking additional time to submit applications for the second round of the COVID-19 Telehealth Program (Program) In December 2020, the Consolidated Appropriations Act, 2021 (Consolidated Appropriations Act) was signed into law, appropriating $249.95 million in additional funding for the Program. Consolidated Appropriations Act, 2021, Pub. L. No: 116-260, Division N-Additional Coronavirus Response and Relief, Title IX-Broadband Internet Access Service, § 903 “FCC COVID-19 Telehealth Program” (2020), available at https://www.congress.gov/bill/116th-congress/house-bill/133/text (Consolidated Appropriations Act). by granting, sua sponte, a waiver of the Program’s application filing deadline for potential applicants that meet the conditions described below. Although the requests for additional time were not formal requests for waiver under § 1.3 of our rules, 47 CFR § 1.3, we treat them as waiver requests and use the term “requests for waiver” in this Order to describe the emailed requests for additional time to submit Program applications. The Commission accepted applications for the second round of the COVID-19 Telehealth Program from 12:00 PM ET on April 29, 2021, to 12:00 PM ET on May 6, 2021. Potential applicants cited various reasons as to why they could not timely submit their applications, such as circumstances outside the applicant’s control including natural disasters; lack of resources; applicant confusion; the duration of the filing window; and time zone differences. 2. After considering the totality of the circumstances and the public interest, we grant in part the requests for extension of time and waive the application filing deadline. Specifically, we grant a waiver to potential applicants that (1) began and saved a draft application in the COVID-19 Telehealth application filing system before the close of the application filing window at 12:00 PM ET on May 6, 2021; and (2) contacted, in writing, the Universal Service Administrative Company (USAC) or the Commission within two weeks of the filing deadline, that is, by 12:00 PM ET on May 20, 2021, to request additional time to submit their applications. These potential applicants, listed in the Appendix attached to this Order, will be permitted to certify their applications as they currently exist in the Program’s application filing system. Commission staff will submit the certified applications, and we direct USAC to review the submitted applications as part of the Program’s initial commitment phase. The Commission directed the Universal Service Administrative Company (USAC) to disburse at least $150 million in the initial commitment phase of the funding commitment process. COVID-19 Telehealth Program; Promoting Telehealth for Low-Income Consumers, WC Docket Nos. 20-89 and 18-213, Report and Order and Order on Reconsideration, FCC 21-39, at 31-32, para. 62 (March 30, 2021) (Second COVID-19 Report and Order). Potential applicants that are not listed in the attached Appendix will not be provided additional time to certify their applications. II. BACKGROUND 3. The Commission established the COVID-19 Telehealth Program in April 2020 pursuant to the Coronavirus Aid, Relief, and Economic Security (CARES) Act to administer an initial $200 million in funding for telehealth and connected care services to eligible health care providers in response to the COVID-19 pandemic. Promoting Telehealth for Low-Income Consumers; COVID-19 Telehealth Program, WC Docket Nos. 18-213, 20-89, Report and Order, 35 FCC Rcd 3366 (2020) (First COVID-19 Report and Order); Coronavirus Aid, Relief, and Economic Security Act, Pub. L. No 116-136, 134 Stat. 281 (2020) (CARES Act). In December 2020, under the Consolidated Appropriations Act, Congress appropriated an additional $249.95 million in funding to the Commission for the Program. Consolidated Appropriations Act. The Consolidated Appropriations Act also required the Commission to consider and make several changes to the Program. The Bureau sought comment on these potential changes and improvements to the Program in January 2021, Wireline Competition Bureau Seeks Comment on COVID-19 Telehealth Program Application Evaluation Metrics, WC Docket No. 20-89, Public Notice, 36 FCC Rcd 55 (WCB 2021) (January 6th Public Notice). the Commission adopted a Report and Order to expand the responsibilities of USAC to include the Program’s administration in February 2021, COVID-19 Telehealth Program, WC Docket No. 20-89, Report and Order, 36 FCC Rcd 1613 (2021) (USAC Delegation Order). and, in March 2021, the Commission adopted the Second COVID-19 Report and Order, which established the requirements, processes, and procedures for the second round of Program funding appropriated under the Consolidated Appropriations Act (Round 2). Second COVID-19 Report and Order. 4. To incorporate these changes to the Program, and to improve the quality of the applications submitted for Round 2, both the application and the application filing system were modified. One such modification required applicants to complete certain fields in the application, and only allowed applications that contained the required information in the designated field to be submitted. The information required on the application was discussed in detail in the Second COVID-19 Report and Order and all required fields were denoted on the application with an asterisk. Id. at 48, Appendix C (“Application Process Guidance”). Among other things, applicants were required to designate a lead health care provider; Id. at 11, 48, para. 23, Appendix C. provide information on the services and devices for which they were requesting funding, along with supporting documentation such as invoices or vendor quotes; Id. at 28, 51, para. 55, Appendix C. and provide information for the nine objective evaluation metrics that the Commission directed USAC to use to evaluate the applications. The evaluation metrics which will be used to prioritize applications during Round 2 of the Program include: (i) location in an area hardest hit by the pandemic; (ii) location in a low income area; (iii) Round 1 unfunded applicants; (iv) location on Tribal lands; (v) designation as a Critical Access Hospital; (vi) designation as a Federally Qualified Health Center, a Federally Qualified Health Center Look-Alike, or a Disproportionate Share Hospital; (vii) location in a Healthcare Provider Shortage Area; (viii) new Round 2 applicants that did not apply for funding during Round 1; and (ix) location in a rural area. See Second COVID-19 Report and Order at 17-27, 49-51, paras. 38-51, Appendix C. Applicants that did not include information in all of the required fields of the application were not able to submit their application and received an error message in the application filing system informing them that their application was incomplete and directing them to the incomplete field(s). Similarly, applicants were not able to certify or submit applications after the close of the application filing window. 5. The Commission established a one-week application filing window for Round 2 of the Program. Second COVID-19 Report and Order at 8, para. 16; Wireline Competition Bureau Announces Application Filing Window for Round 2 of Covid-19 Telehealth Program Will Open April 29, 2021, WC Docket No. 20-89, Public Notice, DA 21-431 (WCB April 15, 2021) (Application Filing Window Public Notice). The application filing window was announced on April 15, 2021, two weeks before the application filing window opened. Application Filing Window Public Notice. The application filing window was open from 12:00 PM ET on April 29, 2021, to 12:00 PM ET on May 6, 2021. Application Filing Window Public Notice. At the close of the application filing window, over 1,800 applications had been submitted, with applications from all 50 states, the District of Columbia, American Samoa, Guam, the Northern Mariana Islands, Puerto Rico, and the U.S. Virgin Islands. 6. Immediately before and just after the close of the filing window, multiple potential applicants contacted USAC or Commission staff to request additional time to submit their applications. Some had not started applications at all; others had otherwise completed applications but for various reasons were unable to submit them. Wireline Competition Bureau staff reviewed over 180 inquiries from potential applicants, as well as any corresponding draft applications in the application filing system. Staff determined that many potential applicants were unable to timely submit their applications due to a combination of: (1) delays due to circumstances outside of the applicant’s control, such as natural disasters; (2) lack of resources; (3) applicant confusion that lead to incomplete applications or other errors in filling out the application; (3) duration of the filing window; and (4) time zone differences, e.g., applicants not allotting enough time to complete the application. Staff have not identified any global issues or system failures in the application filing system that would have prevented applicants from timely submitting complete applications. Nonetheless, because Congress directed funding to this Program on an emergency basis and given ongoing challenges that health care providers face due to the COVID-19 pandemic, we find it appropriate to provide relief to those applicants that made good faith efforts to comply with Program policies, procedures, and requirements and made timely extension requests. Accordingly, we provide relief to applicants who reasonably attempted to meet the deadline but were unable to do so and who also, within a reasonable amount of time after the application window closed, requested additional time within which to submit an application. See Rural Health Care Support Mechanism; Promoting Telehealth in Rural America, CC Docket No. 02-60, 17-310, Order, DA 21-394, at 11, para. 27-28 (WCB Apr. 8, 2021) (waiving certain RHC Program deadlines for participants who attempted to meet the deadline but were unable to due to the COVID-19 pandemic) (2021 RHC Waiver Order). III. DISCUSSION 7. In this Order, we sua sponte grant a waiver of the application filing deadline to the potential applicants identified in the Appendix attached to this Order. See infra, Appendix, List of Potential Applicants Afforded Relief. We afford relief only to those potential applicants who both (1) began and saved an application before 12:00 PM ET on May 6, 2021, and (2) contacted USAC or the Commission, in writing, by 12:00 PM ET on May 20, 2021, to request additional time to submit their application. Requests for Waiver and Review of Decisions of the Universal Service Administrator by Academy of Math and Science et al., CC Docket No. 02-60, Order, 25 FCC Rcd 9256, 9258, 9261-2, paras. 2, 13 (2010) (Academy of Math and Science Waiver Order) (“technical malfunctions, school reorganizations, a misunderstanding related to the filing deadline, personal staff emergencies, inadvertent errors, or circumstances beyond [applicants’] control, including inclement weather,” could constitute special circumstances that would warrant a waiver); Requests for Waiver and Review of Decisions of the Universal Service Administrator by Acorn Public Library, CC Docket No. 02-6, Order, 23 FCC Rcd 15474, 15475, para. 3 (WCB 2008) (same). 8. Generally, the Commission’s rules may be waived or suspended for good cause shown. 47 CFR § 1.3. The Commission may exercise its discretion to waive a rule where the particular facts make strict compliance inconsistent with the public interest. Northeast Cellular Telephone Co. v. FCC, 897 F.2d 1164, 1166 (D.C. Cir. 1990) (Northeast Cellular). In addition, the Commission may take into account considerations of hardship, equity, or more effective implementation of overall policy on an individual basis. WAIT Radio v. FCC, 418 F.2d 1153, 1159 (D.C. Cir. 1969); Northeast Cellular, 897 F.2d at 1166. Waiver of the Commission’s rules is appropriate only if both (1) special circumstances warrant a deviation from the general rule, and (2) such deviation will serve the public interest. Northeast Cellular, 897 F.2d at 1166. 9. After a careful review, we conclude that both conditions are met here. First, we conclude that the disruption caused by the ongoing COVID-19 pandemic and the burdens that health care providers have faced in response to the pandemic constitute special circumstances that justify this limited waiver. See Rural Health Care Support Mechanism; Promoting Telehealth in Rural America, WC Docket No. 02-60, 17-310, Order, DA 21-394, at 11, para. 28 (WCB Apr. 8, 2021) (finding that the extensive and ongoing disruptions to health care providers caused by the persistent and prolonged COVID-19 crisis, the emergence and quick spreading of the more contagious new variants, and the overwhelming burden placed on health care providers in administering COVID-19 testing and vaccines present compelling and unique circumstances that merit waivers of our rules and additional relief). Second, we conclude that this limited waiver will serve the public interest by providing an opportunity to obtain Program funding to a greater number of eligible and worthy health care providers during the ongoing pandemic. 10. There is a general presumption that deadlines for Commission programs may not be waived absent special circumstances; See NetworkIP, LLC v. FCC, 548 F.3d 116, 127 (D.C. Cir. 2008). however, we conclude that special circumstances are present here. See 2021 RHC Waiver Order at 11, para. 28. The unprecedented nature of the COVID-19 pandemic, which has placed an extraordinary strain on health care providers, caused many providers to struggle to complete their applications by the application filing deadline while still providing health care to their vulnerable patient populations. Additionally, the emergency nature of the Program and the changes implemented for Round 2 meant that all potential applicants were unfamiliar with the application and application filing system requirements, which made it more difficult for many applicants to complete their applications before the filing deadline. 11. Granting a limited waiver in this instance will serve the public interest by allowing additional health care providers the opportunity to obtain Program funding. In the Second COVID-19 Report and Order, in accordance with Congressional directives, the Commission adopted a set of objective evaluation metrics that will be used to identify the applications that would provide funding to communities that need the most support. Second COVID-19 Report and Order at 16, para. 37. By granting this limited waiver, we allow the potential applicants an opportunity to have their applications considered for Round 2 funding, which serves the Commission’s goal of ensuring that Program funding is used to fund eligible health care providers that will benefit most from the telehealth program funding. Id. 12. We conclude that this limited waiver is only appropriate for potential applicants who both began their application before the application deadline and who submitted a written request for additional time to submit their applications within two weeks of the close of the application filing window. We find that potential applicants who took both these steps have displayed a good faith effort to apply for Round 2 and to comply with Program requirements. Accordingly, we find it appropriate to provide relief to this discrete set of potential applicants, so that they are afforded the opportunity to have their existing applications considered using the objective application evaluation metrics set out in the Second COVID-19 Report and Order. 13. For the purposes of this Order, we will judge an entity to have begun an application before the deadline if its application was successfully saved within the application filing system. Entities that did not save and/or do not have a draft application in the system are not eligible for this relief because, absent evidence of a draft application, we cannot verify that the entity began an application prior to the deadline. If an applicant started an application, but did not save it prior to the deadline, the unsaved draft would not have registered in the Commission system. We decline to grant a waiver to entities without draft applications in the system or those who have not reached out in writing to request additional time to submit their applications. See 2021 RHC Waiver Order at 14, para. 32 (declining to automatically extend a deadline for all interested parties, and instead requiring an individualized request for relief); Academy of Math and Science Waiver Order, 25 FCC Rcd at 9261-62, para. 13 (denying requests for waiver to applicants that did not provide evidence of special circumstances to meet the waiver standard). By limiting this relief to potential applicants who both began their applications before the application deadline and requested additional time to complete their applications, we support the Commission’s intent to facilitate an “efficient and equitable application review process,” Second COVID-19 Report and Order at 7, para. 11. enable the timely distribution of this emergency funding to health care providers, and ensure that some entities are not afforded more time to complete their applications than others. As noted below, the relief provided today only allows potential applicants the opportunity to certify their applications; it does not allow potential applicants to make additional changes to their applications. Consistent with USAC’s review of all applications, entities that did not complete their applications fully will be contacted by USAC during their review of these applications to obtain additional information about funding details, lead health care providers, and details about any evaluation metrics that have been claimed on the application. See generally Second COVID-19 Report and Order at 46-51, Appendix C. Applicants will be able to supplement applications that do not score highly enough to receive funding awards after the initial commitment phase has concluded. See Second COVID-19 Report and Order at 32-33, paras. 65-66. 14. Accordingly, we grant a waiver to potential applicants that (1) began and saved an application before 12:00 PM ET on May 6, 2021, and (2) contacted USAC or the Commission, within two weeks, that is, by 12:00 PM ET on May 20, 2021, requesting additional time to submit their application in writing. To avail themselves of this waiver grant, the potential applicants listed in the Appendix must log into their account in the application filing system, available here: https://bit.ly/3zRdUe8, within seven (7) days from the release of this Order and certify their application. Potential applicants may not add or alter other information on their applications. Commission staff will submit any applications certified by 11:59 PM ET on July 6, 2021. 15. Applicants that have questions about how to certify their applications should contact USAC by email at Round2TelehealthApplicationSupport@usac.org or should call USAC’s support center at 833-832-7086. IV. ORDERING CLAUSES 16. ACCORDINGLY, IT IS ORDERED that, pursuant to the authority contained in sections 1-4 and 254 of the Communications Act of 1934, as amended, 47 U.S.C. §§ 151-154 and 254, and pursuant to sections 0.91, 0.291, 1.3 of the Commission’s rules, 47 CFR §§ 0.91, 0.291, 1.3, that the application filing deadline for Round 2 of the COVID-19 Telehealth Program is waived to the limited extent provided herein. 17. IT IS FURTHER ORDERED that, pursuant to the authority delegated in section 1.102(b)(1) of the Commission’s rules, 47 CFR § 1.102(b)(1), this order SHALL BE EFFECTIVE upon release. FEDERAL COMMUNICATIONS COMMISSION Kris Anne Monteith Chief Wireline Competition Bureau 2 APPENDIX LIST OF POTENTIAL APPLICANTS AFFORDED RELIEF Application Number Name of Applicant Institution GRA0013648 Su Clinica Familiar GRA0010475 Westbrook Health Services, Inc. GRA0010477 East Texas Border Health Clinic d/b/a Genesis PrimeCare GRA0010572 Willamette Family, Inc. GRA0010672 Weill Cornell Medical College of Cornell University GRA0010737 Rehabilitation Institute of Chicago d/b/a Shirley Ryan AbilityLab GRA0010886 Houlton Regional Hospital GRA0010931 St. Tammany Parish Hospital GRA0010944 Kahuku Medical Center GRA0010976 Castle Family Health Centers GRA0011079 Family Recovery Services GRA0011129 Lexington Center for Recovery, Inc. GRA0011140 Douglas County Hospital d/b/a Alomere Health GRA0011156 Operation Samahan, Inc. d/b/a Samahan Health Centers GRA0011194 Parker Jewish Institute for Health Care and Rehabilitation GRA0011237 Preventative Care Health Services d/b/a Presidio County Health Services GRA0011245 Apex Community Care, Inc. GRA0011275 St. Luke Community Healthcare GRA0011371 Borrego Community Health Foundation GRA0011377 CORE Health GRA0011422 Geisinger Clinic GRA0011463 Opportunities Industrialization Center, Inc. d/b/a OIC Family Medical Center GRA0011469 Masonic Charity Foundation of New Jersey GRA0011495 Claridge Court GRA0011496 Services to Enhance Potential GRA0011557 Innovative Resources for Independence, Inc. GRA0011632 Southern Trinity Health Services, Inc. GRA0011683 OptiMed Hospitalists PLLC GRA0011767 Los Barrios Unidos Community Clinic GRA0011780 CAMC - Charleston Area Medical Center GRA0011784 Visiting Nurse Association of Central Jersey Community Health Center GRA0011862 Children’s Health System of Texas GRA0011897 Place of Hope, Inc. GRA0012047 St. Cloud State University GRA0012077 South County Hospital Healthcare System GRA0012099 Northwestern Mental Health Center, Inc. GRA0012107 DuBois Regional Medical Center d/b/a Penn Highlands DuBois GRA0012179 Community Health Center of St. Mary’s Healthcare and Nathan Littauer Hospital GRA0012217 Shawnee Health Service GRA0012235 Aitkin Community Hospital d/b/a Riverwood Healthcare Center GRA0012269 Cincinnati Children’s Hospital GRA0012281 Integrated Services for Behavioral Health GRA0012308 Spectrum Human Services GRA0012344 Mountain Valley Child and Family Services, Inc. GRA0012355 Blessing Corporate Services GRA0012367 Avera Health GRA0012447 Community Health Centers of South Central Texas, Inc. GRA0012448 Mental Health Association of Nassau County GRA0012470 University of Rhode Island GRA0012474 Richmond Behavioral Health Authority GRA0012561 Ibn Sina Foundation GRA0012589 Sociedad de Educacion y Rehabilitacion (SER) de Puerto Rico, Inc. GRA0012625 Olathe Community Clinic, Inc. d/b/a River Valley Family Health Centers GRA0012629 SHIELDS for Families GRA0012666 University of Colorado Denver GRA0012696 DeKalb Community Service Board GRA0012761 University Physicians of Brooklyn, Inc. GRA0012791 Henderson Health Care GRA0012802 Illinois College of Optometry GRA0012821 Heart City Health GRA0012834 Clayton Center Community Services Board GRA0012842 Internal Medicine of the Rockies GRA0012855 Kinston Community Health Center, Inc. GRA0012869 Community Counseling Centers of Chicago GRA0012934 Eastern Rio Blanco County Health Service District d/b/a Pioneers Medical Center GRA0012953 NO/AIDS Task Force d/b/a CrescentCare GRA0012962 Mobile County Board of Health GRA0012985 Brooklyn Plaza Medical Center, Inc. GRA0013010 David Raines Community Health Center, Inc. GRA0013011 Summit Healthcare Association GRA0013017 Fort Defiance Indian Hospital Board, Inc. GRA0013029 Turning Point Community Programs GRA0013098 Mid Coast Health Net GRA0013113 United Memorial Medical Center GRA0013119 Aunt Martha’s Health and Wellness, Inc. GRA0013123 Community Health Care, Inc. GRA0013132 The Human Service Center GRA0013156 Global Executive Council Services GRA0013260 Burnett Medical Center GRA0013325 University of South Alabama (USA) Health System GRA0013345 Seven Acres Jewish Senior Care Services GRA0013370 Advance Care Alliance GRA0013383 Florida Community Health Centers, Inc. GRA0013400 North Oklahoma County Mental Health Center GRA0013435 Sacred Heart GRA0013439 Suburban Adult Services, Inc. GRA0013491 Community Health & Emergency Services, Inc. GRA0013555 Upper Peninsula Health Care Solutions & Health Information Exchange GRA0013561 San Bernardino County Superintendent of Schools - CAHELP GRA0013563 Center for Evaluation and Counseling GRA0013567 New York State Office of Mental Health GRA0013600 Midwest Christian Villages, Inc. d/b/a Christian Horizons GRA0013646 Valley Children’s Hospital GRA0013689 CHRISTUS Health GRA0013699 Restaurando la Fe y Esperanza GRA0013716 The SAFE Alliance GRA0013728 Mobile Medical Care, Inc. GRA0013878 Augusta University GRA0013910 Desert Physicians Medical Group Health GRA0013925 Community Transformers Foundation GRA0013936 Riverdale Mental Health Association GRA0013969 Salud Integral en la Montaña, Inc. GRA0013991 Compass Memorial Healthcare GRA0014008 Primary Care Health Services, Inc. GRA0014018 Henry Mayo Newhall Hospital GRA0014026 Nueces County Mental Health Mental Retardation Community Center GRA0014034 Farnham Family Services GRA0014036 Winslow Indian Health Care Center GRA0014042 Artesia General Hospital GRA0014051 LSU Healthcare Network