Household Eligibility and Application Process of the Coupon Program for Individuals Residing in Nursing Homes, Intermediate Care Facilities, Assisted Living Facilities and Households that Utilize Post Office Boxes, 54325-54334 [E8-21892]
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Federal Register / Vol. 73, No. 183 / Friday, September 19, 2008 / Rules and Regulations
DEPARTMENT OF COMMERCE
National Telecommunications and
Information Administration
47 CFR Part 301
[Docket Number: 080324461-81121-02]
RIN 0660–AA17
Household Eligibility and Application
Process of the Coupon Program for
Individuals Residing in Nursing
Homes, Intermediate Care Facilities,
Assisted Living Facilities and
Households that Utilize Post Office
Boxes
National Telecommunications
and Information Administration,
Commerce.
ACTION: Final rule.
AGENCY:
In this document, the
National Telecommunications and
Information Administration (NTIA)
adopts certain changes affecting section
301.3 of its Digital-to-Analog Converter
Box Coupon Program regulations. See
47 CFR § 301.3. Specifically, NTIA
waives the ‘‘eligible household’’ and
application requirements in subsection
301.3(a) and subsection 301.3(e),
respectively, for individuals residing in
nursing homes, intermediate care
facilities, and assisted living facilities,
subject to alternative application
requirements specified herein. NTIA
also amends paragraph 301.3(a)(2) to
permit an otherwise eligible household
that utilizes a post office box for mail
receipt to apply for and receive
coupons.
SUMMARY:
These regulations
become effective October 20, 2008.
ADDRESSES: A complete set of comments
filed in response to the Notice of
Proposed Rulemaking is available for
public inspection at the Office of the
Chief Counsel, National
Telecommunications and Information
Administration, 1401 Constitution
Avenue, Room 4713, Washington, DC
20230. The comments can also be
viewed at https://www.ntia.doc.gov and
at https://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT:
Milton Brown at (202) 482–1816.
SUPPLEMENTARY INFORMATION:
EFFECTIVE DATE:
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I. Background
The Digital Television Transition and
Public Safety Act of 2005 (the Act),
among other things, authorized NTIA to
create a Digital-to-Analog Converter Box
Coupon Program (Coupon Program) to
assist consumers to continue receiving
broadcast programming over the air
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using analog-only televisions not
connected to cable or satellite service
after the February 17, 2009 deadline for
full power stations that convert to
digital-only transmissions.1 Specifically,
section 3005 of the Act directed NTIA
to implement and administer a program
through which eligible U.S. households
may obtain via the United States Postal
Service a maximum of two coupons of
$40 each to be applied towards the
purchase of Coupon-Eligible Converter
Boxes (CECB). To implement the
Coupon Program, NTIA issued final
regulations on March 15, 2007.2
Since NTIA began accepting
applications for coupons on January 1,
2008, the Program has received a
number of applications submitted by, or
on behalf of, individuals residing in
nursing homes and from applicants who
utilize post office boxes for mail receipt.
Because these applicants do not meet
the current eligibility criteria under the
Coupon Program regulations, these
applications have been denied. On April
24, 2008, NTIA published a Notice of
Proposed Rulemaking (NPRM) and
Request for Comment in the Federal
Register that proposed to waive the
‘‘eligible household’’ and application
requirements in subsection 301.3(e) for
individuals residing in nursing homes
or other senior care facilities, subject to
alternative application requirements.3
The NPRM also proposed to amend
paragraph 301(a)(2) to permit an
otherwise eligible household that
utilizes a post office for mail receipt to
apply for and receive coupons subject to
providing satisfactory proof of a
physical residence.
II. Discussion
A. Nursing Home Residents
NTIA recognizes that our Nation’s
seniors, including those residing in
nursing homes and other senior care
facilities, constitute a vulnerable
community that may rely on free, overthe-air television to a greater degree
than other members of the public.4
Unfortunately, the current eligibility
1 Title III of Pub. L. No. 109-171, 120 Stat. 4, 21
(2006).
2 47 CFR Part 301.
3 Notice of Proposed Rulemaking and Request for
Comment: The Household Eligibility and
Application Process of the Coupon Program for
Individuals Residing in Nursing Homes and
Households that Utilize Post Office Boxes; Waiver,
73 Fed. Reg. 22120 (April 24, 2008).
4 See Testimony of John M. R. Kneuer, Assistant
Secretary for Communications and Information,
Before the Committee on Commerce, Science and
Transportation, United States Senate (Oct. 17, 2007)
(recognizing seniors as a targeted group that
depends on over-the-air television to a greater
extent than the general population), available at
https://www.ntia.doc.gov/ntiahome/congress/2007/
KneuerlSenateCommercel101707.htm.
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requirements of the program do not
permit seniors living in nursing homes
to avail themselves of the Coupon
Program. In the NPRM, NTIA proposed
to waive the current household
eligibility and application process set
forth at 47 CFR § 301.3 and to permit
these individuals to apply for and
receive one coupon under certain
circumstances. In the NPRM, NTIA also
sought public comments on the best
way to distribute coupons to verifiable
residents of nursing home facilities so
that the Coupon Program could be
administered effectively within its
existing resources. Finally, NTIA sought
comments on ways that the coupons
could be distributed in a manner that
minimizes waste, fraud and abuse.
IDENTIFICATION OF NURSING HOMES OR
OTHER SENIOR CARE FACILITIES
The initial challenge presented in the
proposed rule is identifying and
defining what constitutes nursing
homes or other senior care facilities. As
NTIA recognized in the NPRM, the
terms ‘‘nursing home’’ and ‘‘senior care
facility’’ are generic. There are many
facilities that care for elderly residents
that may be considered nursing homes
in the general sense. These include
assisted living facilities, continuing care
retirement communities, convalescent
rest homes and long-term care facilities.
In the NPRM, NTIA proposed to use a
facility’s inclusion in the Online
Survey, Certification and Reporting
(OSCAR) database which is maintained
by the U.S. Department of Health and
Human Services (HHS) Center for
Medicare and Medicaid Services (CMS)
in cooperation with the state long-term
care surveying agencies, as a basis for
identifying facilities that would be
recognized by the Coupon Program.5
Such databases determine a nursing
facility’s eligibility to participate in the
Medicare program based on a State’s
certification of compliance and a
facility’s compliance with civil rights
requirements.6 However, recognizing
that not all nursing homes in the United
States are included within the OSCAR
database, NTIA sought comments on
ways to ensure that all appropriate
facilities not otherwise in the OSCAR
database are identified and included in
the proposed waiver standards.
The comments submitted in response
to the NPRM revealed that there is no
5 OSCAR is a compilation of all the data elements
collected by surveyors during the inspection survey
conducted at nursing facilities for the purpose of
certification for participation in the Medicare and
Medicaid programs. The institutional files are
available at https://www.cms.hhs.gov/
HealthPlanRepFileData/05lInst.asp.
6 See generally, 42 CFR Part 403.
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clear definition for what constitutes a
nursing home; rather there are many
types of residential facilities that serve
the elderly. Some commenters suggested
that NTIA expand the proposed waiver
to include facilities other than nursing
homes. For example, the American
Health Care Association (AHCA) and
the National Center for Assisted Living
(NCAL) recommended that NTIA
expand the definition of nursing homes
to include assisted living and
developmental disabilities facilities.7
On the other hand, the Metropolitan
Area Communications Commission
(MACC) suggested that the definition of
nursing home include any residential
care facility that serves three or more
elderly residents in a group setting.8
Another commenter suggested that the
term ‘‘eligible nursing home’’ should
include ‘‘any asylum, institute,
residence, lodging, annex, center,
substitute home, house, mission or
shelter devoted to the care of more than
2 elderly people, for 24 hours a day, for
profit or non-profit.’’9
Numerous commenters sought the
expansion of the proposed waiver
eligibility through the use of the term
‘‘long-term care facility’’ as opposed to
‘‘nursing home.’’10 The term ‘‘long-term
care facility,’’ as proposed by these
commenters, would expand the
eligibility of the proposed waiver
request beyond nursing homes that care
for the elderly. For example, some
commenters’ proposed definition of
long-term facility could expand
eligibility to include group homes,
intermediate care facilities, schools,
hospitals, and other institutional
settings.11 Moreover, commenters such
as the National Citizen’s Coalition for
Nursing Home Reform, argue that age
should not be an artificial barrier that
would prevent some vulnerable adults
and youths from having access to this
benefit.12 The Adult Home Advocacy
Project (AHAP), citing a National
Nursing Home Survey, stated that
7 See American Health Care Association and the
National Center for Assisted Living (AHCA/NCAL)
Comments at 2.
8 See Metropolitan Area Communications
Commission (MACC) Comments at 1.
9 See Puerto Rico Telecommunications Board
(Puerto Rico) Comments at 4.
10 See Office of the D.C. Long-Term Care
Ombudsman Program (D.C. Ombudsman)
Comments at 1.
11 See Texas Long-Term Care Ombudsman
Program, Texas Department of Aging and Disability
Services (TX Ombudsman) Comments at 1; Ohio
State Long-Term Care Ombudsman (OH
Ombudsman) Comments at 1; D.C. Ombudsman
Comments at 1; Advocacy Group for Elders Council
at the Senior Source (Senior Source) Comments at
1.
12 See National Citizen’s Coalition for Nursing
Home Reform (NCCNHR) Comments at 3-4.
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approximately 12 percent of nursing
home residents are under 65 years of
age.13
Some commenters focused on
licensing by a state agency as a
threshold for defining nursing homes for
purposes of this action. For example,
the University of Texas Houston Health
Science Center, Center for Aging, stated
that NTIA should define nursing home
as any licensed facility that is in good
standing with the state in which it
operates.14 Likewise, the AHAP stated
that the waiver should include
individuals residing in all licensed
facilities, including adult homes, which
are defined under New York state law
as ‘‘‘an adult care facility established
and operated for the purpose of
providing long-term residential care,
room, board, housekeeping, personal
care and supervision to five or more
adults unrelated to the operator.’’’15
AHCA/NCAL recommended that if
NTIA wanted a more comprehensive
way of identifying and verifying care
facilities, it should contact state assisted
living residential care licensing agencies
which are listed on NCAL’s Assisted
Living State Regulatory Review 2008.16
AHAP further suggested that NTIA
refer to the eligibility requirements and
definitions for the U.S. Department of
Housing and Urban Development’s
(HUD) mortgage insurance program for
nursing homes, intermediate care, board
and care homes, and assisted-living
facilities as provided in 12 U.S.C.
§ 1715.17 HUD’s regulations provide
definitions for nursing homes,
intermediate care facilities, board and
home care facilities, and assisted living
facilities. AHAP’s recommendation was
useful to NTIA in defining the eligibility
criteria for the waiver.
NTIA agrees with commenters that
the proposed waiver should be
expanded to include facilities other than
nursing homes. As noted in the NPRM,
there are many facilities that care for
elderly residents that may be considered
‘‘nursing homes’’ in the generic sense.
While NTIA agrees that the residents of
some of these facilities suggested by
commenters, should be eligible for the
13 See Adult Home Advocacy Project of MFY
Legal Services (AHAP) Comments at 3-4 (citing the
National Nursing Home Survey 2008, Table 1,
available at https://www.cdc.gov/nchs/data/nnhsd/
Estimates/
EstimateslDemographicslTables.pdf#Table01.
14 See University of Texas Houston Health
Science Center, Center for Aging (Houston Center
for Aging) Comments at 1.
15 See AHAP Comments at 2; see also 18 N.Y.
Comp. Codes R. & Regs. § 485.2(b).
16 See Comments of AHCA/NCAL at 2; see also
www.ncal.org for a list of state assisted living/
residential care licensing agencies.
17 AHAP Comments at 5.
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waiver, commenters failed to define the
scope of the facilities. For example,
NTIA agrees with AHCA/NCAL that the
waiver should be available to residents
of assisted living facilities and
developmental disabilities facilities who
cannot currently obtain coupons under
the current regulations. AHCA/NCAL,
however, did not provide a definition of
‘‘assisted living facilities’’ or
‘‘developmental disabilities facilities.’’
Both of those terms could encompass
many different types of facilities which
may not be responsive to the purpose of
this waiver. A similar problem exists for
those commenters that suggested that
NTIA simply make the waiver available
to residents of ‘‘long term care
facilities.’’
Likewise, MACC’s comment that
NTIA should recognize any residential
care facility that serves three or more
elderly residents in a group setting
failed to provide an adequate rationale
for adoption for a standard to be used
by the Program. Finally, NTIA disagrees
with the comment from the Puerto Rico
Telecommunications Board that
‘‘eligible nursing home should include
’any asylum, institute, residence,
lodging, annex, center, substitute home,
house, mission or shelter devoted to the
care of more than 2 elderly people for
24 hours a day, for profit or non-profit.’’
These terms provide no certainty for the
Program to determine the scope of
eligibility, or the function of these
facilities.
Clear guidelines are necessary so that
NTIA can effectively respond to a
request for waiver. NTIA’s intent is to
ensure that individuals seeking a
waiver, are indeed permanent residents
of appropriate facilities. Accordingly,
NTIA will make the waiver of eligibility
under the Coupon Program only
available to residents of nursing homes,
intermediate care facilities, and assisted
living facilities (collectively referred to
hereafter as ‘‘facilities’’) as defined
herein.18 Intermediate care and assisted
living facilities were added to the scope
of eligibility because these facilities, as
defined herein, provide many of these
services for the elderly that are
associated with nursing homes. NTIA
also notes that these facilities
encompass many of the facilities
described by the commenters and may
18 As recommended by AHAP, NTIA referred to
the eligibility requirements and definitions for the
U.S. Department of Housing and Urban
Development’s (HUD) mortgage insurance program
for nursing homes, intermediate care, board and
care homes, and assisted-living facilities as
provided in 12 U.S.C. § 1715 to craft its definitions
for eligibility for the waiver.
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include residents who vary in age and
needs.
Accordingly, NTIA will make the
waiver of eligibility available to
residents of nursing homes which are
defined as ‘‘a public facility, proprietary
facility or facility of a private nonprofit
corporation or association, licensed by
the State for the accommodation of
convalescents or other persons who are
not acutely ill and not in need of
hospital care but who require skilled
nursing care and related medical
services, in which such nursing care
and medical services are prescribed by,
or are performed under the general
direction of, persons licensed to provide
such care or services in accordance with
the laws of the State where the facility
is located.’’ The waiver will also be
available to residents of intermediate
care facilities defined as ‘‘a proprietary
facility or facility of a private nonprofit
corporation or association licensed by
the State for the accommodation of
persons who, because of incapacitating
infirmities, require minimum but
continuous care but are not in need of
continuous medical or nursing
services.’’ Finally, NTIA will make the
waiver available to residents of an
assisted living facility defined as ‘‘a
public facility, proprietary facility, or
facility of a private nonprofit
corporation that: is licensed by the State
and makes available to residents
supportive services to assist the
residents in carrying out activities of
daily living, such as bathing, dressing,
eating, getting in and out of bed or
chairs, walking, going outdoors, using
the toilet, laundry, home management,
preparing meals, shopping for personal
items, obtaining and taking medication,
managing money, using the telephone,
or performing light or heavy housework,
and which may make available to
residents home health care services,
such as nursing and therapy; and
provides separate dwelling units for
residents, each of which may contain a
full kitchen and bathroom, and which
includes common rooms and other
facilities appropriate for the provision of
supportive services to the residents of
the facility.’’
Each facility described above must be
licensed by a State. We agree with those
commenters that focused on licensing
by a state agency as a threshold for
defining eligibility for the purpose of
this waiver. Licensure of the facilities
requires that they meet standards in
service and care, that they are legitimate
and verifiable operations, and are held
to a higher standard as a long-term care
facility. Licensure also ensures that
facilities have passed state scrutiny,
reducing the risk of fraud in
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applications for coupons. Moreover,
licensing enables NTIA to verify that a
facility is in fact one that caters to
individuals that the program is
attempting to reach.
ADMINISTRATION OF COUPON PROGRAM FOR
RESIDENTS
Another challenge recognized in the
NPRM is the application process for
coupons by facility home residents.
NTIA recognized that residents may
need assistance in the application
process to receive coupons. Therefore,
NTIA proposed to allow residents to
apply for a coupon, or an administrator
of a nursing home facility or other
persons designated to act on behalf of a
nursing home resident.
To mitigate risks associated with the
lack of readily available information to
authenticate requests from or on behalf
of nursing home residents, NTIA
proposed an exception to our existing
coupon eligibility and application
requirements that would enable
residents of eligible nursing homes, as
defined herein, to apply for and receive
coupons subject to certain additional
information requirements not otherwise
applicable to eligible households.
Specifically, NTIA proposed to permit
coupon applications to be submitted by,
or on behalf of, a resident of an eligible
nursing home using one of three
methods, provided that only one
application may be submitted for any
individual.
INDIVIDUAL
NTIA proposed to permit an
individual residing in an eligible
nursing home (nursing home resident)
to apply for one (1) coupon on his or her
own behalf. In such circumstances,
NTIA proposed that the coupon
applicant be required to include: (i) his
or her name, date of birth, and Social
Security Number (SSN); (ii) the name
and address of the eligible nursing
home; and (iii) a certification from the
nursing home resident as to whether he
or she receives television exclusively
over the air or through cable, satellite or
other pay television service. In the
NPRM, NTIA noted that in accordance
with the Privacy Act of 1974, disclosure
of an individual’s SSN for purposes of
this waiver process would be voluntary;
however, additional information to
verify the resident’s identity will be
solicited if the individual chooses not to
disclose the SSN.19 NTIA noted,
19 The Privacy Act of 1974 provides that it ‘‘shall
be unlawful for any Federal, State or local
government agency to deny to any individual any
right, benefit, or privilege provided by law because
of such individual’s refusal to disclose his social
security number.’’ 5 U.S.C. § 552a.
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54327
however, that such additional process
may delay the resident’s receipt of a
coupon.
A majority of commenters opposed
the collection of a nursing home
resident’s SSN and date of birth.20
These commenters argued that the
collection of this information violates a
nursing home resident’s privacy and
could lead to identity theft or fraud.
Other commenters argued that this
requirement should not be imposed on
nursing home residents if it is not
imposed on other coupon program
applicants.21 AHCA/NCAL argued that
because the potential for fraud in this
program is very low, NTIA should take
the applicant’s word on the application
form, just as the agency takes the
information of persons living in
individual homes at face value.22 One
commenter agreed that NTIA should be
allowed to collect SSNs and birthdates
of nursing home residents, as well as the
people applying on their behalf, but
proper precautions should be in place to
protect against identity theft.23
However, after careful consideration
has been given to all of the arguments
raised in the comments, NTIA has
decided not to require facility residents
to provide SSNs as part of the
application process. NTIA’s concern,
when it initially proposed to require
SSNs, was to reduce opportunities for
fraud, waste and abuse in the program.
NTIA believes that there are legitimate
concerns regarding privacy and identity
theft, which outweigh the potential for
fraud in the program, and thus has
determined that it is not necessary to
collect this information. Likewise, NTIA
will not require facility residents to
provide their date of birth as part of the
application process. All other
provisions published in the proposed
rule are adopted without change.
PERSON DESIGNATED TO ACT ON A
RESIDENT’S BEHALF
As stated above, NTIA recognizes that
nursing home residents may need
assistance in the application process to
receive coupons. Therefore, NTIA
proposed to permit a person designated
to act on behalf of a nursing home
resident (the designee) to request one (1)
20 See Tiffany Smith Comments at 1; D.C.
Ombudsman Comments at 2; MACC Comments at
2; AHCA/NCAL Comments at 3; National
Association of Telecommunications Officers and
Advisors (NATOA) Comments at 4; State of New
York Consumer Protection Board (NY CPB)
Comments at 2; AARP Comments at 5; Senior
Source Comments at 1; City of Seattle Comments at
2; NCCNHR Comments at 2.
21 See NATOA Comments at 4; City of Seattle
Comments at 2.
22 See AHCA/NCAL Comments at 2.
23 See Houston Center for Aging Comments at 1.
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coupon for that resident. In that case,
NTIA proposed that the designee be
required to provide all of the
information required of the nursing
home resident. In addition, NTIA
propose that the designee supply: (i) his
own name, address, SSN, and date of
birth; and (ii) evidence that he is
empowered to act on behalf of the
resident (e.g., power of attorney or birth
certificate indicating familial
relationship).
Commenters opposed the proposed
requirement that third parties acting on
a nursing home resident’s behalf should
provide SSNs and date of birth. For
example, the Advocacy Group for Elders
Council at the Senior Source argued that
legally authorized representatives
should not have to provide more
information than their name and
address to request coupons on behalf of
a nursing home resident.24 Some
commenters argued that such a
requirement was not only onerous, but
may well convince a third party to
withdraw the offer of assistance.25 Other
commenters complained that proof of
power of attorney or proof of a familial
relationship is also too burdensome.26
Still others recommended that a box on
the application indicating the
relationship of the filer to the applicant
would be sufficient.27
NTIA recognizes that residents of
these facilities will need assistance from
family and friends and, therefore, it will
not implement a procedure that may
deter that assistance. Requiring family
members and friends to provide
personal information may have the
unintended consequence of deterring
them from assisting residents in filling
out an application and procuring a
converter box. NTIA will permit family
members and friends of the residents of
the eligible facilities to apply on behalf
of those residents, but it will not collect
any personal information about the
family member or friend. The family
member or friend will only have to
provide information as it relates to the
resident. In other words, the family
member or friend would provide the
same information on an application that
the resident would provide. All other
requirements published in the proposed
rule are adopted without change.
24 See
Senior Source Comments at 1.
D.C. Ombudsman Comments at 2; NATOA
Comments at 5 (requirements for third-parties filing
on behalf of residents could have chilling effect on
the willingness of parties to assist residents in
submitting applications).
26 See AHCA/NCAL Comments at 3; Comments of
AARP at 6.
27 See Texas Ombudsman Comments at 2 (The
application should include an additional line
stating: ‘‘I am completing this application for a
resident in a long-term care facility.’’)
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25 See
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ADMINISTRATOR OF A NURSING HOME OR
OTHER SENIOR CARE FACILITY
NTIA also proposed in the NPRM that
an administrator of an eligible nursing
home may request one (1) coupon on
behalf of a nursing home resident of the
facility. As with the designee, the
administrator would be required to
provide for each resident for whom the
request is being made all of the
information specified in Option 1 above.
In addition, NTIA proposed that the
administrator be required to provide: (i)
the name and address of the residents’
eligible nursing home; (ii) the
administrator’s own name, SSN, and
date of birth; and (iii) a copy of each
facility’s operating license indicating
the administrator’s authorization to
administer the eligible nursing home.
Many commenters disagreed with the
proposed requirements on
administrators of nursing homes that
would submit applications on behalf of
nursing home residents. With respect to
a copy of a facility’s operating license,
commenters argue that such a
requirement would be onerous, and
takes time away from providing care to
nursing home residents.28 Other
commenters opposed NTIA’s proposal
to request the administrator’s SSN.29
The Office of the D.C. Long-Term Care
Ombudsman Program, Legal Counsel to
the Elderly, however, argued that
requiring an administrator to produce
an operating license would be sufficient,
but requiring the submission of a SSN
in addition to the license would be
overly burdensome.30
Some commenters suggested that
NTIA permit administrators or local
coalition of senior care provider
agencies to submit batch applications to
NTIA for coupons on behalf of seniors
that the coalition represents and that the
coupons should be returned to the
administrator or coalition rather than
the individual seniors.31 Another
commenter suggested that if a facility
administrator is given the right to
request coupons on behalf of residents,
others should be able to submit
applications as well including social
workers, long-term ombudsmen, and
other medical staff who work at the
facility.32
Based on the comments submitted,
NTIA decided that it will permit
administrators of long-term care
28 See AHCA/NCAL Comments at 3; ACTS
Retirement-Life Communities (ACTS) Comments at
1; Wesley Manor Inc. Comments at 1.
29 See Stephen Eggles Comments at 1.
30 See D.C. Ombudsman Comments at 2.
31 See Bridget Samuel Comments at 2; City of
Seattle Comments at 2.
32 See Houston Center for Aging Comments at 1.
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facilities to apply on behalf of its
residents, but it will not collect any
personal information about the
administrator. NTIA agrees with the
commenters that there are legitimate
concerns regarding privacy, identity
theft and application burdens, which
outweigh the potential for fraud in the
program. The administrator will only
have to provide information as it relates
to the long-term care resident. In other
words, the administrator would provide
the same information on an application
that the resident would provide.
Moreover, NTIA will not require the
administrator to provide a copy of the
facility’s operating license indicating
the administrator’s authorization to
administer the facility as part of the
application process. All other
requirements published in the proposed
rule are adopted without change.
APPLICABILITY OF OTHER PROVISIONS OF
THE COUPON PROGRAM RULE
Consistent with section 301.4(d) of
the Coupon Program rules, NTIA
proposed to send coupons to nursing
home residents via U.S. Postal Service
to the address of the eligible nursing
home specified in the application. In the
case of a request from an administrator
on behalf of a nursing home resident,
NTIA proposed to mail the coupon
directly to the requesting administrator
at the address provided for the facility
in the application. Because of NTIA’s
decision not to collect any personal
information from an administrator,
family member or friend that assists a
resident in applying for a coupon, NTIA
will mail the coupon directly to the
nursing home resident at the address
provided on the application. In any
case, NTIA will only mail one (1)
coupon in response to a successful
waiver application.
NTIA also proposed that a coupon
issued pursuant to this waiver process
may only be used to purchase a CECB
to be connected to a television set
individually-owned by the nursing
home resident on whose behalf the
application was made. Moreover, CECBs
purchased with coupons issued under
this process may not be connected to
television sets owned by the nursing
home or senior care facility. One
commenter recommended that the
coupon program permit reimbursement
for common area televisions because in
many cases, these televisions are the
only sets available to residents of very
limited means.33 NTIA was not
persuaded by this comment. Televisions
in common areas are more than likely
owned by the facility, not the resident.
33 See
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City of Seattle Comments at 2.
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There is nothing in the record that
indicates that businesses owning these
facilities are vulnerable and in need of
the assistance provided by the waiver.
Therefore, coupons issued pursuant to
this waiver may only be used to
purchase converter boxes to be
connected to a television set
individually owned by a resident.
Coupons are not to be used to purchase
converter boxes for television sets
owned by nursing homes, intermediate
care facilities or assisted living facilities.
Finally, the NPRM made it clear that
the Coupon Program would not
reimburse individuals, family members,
nursing home administrators or others
who may be designated to act on behalf
of residents for any costs these
individuals may incur in obtaining
coupons or providing other assistance
related to obtaining and installing
converter boxes. There were no
comments submitted in response to that
proposal. Therefore, NTIA will not, as
part of this waiver, reimburse
individuals, family members, nursing
home administrators or others who may
be designated to act on behalf of
residents for costs incurred in obtaining
coupons or providing other assistance
related to applying for a coupon, or
obtaining and installing a converter box.
Notwithstanding the proposals
adopted as part of this waiver process,
all other provisions of the Coupon
Program regulations apply to nursing
home residents.
WASTE, FRAUD AND ABUSE
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NTIA is aware that residents of
nursing homes, intermediate care and
assisted living facilities constitute a
vulnerable community in the United
States.34 In adopting this waiver, NTIA
recognizes that it must be aware of the
opportunities for fraud that this waiver
may present. Vigilant methods to
prevent and detect fraudulent coupon
requests are a critical part of the coupon
application process. Under the current
application process, each household
application for coupons is verified
against certified U.S. Postal Service
software to assure that the household is
an authentic address, which is
compared against a database of names
and addresses of households who have
already received coupons to prevent
duplication.
In the NPRM, NTIA recognized the
administrative challenges of providing
34 The websites of the Office of the Inspector
General of the U.S. Department of Health and
Human Services contains many fraud alerts and
advisory opinions detailing unfair practices targeted
at residents of nursing homes and other long-term
care facilities. See https://www.oig.hhs.gov/
fraud.html.
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Jkt 214001
coupons to residents of nursing homes.
Accordingly, we requested information
on ways that the agency could confirm
that an individual making a coupon
request actually resides in a nursing
home. There were no comments
submitted and NTIA is not aware of any
databases of names that can be used to
verify that an applicant is in fact a
resident of a nursing home. Thus, there
is no readily available method to verify
whether the applications submitted
under this waiver are indeed those of
nursing home residents. For these
reasons, NTIA will be vigilant of
applicants filed under this waiver and
will deny those applications that do not
fall within the limitations of this waiver
or appear to be fraudulent. NTIA will
also immediately report all suspicious
behavior to the appropriate authorities.
III. Applicants Utilizing Post Office
Boxes for Mail Receipt
In this Final Rule, NTIA also revisits
the Coupon Program regulations
regarding the use of post office boxes for
the receipt of coupons. The current
Coupon Program regulations required
applicants to provide a United States
Postal Service mailing address in all but
a few instances, such as applicants
residing on Indian reservations, Alaskan
Native Villages, and other rural areas to
which the U.S. Postal Service does not
deliver to residential addresses. NTIA
has learned from consumer complaints
that many applicants have sound
reasons for utilizing a post office box for
mail receipt. For example, a number of
consumers appealing denials expressed
concerns about the risk of identity theft
as a result of stolen mail received via
home delivery as the reason that they
receive mail at a post office box. As a
consequence, NTIA believes it was
appropriate to revisit the regulations
concerning the treatment of applications
using post office boxes.
In the NPRM, NTIA proposed to
amend subsection 301.3(a) of its
regulations to permit a household
utilizing a post office box for mail
receipt to become eligible to apply for
and receive coupons if it can provide
proof of physical residence. NTIA
believes that requiring proof of physical
residence will balance the need for
preventive controls to protect the
Coupon Program from waste, fraud, and
abuse with the goal of the Program to
provide assistance to those consumers
that will need a converter box to
continue receiving broadcast
programming over the air using analogonly televisions.
Specifically, NTIA proposed that an
applicant that utilizes a post office box
for mail receipt must provide one or
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Fmt 4700
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54329
more of the following documents to
satisfy the requirement for proof of
physical residence: a valid driver’s
license containing the applicant’s
physical address; a utility bill (water,
gas, electric, oil, cable, or landline
telephone (i.e., not wireless or pager))
bearing the applicant’s name and
physical address and issued within the
sixty (60) days immediately preceding
the date the coupon application is
submitted; a government-issued
property tax bill for the applicant’s
residence; an unexpired homeowner’s
or renter’s insurance policy for the
applicant’s residence; an unexpired
residential lease or rental agreement
with the applicant’s name and physical
address. NTIA proposed to only use this
information for identification,
verification and tracking purposes for
the Coupon Program. This information
would be collected and maintained in a
manner meeting the appropriate level of
security required for personally
identifiable information. Similar
information is routinely collected by
governmental agencies to verify
residency.35
NTIA requested comments on other
methods by which it could verify the
physical address of an applicant who
utilizes a post office box for mail
receipt. NTIA also sought information
about and estimates of the number of
consumers with post office boxes that
would apply for coupons if the
proposed rule is implemented. The
majority of commenters supported
NTIA’s proposal to permit a household
utilizing a post office box for mail
receipt to become eligible to apply for
and receive coupons. Commenters cited
privacy concerns, security reasons and
potential identity theft as reasons for
choosing to receive mail via post office
boxes.36
NATOA argued that because NTIA
has already adopted regulations that
permit post office box use by those who
live on Indian reservations, Alaskan
Native Villages, and other rural areas,
similar regulations should be adopted
for others who use post office boxes.
Thus, NATOA concludes that the
proposed proof of residence
requirement is an unnecessary hurdle to
consumers who opt to make use of post
office delivery. Another commenter
suggested a cross-reference of
applications to find matching or
substantially similar physical address
and post office boxes.
35 See e.g., Cal. Welfare and Institutions Code
§ 14007.1 (Deering 2007); D.C. Code Ann. § 39-309
(LexisNexis 2008); Ky. Rev. Stat. Ann. § 186.010
(LexisNexis 2008); N.C. Gen. Stat. § 20-7 (2007).
36 See Foster B. Lewis Comments at 1;
Anonymous Comment from Orlando, Florida at 1.
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Upon careful consideration of the
arguments raised in the comments,
NTIA has decided to modify some of the
requirements for Coupon Program
applicants that utilize post office boxes
for mail delivery. NTIA agrees with
NATOA that because regulations are
already in place for some groups that
receive mail via post office boxes,
similar regulations should also be
adopted for others who use post office
boxes. Applicants using post office
boxes instead of home delivery will not
be required to provide documentation to
show proof of a physical residence.
However, such applicants will be
required to provide an actual physical
address location along with their post
office box number as part of the
application process to allow NTIA to
verify the legitimacy of the address.
WASTE, FRAUD AND ABUSE
NTIA remains concerned about waste,
fraud, and abuse in the Coupon
Program. As noted in the proposed rule,
the Government Accountability Office
(GAO) has specifically cited the misuse
of post office boxes by applicants for
benefits and recommended that
preventive controls in a benefits
program should, at a minimum, require
that application data be validated
against other government or third-party
sources to determine whether an
applicant has provided accurate
information on their identity and place
of residence.38 Specifically, GAO
recommended that applicants should be
required to provide their physical
address.39 Consistent with GAO’s
recommendation, the Coupon Program’s
regulations retain the requirement that
applicants be required to provide their
physical residence in addition to their
post office box number. Moreover, as
recommended by GAO, the address of
each applicant will be checked by
NTIA’s contractor against a third-party
database to assist in validating
eligibility.
Procedural Matters
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Paperwork Reduction Act
Notwithstanding any other provision
of law, no person is required to respond
to, nor shall any person be subject to a
penalty for failure to comply with a
collection of information subject to the
Paperwork Reduction Act unless that
collection displays a currently valid
OMB Control Number. This document
38 Hurricane Katrina and Rita Disaster Relief:
Improper Fraudulent Individual Assistance
Payments Estimated to be Between $600 Million
and $1.4 Billion, Testimony, GAO-06-844T (GAO
2006 Testimony) (June 14, 2006).
39 Id.
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15:21 Sep 18, 2008
Jkt 214001
contains collection of information
requirements subject to the Paperwork
Reduction Act (PRA). The collection of
information referenced in the preamble
has been submitted to the Office of
Management and Budget and the
approval will be published in a separate
Federal Register notice.
In the NPRM, NTIA invited comment
on providing additional information to
identify residents in nursing homes.
NTIA requested approval on three
collection requirements including: (1)
modified applications for individuals
residing in nursing homes; (2)
certifications from persons designated to
act on behalf of the nursing home
resident; and (3) certifications from the
administrator of a nursing home or other
senior care facility. In addition, NTIA
invited comments on providing
additional information to identify
individuals utilizing post office boxes.
NTIA requested approval on the
collection requirement for individuals
to product verification of the physical
address.
Specifically, comments were invited
on (a) whether the collection of
information is necessary for the proper
performance of the functions for the
agency, including whether the
information will have practical utility;
(b) the accuracy of the agency’s estimate
of burden including the validity of the
methodology and assumptions used; (c)
ways to enhance quality, utility, and
clarity of the information collected; and
(d) ways to minimize the burden of the
collection of information on those who
are to respond, including through the
use of appropriate automated,
electronic, mechanical, or other
technological collection techniques of
other forms of information technology.
NTIA received a total of thirty-nine
comments and one late response to the
NPRM. NTIA received a total of 24
comments (favorable and unfavorable)
regarding information collection and
recordkeeping requirements.
Nursing Homes
On the first PRA issue, whether the
collection of information is necessary
for the proper performance of the
functions of the agency, including
whether the information will have
practical utility, NTIA received thirteen
(13) comments relating to the collection
of personal information such as SSNs
and birth dates. Most commenters who
addressed this issue disagreed with the
NTIA proposal to collect SSNs with the
exception of the National Association of
Broadcasters. Commenters argued that
collecting the SSN was excessive,40 a
40 Stephen
PO 00000
Eggles Comments at 1.
Frm 00040
Fmt 4700
Sfmt 4700
violation of privacy,41 unnecessarily
complicated and intrusive,42 and
unfair.43 Several commenters argued
that requiring the SSN for nursing home
residents was discriminatory because
other applicants were not required to
provide such information.44
Commenters also argued that collecting
SSNs and date of birth information
would expose a ‘‘vulnerable
community’’ to identity theft.45 One
commenter stated that while collecting
SSNs and date of birth information
would be beneficial to prevent fraud
some applicants may be reluctant to
apply out of fear of identity theft.46
Other commenters argued that
collecting SSNs and date of birth
information would have a chilling effect
on willingness to apply on behalf of
themselves or others.47 Another
commenter disagreed with the statement
that SSNs are unique identifiers and
suggested that NTIA at the very least
consider using a portion of the SSN.48
NAB acknowledges that NTIA was
taking measures to protect against the
potential increased risk of waste, fraud
or abuse.49 One commenter argued that
the need of senior citizens to continue
their valued television service was
heavily outweighed by the potential
increase of risk.50 One commenter
argued that the rule exceeded
congressional intent by requiring
excessive personal information that
would serve as a barrier to applying.51
One commenter suggested allowing
third parties, such as senior service
providers, to complete applications for
seniors and/or nursing facilities. The
commenter suggested that these
providers visit facilities to determine
which seniors need converters; file a
batch application for each facility that
would include the names of the seniors
requiring coupons; receive coupons sent
to the providers; and purchase and
install the converter boxes.52
On the issue of collecting licensing
information from each nursing home
facility, one commenter argued that
41 Tiffany
Smith Comments at 1.
Comments at 2.
43 AARP Comments at 5.
44 Senior Source Comments at 1; The City of
Seattle Comments at 2; NATOA Comments at 4;
AARP Comments at 5; AHCA/NCAL Comments at
3.
45 NATOA Comments at 4; AARP Comments at 5;
AHCA/NCAL Comments at 3.
46 Houston Center for Aging Comments at 1.
47 NCCNHR Comments at 2; NY CPB Comments
at 2.
48 NY CPB Comments of at 2.
49 National Association of Broadcasters (NAB)
Comments at 11.
50 Id.
51 AARP Comments at 6.
52 Bridget Samuel Comments at 1.
42 MACC
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providing licensing information with
each application was erroneous and
unnecessary while another argued the
requirement was overreaching.53 NTIA
did not receive any comments on the
second PRA issue, i.e., the accuracy of
the agency’s estimate of burden
including the validity of the
methodology and assumptions used.
NTIA received seven comments on
ways to enhance quality, utility, and
clarity of the information collected. One
commenter agreed that NTIA should
conduct audits to minimize fraud and
abuse. Another commenter was
concerned whether audits would
account for converter boxes that were no
longer at the facility due to residents
moving or passing away.54 Other
commenters argued that NTIA should
modify the application to include: a
question regarding the type of living
arrangements in which the individual
resides; a signature line for the nursing
home administrator; and a line to fill in
the name of the facility.55 One
commenter argued that NTIA could
verify information regarding eligible
facilities by utilizing the OSCAR
database, state licensing and
certification agencies, accrediting
organizations, and trade associations.56
On the fourth PRA issue, ways to
minimize the burden of the collection of
information on those who are to
respond, including through the use of
appropriate automated, electronic,
mechanical, or other technological
collection techniques of other forms of
information technology, NTIA received
twenty-one comments. Commenters
agreed with NTIA that the application
should be modified. However, several
commenters argued that requiring the
SSN and date of birth from the applicant
or the person acting on behalf of the
resident were unnecessarily
complicated,57 burdensome,58 timeconsuming,59 and ‘‘places a
substantially higher burden of proof for
identifying and confirming the
eligibility of long-term care residents
and those individuals applying on
behalf of seniors than for the general
populations.’’60
Some commenters argued that NTIA
should submit applications to nursing
home administrators who would verify
53 ACTS
Comments at 1; AHCA/NCAL at 3.
Good Samaritan Comments at 1.
55 AHCA/NCAL at 2; Texas Ombudsman
Comments at 2; Ohio Ombudsman Comments at 2.
56 NCCNHR Comments at 2.
57 MACC Comments at 2.
58 AHCA/NCAL Comments at 3.
59 AARP Comments at 6.
60 NCCNHR Comments at 2.
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54 The
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residency and coupon eligibility.61 Two
commenters argued that NTIA should
allow third parties to submit electronic
batch applications on behalf of nursing
home residents.62 On the other hand,
some commenters argued that requiring
administrators to collect and verify the
eligibility of applicants was excessive63
and would unduly burden
administrators.64
Several commenters argued that NTIA
should utilize online databases and
other resources to verify the applicant’s
eligibility.65 One commenter argued that
the onus is on NTIA to verify eligibility
and should not be the obligation of the
applicant to prove his or her
qualifications.66
Post Office Boxes
On the first PRA question, whether
the collection of information is
necessary for the proper performance of
the functions of the agency, including
whether the information will have
practical utility, commenters were
divided on this issue. Some commenters
agreed with NTIA’s proposed rule
requiring proof of the physical
address.67 One commenter argued that
the proposed rule is unfair and
discouraging.68
NTIA did not receive comments on
the accuracy of the agency’s estimate of
burden including the validity of the
methodology and assumptions used. On
the third PRA question, ways to
enhance quality, utility, and clarity of
the information collected, one
commenter argued that NTIA should
cross-reference the post office box
number with one physical address to
prevent duplication.69
On the fourth PRA question, ways to
minimize the burden of the collection of
information on those who are to
respond, including through the use of
appropriate automated, electronic,
mechanical, or other technological
collection techniques or other forms of
information technology, some
commenters endorsed NTIA’s proposed
61 Tiffany Smith Comments at 1; Buttonwood
Hospital of Burlington County (Buttonwood)
Comments at 1; Kathleen Cianci Comments at 1.
62 Bridget Samuels Comments at 1-2.; The City of
Seattle Comments at 2.
63 Stephen Eggles Comments at 1.
64 NCCNHR Comments at 2; ACTS Comments at
1.
65 Texas Ombudsman Comments at 1; Ohio
Ombudsman Comments at 1; AHCA Comments at
2-3; NCCNHR Comments at 2; AHAP at 6.
66 AARP Comments at 6.
67 NY Consumer Protection Board Comments at 3;
National Association of Broadcasters Comments at
2-3; Puerto Rico Telecommunications Regulatory
Board Comments at 4.
68 Andrew Juchonowski Comments at 1; NATOA
Comments at 5-6.
69 Andrew Juchonowski Comments at 1.
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54331
rule and agreed that the requirement is
not burdensome or erroneous.70
The comments to the NPRM and the
analysis of the NPRM have resulted in
changes or modifications from the
proposed rule to the final rule.
Accordingly, NTIA has modified certain
aspects of the information collection
and recordkeeping requirements. These
modifications are discussed below:
1.) Title: Waiver Application for the
Digital-to-Analog Converter Box Coupon
Type of Request: New Collection
Estimate of Burden: Public reporting
burden for this collection of information
is estimated to average 20 minutes per
respondent.
Respondents: Individuals residing in
nursing homes, intermediate care
facilities, and assisted living facilities or
other individuals submitting this
information on behalf of those residents
Estimated Number of Respondents:
420,000
Estimated Number of Responses per
Respondent: 1
Estimated Total Annual Burden on
Respondents: 20 minutes
In the NPRM, NTIA proposed to
request residents of nursing homes to
submit his or her name, date of birth,
and SSN, the name of the nursing home
and a certification from the resident as
to whether he or she receives television
exclusively over the air or through
cable, satellite or other pay television
service. The NPRM also proposed that
persons designated to act on nursing
home resident’s behalf be required to
provide all of the information required
with respect to the resident, as well as
his or her own name, address, SSN, date
of birth, and evidence that he or she is
empowered to act on behalf of the
resident (e.g. power of attorney or birth
certificate indicating familial
relationship). Finally, the NPRM
proposed that Administrators of nursing
facilities be required to provide all of
the information required with respect to
the resident as well as the
administrator’s own name, SSN, date of
birth and a copy of each facility’s
operating license indicating the
administrator’s authorization to
administer the nursing facility.
As discussed in the preamble, the
overwhelming number of commenters
opposed the collection of a nursing
home resident’s SSN and date of birth.
Likewise, commenters opposed the
collection of personal information from
persons designated to act on behalf of
the residents and nursing home
administrators. As a result of the
comments, NTIA will only seek
70 NY CPB Comments at 3; NAB Comments at 23; Puerto Rico Comments at 4.
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information from the resident. The only
information that will be required is the
name, address of the facility, and a
certification as to whether he or she
receives television exclusively over the
air or through cable, satellite or other
pay television service.
2.) Title: Applications for Households
that Utilize Post Office Boxes for Mail
Receipt
Type of Request: New Collection
In the NPRM, NTIA proposed to
permit a household utilizing a post
office box for mail receipt to become
eligible to apply for and receive
coupons if it could provide proof of
physical residence. Specifically, NTIA
proposed that an applicant that utilizes
a post office box for mail receipt provide
a copy of one or more of such
documents as a valid driver’s license
containing the applicant’s physical
address; a utility bill (water, gas,
electric, oil, cable, or landline telephone
(i.e., not wireless or pager)) bearing the
applicant’s name and physical address
and issued within the sixty (60) days
immediately preceding the date the
coupon application is submitted or a
government-issued property tax bill for
the applicant’s residence. As a result of
comments received in the proceeding,
NTIA decided not to impose this
requirement on households that utilize
Post Office boxes for mail receipt, but to
permit these households to provide the
same information that similarly situated
applicants currently use.
Executive Order 12866
This rule has been determined to be
significant for purposes of Executive
Order 12866; and therefore, has been
reviewed by the Office of Management
and Budget (OMB). In accordance with
Executive Order 12866, an Economic
Analysis was completed, outlining the
costs and benefits of implementing this
program. The complete analysis is
available from NTIA upon request.
yshivers on PROD1PC62 with RULES
Executive Order 12988
This rule has been reviewed under
Executive Order 12988, Civil Justice
Reform. NTIA has determined that the
rule meets the applicable standards
provided in section 3 of the Executive
Order, to minimize litigation, eliminate
ambiguity, and reduce burden.
Congressional Review Act
This rule has been determined to be
not major under the Congressional
Review Act, 5 U.S.C. § § 801 et seq.
Regulatory Flexibility Act
As required by the Regulatory
Flexibility Act, an Initial Regulatory
Flexibility Analysis (IRFA) was
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Jkt 214001
prepared and published in the NPRM. A
copy of the IRFA was provided to the
Chief Counsel for Advocacy of the Small
Business Administration. Although
NTIA specifically sought comment on
the costs to small entities of complying
with the Final Rule, no comments
provided specific cost information.
NTIA has carefully considered whether
to certify that the Final Rule will not
have a significant impact on a
substantial number of small entities.
NTIA continues to believe the Final
Rule’s impact will not be substantial in
the case of small entities. However,
NTIA cannot quantify the impact the
Final Rule will have on such entities.
Therefore, in the interest of
thoroughness, NTIA has prepared the
following Final Regulatory Flexibility
Analysis (RFA) with this Final Rule in
Accordance with the Regulatory
Flexibility Act.71
1. Succinct Statement of the Need for,
and Objectives of the Rule:
NTIA is issuing this Final Rule so that
residents of nursing home facilities may
apply for and receive a $40 coupon
towards the purchase of a digital-toanalog converter box. Under current
NTIA regulations, only U.S. households
are eligible to receive coupons.
Therefore, current regulations do not
extend eligibility to residents of nursing
home facilities. This rule allows seniors
that reside in nursing home facilities
and rely on free, over-the-air television,
to apply for and receive coupons to
purchase digital-to-analog converter
boxes. The rule also permits an
otherwise eligible household that
utilizes a post office box for mail receipt
to apply for and receive coupons.
2. Summary of the Significant Issues
Raised by the Public Comments in
Response to the IRFA: Summary of the
Assessment of the Agency of Such
Issues; and Statement of Changes Made
in the Rule as a Result of Such
Comments:
There were no comments raised in
response to the IRFA.
3. Description and Estimate of the
Number of Small Entities to Which the
Rule will Apply Or an Explanation of
Why no Such Estimate is Available:
The RFA requires agencies to provide
a description and an estimate of the
number of small entities to which the
rule will apply or an explanation of why
no such estimate is available.72 Under
the RFA, the term ‘‘small entity’’ has the
same meaning as the terms ‘‘small
business,’’ ‘‘small organization’’ and
‘‘small governmental jurisdiction.’’73 To
U.S.C. § 604.
U.S.C. § 604(a)(3).
73 5 U.S.C. § 601.
the extent that this rule affects small
businesses, it would affect nursing
home facilities that are deemed to be
small businesses. According to the
Small Business Administration (SBA),
Nursing Care Facilities and Continuing
Care Retirement Communities must
have receipts of $12.5 million or less in
order to qualify as a small business
concern.74 SBA provided, however, that
Homes for the Elderly and Other
Residential Care Facilities must have
receipts of $6.5 million or less to qualify
as a small business concern.75 NTIA
does not have data on the number of
these facilities that would qualify as a
small business concern. NTIA also does
not have data on the number of
residents of these small businesses that
would take advantage of the Coupon
Program.
D. Description of Projected Reporting,
Recordkeeping and Other Compliance
Requirements
There are no projected reporting,
recordkeeping or other compliance
requirements associated with this rule.
E. Steps Taken to Minimize
Significant Economic Impact on Small
Entities, and Significant Alternatives
Considered
The rule has no significant economic
impact on small entities. Participation
in the program is voluntary, thus any
economic impact would not be caused
by the rule as small entities are not
required to participate in the program.
NTIA notes that many nursing home
facilities, small or otherwise, may not
participate in the program because
residents may already receive television
service through one of the multichannel
video programming distributors, such as
cable or satellite service. To the extent
that small entities participate in the
program, the impacts are estimated to be
small. Long term care facilities are only
impacted by this program to the extent
that an administrator may choose to
apply for a coupon on behalf of a
resident. NTIA estimates that it would
take approximately 20 minutes to
submit this application on the resident’s
behalf. There is no indication that this
time commitment would result in
significant economic impact to a
nursing home facility.
In any case, as a result of the
comments received in this proceeding
and the decisions made based on those
comments, the actual burden on nursing
home facilities has actually been
reduced. In the NPRM, NTIA proposed
to require administrators of nursing
home facilities to provide the
administrator’s own name, SSN, and
71 5
72 5
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Frm 00042
Fmt 4700
74 13
75 13
Sfmt 4700
E:\FR\FM\19SER1.SGM
CFR § 121.201.
CFR § 121.201.
19SER1
Federal Register / Vol. 73, No. 183 / Friday, September 19, 2008 / Rules and Regulations
date of birth. Under the proposed rule,
the administrator would also have to
provide a copy of the facility’s operating
license indicating the administrator’s
authorization to administer the nursing
home. As a result of the comments
submitted in this proceeding, NTIA is
only requesting that an administrator
submitting an application on behalf of
the resident to submit the same
information that the resident would
submit. In other words, the
administrator would only have to
submit the information that pertains to
the resident requesting a coupon. This
action has resulted in a reduced burden
in terms of time and money for those
administrators of facilities that happen
to be small entities.
No intergovernmental consultation
with State and local officials is required
because this rule is not subject to the
provisions of Executive Order 12372,
Intergovernmental Consultation.
Unfunded Mandates
This rule contains no federal
mandates under the regulatory
provision of Title II of the Unfunded
Mandates Reform Act of 1995 for State,
local and tribal governments or the
private sector. Thus, this rule is not
subject to the requirements of sections
202 and 205 of the Unfunded Mandates
Reform Act of 1995.
National Environmental Policy Act
It has been determined that this rule
does not constitute a major federal
action significantly affecting the quality
of the human environment, and in
accordance with the National
Environmental Policy Act of 1969 (42
U.S.C. § § 4321 et seq.) (NEPA), an
Environmental Impact Statement is not
required.
Government Paperwork Elimination
Act
NTIA is committed to compliance
with the Government Paperwork
Elimination Act, which requires
Government agencies to provide to the
public the option of submitting
information or transacting business
electronically to the maximum extent
possible.
Executive Order 12630
yshivers on PROD1PC62 with RULES
This rule does not contain policies
that have takings implications.
Executive Order 13132
This rule does not contain policies
having federalism implications
requiring preparation of Federalism
Impact Statement.
15:21 Sep 18, 2008
List of Subjects in 47 CFR Part 301
For the reasons set forth in the
preamble, NTIA amends title 47, Part
301 as follows:
■
PART 301—DIGITAL-TO-ANALOG
CONVERTER BOX COUPON
PROGRAM
1. The authority citation continues to
read as follows:
■
Authority: Title III of the Deficit Reduction
Act of 2005, Pub. L. 109–171, 120 Stat. 4, 21
(Feb. 8, 2005).
2. Paragraph 301.2 is amended by
adding new definitions in alphabetical
order to read as follows:
■
§ 301.2
Executive Order 12372
VerDate Aug<31>2005
Regulatory Text
Jkt 214001
Definitions.
*
*
*
*
*
Assisted living facility means a public
facility, proprietary facility, or facility of
a private nonprofit corporation that: is
licensed by the State and makes
available to residents supportive
services to assist the residents in
carrying out activities of daily living,
such as bathing, dressing, eating, getting
in and out of bed or chairs, walking,
going outdoors, using the toilet,
laundry, home management, preparing
meals, shopping for personal items,
obtaining and taking medication,
managing money, using the telephone,
or performing light or heavy housework,
and which may make available to
residents home health care services,
such as nursing and therapy; and
provides separate dwelling units for
residents, each of which may contain a
full kitchen and bathroom, and which
includes common rooms and other
facilities appropriate for the provision of
supportive services to the residents of
the facility.
*
*
*
*
*
Intermediate care facility means a
proprietary facility or facility of a
private nonprofit corporation or
association licensed by the State for the
accommodation of persons who,
because of incapacitating infirmities,
require minimum but continuous care
but are not in need of continuous
medical or nursing services.
Nursing Home means a public facility,
proprietary facility or facility of a
private nonprofit corporation or
association, licensed by the State for the
accommodation of convalescents or
other persons who are not acutely ill
and not in need of hospital care but who
require skilled nursing care and related
medical services, in which such nursing
care and medical services are prescribed
by, or are performed under the general
direction of, persons licensed to provide
PO 00000
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Fmt 4700
Sfmt 4700
54333
such care or services in accordance with
the laws of the State where the facility
is located.
Nursing Home Resident means an
individual who lives on a permanent
basis at a Nursing Home, Intermediate
Care Facility, or Assisted Living
Facility. A Nursing Home Resident does
not have a permanent address that is
separate from the Nursing Home,
Intermediate Care Facility, or the
Assisted Living Facility.
*
*
*
*
*
■ 3. Section 301.3 is amended by
revising paragraph (a)(2) to read as
follows:
§ 301.3 Household eligibility and
application process.
(a)* * *
(2) A Post Office Box will not be
considered a valid mailing address
unless the applicant supplies
information to identify the physical
location of the household, as required.
*
*
*
*
*
■ 4. Section 301.7 is added to read as
follows:
§ 301.7
Waiver of Household Eligibility
(a) A resident of a Nursing Home,
Intermediate Care Facility or Assisted
Living Facility may apply for a limited
waiver of the household eligibility
requirement for the Coupon Program
and be eligible for one coupon. Anyone
may apply for a coupon on behalf of the
Resident including the Resident, a
family member, an employee of the
Nursing Home, Intermediate Care
Facility or Assisted Living Facility.
(b) The application must be in the
name of the Nursing Home Resident and
must include the resident’s name, the
name of the facility and the street
address. The Nursing Home Resident
must also certify that their television set
is over-the-air-reliant or whether they
subscribe to satellite, cable or other pay
television service.
(c) Applications will be accepted by
mail only on pre-printed form. In the
alternative, a letter will be accepted as
an application if all of the required
information for the waiver is contained
therein.
(d) A Nursing Home Resident seeking
a waiver is entitled to only one coupon.
(e) Coupons for approved applications
will be mailed individually to each
Nursing Home Resident, addressed and
mailed ‘‘in care of’’ to the Nursing Home
Resident at the address of the Nursing
Home, Intermediate Care Facility, or
Assisted Living Facility.
E:\FR\FM\19SER1.SGM
19SER1
54334
Federal Register / Vol. 73, No. 183 / Friday, September 19, 2008 / Rules and Regulations
Dated: September 15, 2008.
Meredith Attwell Baker,
Acting Assistant Secretary for
Communications and Information.
[FR Doc. E8–21892 Filed 9–18–08; 8:45 am]
BILLING CODE 3510–60–S
GENERAL SERVICES
ADMINISTRATION
48 CFR Parts 511, 516, 532, 538, 546,
and 552
[GSAR Amendment 2008–02; GSAR Case
2008–G517; (Change 23); Docket 2008–
0007; Sequence 01]
RIN 3090–AI68
General Services Administration
Acquisition Regulation; GSAR Case
2008–G517; Cooperative PurchasingAcquisition of Security and Law
Enforcement Related Goods and
Services (Schedule 84) by State and
Local Governments Through Federal
Supply Schedules
General Services
Administration (GSA), Office of the
Chief Acquisition Officer.
ACTION: Interim rule with request for
comments.
yshivers on PROD1PC62 with RULES
AGENCIES:
SUMMARY: The General Services
Administration (GSA) is amending the
General Services Administration
Acquisition Regulation (GSAR) to
implement Pub.L. 110–248, The Local
Preparedness Acquisition Act. The Act
authorizes the Administrator of General
Services to provide for the use by State
or local governments of Federal Supply
Schedules of the General Services
Administration (GSA) for alarm and
signal systems, facility management
systems, firefighting and rescue
equipment, law enforcement and
security equipment, marine craft and
related equipment, special purpose
clothing, and related services (as
contained in Federal supply
classification code group 84 or any
amended or subsequent version of that
Federal supply classification group).
DATES: Effective Date: September 19,
2008.
Applicability Date: This amendment
applies to solicitations and existing
contracts for Schedule 84, as defined in
GSAM 538.7001, Definitions, Schedule
84. Further, this amendment applies to
contracts awarded after the effective
date of this rule for Schedule 84.
Existing Schedule 84 contracts shall be
modified by mutual agreement of both
parties.
Comment Date: Interested parties
should submit written comments to the
VerDate Aug<31>2005
16:47 Sep 18, 2008
Jkt 214001
Regulatory Secretariat on or before
November 18, 2008 to be considered in
the formulation of a final rule.
ADDRESSES: Submit comments
identified by GSAR case 2008–G517, by
any of the following methods:
• Regulations.gov: https://
www.regulations.gov. Submit comments
via the Federal eRulemaking portal by
inputting ‘‘GSAR case 2008–G517’’
under the heading ‘‘Comment or
Submission’’. Select the link ‘‘Send a
Comment or Submission’’ that
corresponds with GSAR case 2008–
G517. Follow the instructions provided
to complete the ‘‘Public Comment and
Submission Form’’. Please include your
name, company name (if any), and
‘‘GSAR case 2008–G517’’ on your
attached document.
• Fax: 202–501–4067.
• Mail: General Services
Administration, Regulatory Secretariat
(VPR), 1800 F Street, NW, Room 4035,
ATTN: Laurieann Duarte, Washington,
DC 20405.
Instructions: Please submit comments
only and cite GSAR case 2008–G517, in
all correspondence related to this case.
All comments received will be posted
without change to https://
www.regulations.gov, including any
personal and/or business confidential
information provided.
FOR FURTHER INFORMATION CONTACT: Mr.
William Clark, Procurement Analyst, at
(202) 219–1813 for clarification of
content. Please cite GSAR case 2008–
G517. For information pertaining to
status or publication schedules, contact
the Regulatory Secretariat at (202) 501–
4755.
SUPPLEMENTARY INFORMATION:
A. Background
This interim rule amends GSAM Parts
511, 516, 532, 538, 546, and 552 to
implement Pub.L. 110–248, The Local
Preparedness Acquisition Act. The
public law amends the ‘‘Cooperative
Purchasing’’ provisions of the Federal
Property and Administrative Services
Act where the Administrator of GSA
provides States and localities access to
certain items offered through GSA’s
supply schedules. The Public Law
amends 40 U.S.C. 502(c) that allows, to
the extent authorized by the
Administrator, a State or local
government to use Federal Supply
Schedules of the General Services
Administration to purchase alarm and
signal systems, facility management
systems, firefighting and rescue
equipment, law enforcement and
security equipment, marine craft and
related equipment, special purpose
clothing, and related services (as
PO 00000
Frm 00044
Fmt 4700
Sfmt 4700
contained in Federal supply
classification code group 84 or any
amended or subsequent version of that
Federal supply classification group).
The GSA Schedules Program is also
known as the Federal Supply Schedule
(FSS) or Multiple Award Schedules
(MAS) Program. Under the FSS/MAS
Program, Federal agencies are able to
purchase goods and services under
contracts that are pre-negotiated by
GSA. These contracts cover more than
11 million commercial goods and
services and are listed in broad
categories known as Schedules. Under
current law, State and local
governments are authorized to purchase
goods and services off the GSA
Schedules, in limited circumstances,
under special procurement authority.
This interim rule allows for State and
local purchasing under GSA Schedule
84, which covers products and services
related to law enforcement and security.
Schedule 84 includes items such as fire
alarm systems, door entry control
devices, intrusion detection sensors,
bomb detection equipment, perimeter
security and video surveillance systems.
Use of the GSA Schedules allows State
and local governments to reduce time
and resources spent on negotiating and
awarding contracts for needed goods
and services and gives them access to
the pre-negotiated prices on the Federal
Supply Schedules. Access to Schedule
84 will help State and local
governments meet growing homeland
security and public safety needs.
Cooperative Purchasing was added to
the GSAR in 2003, covering automated
data processing equipment (including
firmware, software, supplies, support
equipment, and services) (Schedule 70).
A proposed rule was published in the
Federal Register at 68 FR 3220, January
23, 2003; an interim rule was published
in the Federal Register at 68 FR 24372,
May 7, 2003; and a final rule was
published in the Federal Register at 69
FR 28063, May 18, 2004. The rule
authorized State and local governments
to procure IT products and services
from Schedule 70, Information
Technology and the Consolidated
Schedule, contracts containing the IT
Special Item Numbers (SINs).
A related interim rule on Recovery
Purchasing was published in the
Federal Register at 72 FR 4649,
February 1, 2007. That interim rule
implemented Section 833 of P.L. 109–
364, which authorized the
Administrator of General Services to
provide to State and local governments
the use of Federal Supply Schedules of
the GSA for purchase of products and
services to be used to facilitate recovery
from a major disaster, terrorism, or
E:\FR\FM\19SER1.SGM
19SER1
]]>Agencies
[Federal Register Volume 73, Number 183 (Friday, September 19, 2008)]
[Rules and Regulations]
[Pages 54325-54334]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-21892]
[[Page 54325]]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Telecommunications and Information Administration
47 CFR Part 301
[Docket Number: 080324461-81121-02]
RIN 0660-AA17
Household Eligibility and Application Process of the Coupon
Program for Individuals Residing in Nursing Homes, Intermediate Care
Facilities, Assisted Living Facilities and Households that Utilize Post
Office Boxes
AGENCY: National Telecommunications and Information Administration,
Commerce.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: In this document, the National Telecommunications and
Information Administration (NTIA) adopts certain changes affecting
section 301.3 of its Digital-to-Analog Converter Box Coupon Program
regulations. See 47 CFR Sec. 301.3. Specifically, NTIA waives the
``eligible household'' and application requirements in subsection
301.3(a) and subsection 301.3(e), respectively, for individuals
residing in nursing homes, intermediate care facilities, and assisted
living facilities, subject to alternative application requirements
specified herein. NTIA also amends paragraph 301.3(a)(2) to permit an
otherwise eligible household that utilizes a post office box for mail
receipt to apply for and receive coupons.
EFFECTIVE DATE: These regulations become effective October 20, 2008.
ADDRESSES: A complete set of comments filed in response to the Notice
of Proposed Rulemaking is available for public inspection at the Office
of the Chief Counsel, National Telecommunications and Information
Administration, 1401 Constitution Avenue, Room 4713, Washington, DC
20230. The comments can also be viewed at https://www.ntia.doc.gov and
at https://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Milton Brown at (202) 482-1816.
SUPPLEMENTARY INFORMATION:
I. Background
The Digital Television Transition and Public Safety Act of 2005
(the Act), among other things, authorized NTIA to create a Digital-to-
Analog Converter Box Coupon Program (Coupon Program) to assist
consumers to continue receiving broadcast programming over the air
using analog-only televisions not connected to cable or satellite
service after the February 17, 2009 deadline for full power stations
that convert to digital-only transmissions.\1\ Specifically, section
3005 of the Act directed NTIA to implement and administer a program
through which eligible U.S. households may obtain via the United States
Postal Service a maximum of two coupons of $40 each to be applied
towards the purchase of Coupon-Eligible Converter Boxes (CECB). To
implement the Coupon Program, NTIA issued final regulations on March
15, 2007.\2\
---------------------------------------------------------------------------
\1\ Title III of Pub. L. No. 109-171, 120 Stat. 4, 21 (2006).
\2\ 47 CFR Part 301.
---------------------------------------------------------------------------
Since NTIA began accepting applications for coupons on January 1,
2008, the Program has received a number of applications submitted by,
or on behalf of, individuals residing in nursing homes and from
applicants who utilize post office boxes for mail receipt. Because
these applicants do not meet the current eligibility criteria under the
Coupon Program regulations, these applications have been denied. On
April 24, 2008, NTIA published a Notice of Proposed Rulemaking (NPRM)
and Request for Comment in the Federal Register that proposed to waive
the ``eligible household'' and application requirements in subsection
301.3(e) for individuals residing in nursing homes or other senior care
facilities, subject to alternative application requirements.\3\ The
NPRM also proposed to amend paragraph 301(a)(2) to permit an otherwise
eligible household that utilizes a post office for mail receipt to
apply for and receive coupons subject to providing satisfactory proof
of a physical residence.
---------------------------------------------------------------------------
\3\ Notice of Proposed Rulemaking and Request for Comment: The
Household Eligibility and Application Process of the Coupon Program
for Individuals Residing in Nursing Homes and Households that
Utilize Post Office Boxes; Waiver, 73 Fed. Reg. 22120 (April 24,
2008).
---------------------------------------------------------------------------
II. Discussion
A. Nursing Home Residents
NTIA recognizes that our Nation's seniors, including those residing
in nursing homes and other senior care facilities, constitute a
vulnerable community that may rely on free, over-the-air television to
a greater degree than other members of the public.\4\ Unfortunately,
the current eligibility requirements of the program do not permit
seniors living in nursing homes to avail themselves of the Coupon
Program. In the NPRM, NTIA proposed to waive the current household
eligibility and application process set forth at 47 CFR Sec. 301.3 and
to permit these individuals to apply for and receive one coupon under
certain circumstances. In the NPRM, NTIA also sought public comments on
the best way to distribute coupons to verifiable residents of nursing
home facilities so that the Coupon Program could be administered
effectively within its existing resources. Finally, NTIA sought
comments on ways that the coupons could be distributed in a manner that
minimizes waste, fraud and abuse.
---------------------------------------------------------------------------
\4\ See Testimony of John M. R. Kneuer, Assistant Secretary for
Communications and Information, Before the Committee on Commerce,
Science and Transportation, United States Senate (Oct. 17, 2007)
(recognizing seniors as a targeted group that depends on over-the-
air television to a greater extent than the general population),
available at https://www.ntia.doc.gov/ntiahome/congress/2007/Kneuer_
SenateCommerce_101707.htm.
---------------------------------------------------------------------------
Identification of Nursing Homes or Other Senior Care Facilities
The initial challenge presented in the proposed rule is identifying
and defining what constitutes nursing homes or other senior care
facilities. As NTIA recognized in the NPRM, the terms ``nursing home''
and ``senior care facility'' are generic. There are many facilities
that care for elderly residents that may be considered nursing homes in
the general sense. These include assisted living facilities, continuing
care retirement communities, convalescent rest homes and long-term care
facilities. In the NPRM, NTIA proposed to use a facility's inclusion in
the Online Survey, Certification and Reporting (OSCAR) database which
is maintained by the U.S. Department of Health and Human Services (HHS)
Center for Medicare and Medicaid Services (CMS) in cooperation with the
state long-term care surveying agencies, as a basis for identifying
facilities that would be recognized by the Coupon Program.\5\ Such
databases determine a nursing facility's eligibility to participate in
the Medicare program based on a State's certification of compliance and
a facility's compliance with civil rights requirements.\6\ However,
recognizing that not all nursing homes in the United States are
included within the OSCAR database, NTIA sought comments on ways to
ensure that all appropriate facilities not otherwise in the OSCAR
database are identified and included in the proposed waiver standards.
---------------------------------------------------------------------------
\5\ OSCAR is a compilation of all the data elements collected by
surveyors during the inspection survey conducted at nursing
facilities for the purpose of certification for participation in the
Medicare and Medicaid programs. The institutional files are
available at https://www.cms.hhs.gov/HealthPlanRepFileData/05_
Inst.asp.
\6\ See generally, 42 CFR Part 403.
---------------------------------------------------------------------------
The comments submitted in response to the NPRM revealed that there
is no
[[Page 54326]]
clear definition for what constitutes a nursing home; rather there are
many types of residential facilities that serve the elderly. Some
commenters suggested that NTIA expand the proposed waiver to include
facilities other than nursing homes. For example, the American Health
Care Association (AHCA) and the National Center for Assisted Living
(NCAL) recommended that NTIA expand the definition of nursing homes to
include assisted living and developmental disabilities facilities.\7\
On the other hand, the Metropolitan Area Communications Commission
(MACC) suggested that the definition of nursing home include any
residential care facility that serves three or more elderly residents
in a group setting.\8\ Another commenter suggested that the term
``eligible nursing home'' should include ``any asylum, institute,
residence, lodging, annex, center, substitute home, house, mission or
shelter devoted to the care of more than 2 elderly people, for 24 hours
a day, for profit or non-profit.''\9\
---------------------------------------------------------------------------
\7\ See American Health Care Association and the National Center
for Assisted Living (AHCA/NCAL) Comments at 2.
\8\ See Metropolitan Area Communications Commission (MACC)
Comments at 1.
\9\ See Puerto Rico Telecommunications Board (Puerto Rico)
Comments at 4.
---------------------------------------------------------------------------
Numerous commenters sought the expansion of the proposed waiver
eligibility through the use of the term ``long-term care facility'' as
opposed to ``nursing home.''\10\ The term ``long-term care facility,''
as proposed by these commenters, would expand the eligibility of the
proposed waiver request beyond nursing homes that care for the elderly.
For example, some commenters' proposed definition of long-term facility
could expand eligibility to include group homes, intermediate care
facilities, schools, hospitals, and other institutional settings.\11\
Moreover, commenters such as the National Citizen's Coalition for
Nursing Home Reform, argue that age should not be an artificial barrier
that would prevent some vulnerable adults and youths from having access
to this benefit.\12\ The Adult Home Advocacy Project (AHAP), citing a
National Nursing Home Survey, stated that approximately 12 percent of
nursing home residents are under 65 years of age.\13\
---------------------------------------------------------------------------
\10\ See Office of the D.C. Long-Term Care Ombudsman Program
(D.C. Ombudsman) Comments at 1.
\11\ See Texas Long-Term Care Ombudsman Program, Texas
Department of Aging and Disability Services (TX Ombudsman) Comments
at 1; Ohio State Long-Term Care Ombudsman (OH Ombudsman) Comments at
1; D.C. Ombudsman Comments at 1; Advocacy Group for Elders Council
at the Senior Source (Senior Source) Comments at 1.
\12\ See National Citizen's Coalition for Nursing Home Reform
(NCCNHR) Comments at 3-4.
\13\ See Adult Home Advocacy Project of MFY Legal Services
(AHAP) Comments at 3-4 (citing the National Nursing Home Survey
2008, Table 1, available at https://www.cdc.gov/nchs/data/nnhsd/
Estimates/Estimates_Demographics_Tables.pdfTable01.
---------------------------------------------------------------------------
Some commenters focused on licensing by a state agency as a
threshold for defining nursing homes for purposes of this action. For
example, the University of Texas Houston Health Science Center, Center
for Aging, stated that NTIA should define nursing home as any licensed
facility that is in good standing with the state in which it
operates.\14\ Likewise, the AHAP stated that the waiver should include
individuals residing in all licensed facilities, including adult homes,
which are defined under New York state law as ```an adult care facility
established and operated for the purpose of providing long-term
residential care, room, board, housekeeping, personal care and
supervision to five or more adults unrelated to the operator.'''\15\
AHCA/NCAL recommended that if NTIA wanted a more comprehensive way of
identifying and verifying care facilities, it should contact state
assisted living residential care licensing agencies which are listed on
NCAL's Assisted Living State Regulatory Review 2008.\16\
---------------------------------------------------------------------------
\14\ See University of Texas Houston Health Science Center,
Center for Aging (Houston Center for Aging) Comments at 1.
\15\ See AHAP Comments at 2; see also 18 N.Y. Comp. Codes R. &
Regs. Sec. 485.2(b).
\16\ See Comments of AHCA/NCAL at 2; see also www.ncal.org for a
list of state assisted living/residential care licensing agencies.
---------------------------------------------------------------------------
AHAP further suggested that NTIA refer to the eligibility
requirements and definitions for the U.S. Department of Housing and
Urban Development's (HUD) mortgage insurance program for nursing homes,
intermediate care, board and care homes, and assisted-living facilities
as provided in 12 U.S.C. Sec. 1715.\17\ HUD's regulations provide
definitions for nursing homes, intermediate care facilities, board and
home care facilities, and assisted living facilities. AHAP's
recommendation was useful to NTIA in defining the eligibility criteria
for the waiver.
---------------------------------------------------------------------------
\17\ AHAP Comments at 5.
---------------------------------------------------------------------------
NTIA agrees with commenters that the proposed waiver should be
expanded to include facilities other than nursing homes. As noted in
the NPRM, there are many facilities that care for elderly residents
that may be considered ``nursing homes'' in the generic sense. While
NTIA agrees that the residents of some of these facilities suggested by
commenters, should be eligible for the waiver, commenters failed to
define the scope of the facilities. For example, NTIA agrees with AHCA/
NCAL that the waiver should be available to residents of assisted
living facilities and developmental disabilities facilities who cannot
currently obtain coupons under the current regulations. AHCA/NCAL,
however, did not provide a definition of ``assisted living facilities''
or ``developmental disabilities facilities.'' Both of those terms could
encompass many different types of facilities which may not be
responsive to the purpose of this waiver. A similar problem exists for
those commenters that suggested that NTIA simply make the waiver
available to residents of ``long term care facilities.''
Likewise, MACC's comment that NTIA should recognize any residential
care facility that serves three or more elderly residents in a group
setting failed to provide an adequate rationale for adoption for a
standard to be used by the Program. Finally, NTIA disagrees with the
comment from the Puerto Rico Telecommunications Board that ``eligible
nursing home should include 'any asylum, institute, residence, lodging,
annex, center, substitute home, house, mission or shelter devoted to
the care of more than 2 elderly people for 24 hours a day, for profit
or non-profit.'' These terms provide no certainty for the Program to
determine the scope of eligibility, or the function of these
facilities.
Clear guidelines are necessary so that NTIA can effectively respond
to a request for waiver. NTIA's intent is to ensure that individuals
seeking a waiver, are indeed permanent residents of appropriate
facilities. Accordingly, NTIA will make the waiver of eligibility under
the Coupon Program only available to residents of nursing homes,
intermediate care facilities, and assisted living facilities
(collectively referred to hereafter as ``facilities'') as defined
herein.\18\ Intermediate care and assisted living facilities were added
to the scope of eligibility because these facilities, as defined
herein, provide many of these services for the elderly that are
associated with nursing homes. NTIA also notes that these facilities
encompass many of the facilities described by the commenters and may
[[Page 54327]]
include residents who vary in age and needs.
---------------------------------------------------------------------------
\18\ As recommended by AHAP, NTIA referred to the eligibility
requirements and definitions for the U.S. Department of Housing and
Urban Development's (HUD) mortgage insurance program for nursing
homes, intermediate care, board and care homes, and assisted-living
facilities as provided in 12 U.S.C. Sec. 1715 to craft its
definitions for eligibility for the waiver.
---------------------------------------------------------------------------
Accordingly, NTIA will make the waiver of eligibility available to
residents of nursing homes which are defined as ``a public facility,
proprietary facility or facility of a private nonprofit corporation or
association, licensed by the State for the accommodation of
convalescents or other persons who are not acutely ill and not in need
of hospital care but who require skilled nursing care and related
medical services, in which such nursing care and medical services are
prescribed by, or are performed under the general direction of, persons
licensed to provide such care or services in accordance with the laws
of the State where the facility is located.'' The waiver will also be
available to residents of intermediate care facilities defined as ``a
proprietary facility or facility of a private nonprofit corporation or
association licensed by the State for the accommodation of persons who,
because of incapacitating infirmities, require minimum but continuous
care but are not in need of continuous medical or nursing services.''
Finally, NTIA will make the waiver available to residents of an
assisted living facility defined as ``a public facility, proprietary
facility, or facility of a private nonprofit corporation that: is
licensed by the State and makes available to residents supportive
services to assist the residents in carrying out activities of daily
living, such as bathing, dressing, eating, getting in and out of bed or
chairs, walking, going outdoors, using the toilet, laundry, home
management, preparing meals, shopping for personal items, obtaining and
taking medication, managing money, using the telephone, or performing
light or heavy housework, and which may make available to residents
home health care services, such as nursing and therapy; and provides
separate dwelling units for residents, each of which may contain a full
kitchen and bathroom, and which includes common rooms and other
facilities appropriate for the provision of supportive services to the
residents of the facility.''
Each facility described above must be licensed by a State. We agree
with those commenters that focused on licensing by a state agency as a
threshold for defining eligibility for the purpose of this waiver.
Licensure of the facilities requires that they meet standards in
service and care, that they are legitimate and verifiable operations,
and are held to a higher standard as a long-term care facility.
Licensure also ensures that facilities have passed state scrutiny,
reducing the risk of fraud in applications for coupons. Moreover,
licensing enables NTIA to verify that a facility is in fact one that
caters to individuals that the program is attempting to reach.
Administration of Coupon Program for Residents
Another challenge recognized in the NPRM is the application process
for coupons by facility home residents. NTIA recognized that residents
may need assistance in the application process to receive coupons.
Therefore, NTIA proposed to allow residents to apply for a coupon, or
an administrator of a nursing home facility or other persons designated
to act on behalf of a nursing home resident.
To mitigate risks associated with the lack of readily available
information to authenticate requests from or on behalf of nursing home
residents, NTIA proposed an exception to our existing coupon
eligibility and application requirements that would enable residents of
eligible nursing homes, as defined herein, to apply for and receive
coupons subject to certain additional information requirements not
otherwise applicable to eligible households. Specifically, NTIA
proposed to permit coupon applications to be submitted by, or on behalf
of, a resident of an eligible nursing home using one of three methods,
provided that only one application may be submitted for any individual.
Individual
NTIA proposed to permit an individual residing in an eligible
nursing home (nursing home resident) to apply for one (1) coupon on his
or her own behalf. In such circumstances, NTIA proposed that the coupon
applicant be required to include: (i) his or her name, date of birth,
and Social Security Number (SSN); (ii) the name and address of the
eligible nursing home; and (iii) a certification from the nursing home
resident as to whether he or she receives television exclusively over
the air or through cable, satellite or other pay television service. In
the NPRM, NTIA noted that in accordance with the Privacy Act of 1974,
disclosure of an individual's SSN for purposes of this waiver process
would be voluntary; however, additional information to verify the
resident's identity will be solicited if the individual chooses not to
disclose the SSN.\19\ NTIA noted, however, that such additional process
may delay the resident's receipt of a coupon.
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\19\ The Privacy Act of 1974 provides that it ``shall be
unlawful for any Federal, State or local government agency to deny
to any individual any right, benefit, or privilege provided by law
because of such individual's refusal to disclose his social security
number.'' 5 U.S.C. Sec. 552a.
---------------------------------------------------------------------------
A majority of commenters opposed the collection of a nursing home
resident's SSN and date of birth.\20\ These commenters argued that the
collection of this information violates a nursing home resident's
privacy and could lead to identity theft or fraud. Other commenters
argued that this requirement should not be imposed on nursing home
residents if it is not imposed on other coupon program applicants.\21\
AHCA/NCAL argued that because the potential for fraud in this program
is very low, NTIA should take the applicant's word on the application
form, just as the agency takes the information of persons living in
individual homes at face value.\22\ One commenter agreed that NTIA
should be allowed to collect SSNs and birthdates of nursing home
residents, as well as the people applying on their behalf, but proper
precautions should be in place to protect against identity theft.\23\
---------------------------------------------------------------------------
\20\ See Tiffany Smith Comments at 1; D.C. Ombudsman Comments at
2; MACC Comments at 2; AHCA/NCAL Comments at 3; National Association
of Telecommunications Officers and Advisors (NATOA) Comments at 4;
State of New York Consumer Protection Board (NY CPB) Comments at 2;
AARP Comments at 5; Senior Source Comments at 1; City of Seattle
Comments at 2; NCCNHR Comments at 2.
\21\ See NATOA Comments at 4; City of Seattle Comments at 2.
\22\ See AHCA/NCAL Comments at 2.
\23\ See Houston Center for Aging Comments at 1.
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However, after careful consideration has been given to all of the
arguments raised in the comments, NTIA has decided not to require
facility residents to provide SSNs as part of the application process.
NTIA's concern, when it initially proposed to require SSNs, was to
reduce opportunities for fraud, waste and abuse in the program. NTIA
believes that there are legitimate concerns regarding privacy and
identity theft, which outweigh the potential for fraud in the program,
and thus has determined that it is not necessary to collect this
information. Likewise, NTIA will not require facility residents to
provide their date of birth as part of the application process. All
other provisions published in the proposed rule are adopted without
change.
Person Designated to Act on a Resident's Behalf
As stated above, NTIA recognizes that nursing home residents may
need assistance in the application process to receive coupons.
Therefore, NTIA proposed to permit a person designated to act on behalf
of a nursing home resident (the designee) to request one (1)
[[Page 54328]]
coupon for that resident. In that case, NTIA proposed that the designee
be required to provide all of the information required of the nursing
home resident. In addition, NTIA propose that the designee supply: (i)
his own name, address, SSN, and date of birth; and (ii) evidence that
he is empowered to act on behalf of the resident (e.g., power of
attorney or birth certificate indicating familial relationship).
Commenters opposed the proposed requirement that third parties
acting on a nursing home resident's behalf should provide SSNs and date
of birth. For example, the Advocacy Group for Elders Council at the
Senior Source argued that legally authorized representatives should not
have to provide more information than their name and address to request
coupons on behalf of a nursing home resident.\24\ Some commenters
argued that such a requirement was not only onerous, but may well
convince a third party to withdraw the offer of assistance.\25\ Other
commenters complained that proof of power of attorney or proof of a
familial relationship is also too burdensome.\26\ Still others
recommended that a box on the application indicating the relationship
of the filer to the applicant would be sufficient.\27\
---------------------------------------------------------------------------
\24\ See Senior Source Comments at 1.
\25\ See D.C. Ombudsman Comments at 2; NATOA Comments at 5
(requirements for third-parties filing on behalf of residents could
have chilling effect on the willingness of parties to assist
residents in submitting applications).
\26\ See AHCA/NCAL Comments at 3; Comments of AARP at 6.
\27\ See Texas Ombudsman Comments at 2 (The application should
include an additional line stating: ``I am completing this
application for a resident in a long-term care facility.'')
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NTIA recognizes that residents of these facilities will need
assistance from family and friends and, therefore, it will not
implement a procedure that may deter that assistance. Requiring family
members and friends to provide personal information may have the
unintended consequence of deterring them from assisting residents in
filling out an application and procuring a converter box. NTIA will
permit family members and friends of the residents of the eligible
facilities to apply on behalf of those residents, but it will not
collect any personal information about the family member or friend. The
family member or friend will only have to provide information as it
relates to the resident. In other words, the family member or friend
would provide the same information on an application that the resident
would provide. All other requirements published in the proposed rule
are adopted without change.
Administrator of a Nursing Home or Other Senior Care Facility
NTIA also proposed in the NPRM that an administrator of an eligible
nursing home may request one (1) coupon on behalf of a nursing home
resident of the facility. As with the designee, the administrator would
be required to provide for each resident for whom the request is being
made all of the information specified in Option 1 above. In addition,
NTIA proposed that the administrator be required to provide: (i) the
name and address of the residents' eligible nursing home; (ii) the
administrator's own name, SSN, and date of birth; and (iii) a copy of
each facility's operating license indicating the administrator's
authorization to administer the eligible nursing home.
Many commenters disagreed with the proposed requirements on
administrators of nursing homes that would submit applications on
behalf of nursing home residents. With respect to a copy of a
facility's operating license, commenters argue that such a requirement
would be onerous, and takes time away from providing care to nursing
home residents.\28\ Other commenters opposed NTIA's proposal to request
the administrator's SSN.\29\ The Office of the D.C. Long-Term Care
Ombudsman Program, Legal Counsel to the Elderly, however, argued that
requiring an administrator to produce an operating license would be
sufficient, but requiring the submission of a SSN in addition to the
license would be overly burdensome.\30\
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\28\ See AHCA/NCAL Comments at 3; ACTS Retirement-Life
Communities (ACTS) Comments at 1; Wesley Manor Inc. Comments at 1.
\29\ See Stephen Eggles Comments at 1.
\30\ See D.C. Ombudsman Comments at 2.
---------------------------------------------------------------------------
Some commenters suggested that NTIA permit administrators or local
coalition of senior care provider agencies to submit batch applications
to NTIA for coupons on behalf of seniors that the coalition represents
and that the coupons should be returned to the administrator or
coalition rather than the individual seniors.\31\ Another commenter
suggested that if a facility administrator is given the right to
request coupons on behalf of residents, others should be able to submit
applications as well including social workers, long-term ombudsmen, and
other medical staff who work at the facility.\32\
---------------------------------------------------------------------------
\31\ See Bridget Samuel Comments at 2; City of Seattle Comments
at 2.
\32\ See Houston Center for Aging Comments at 1.
---------------------------------------------------------------------------
Based on the comments submitted, NTIA decided that it will permit
administrators of long-term care facilities to apply on behalf of its
residents, but it will not collect any personal information about the
administrator. NTIA agrees with the commenters that there are
legitimate concerns regarding privacy, identity theft and application
burdens, which outweigh the potential for fraud in the program. The
administrator will only have to provide information as it relates to
the long-term care resident. In other words, the administrator would
provide the same information on an application that the resident would
provide. Moreover, NTIA will not require the administrator to provide a
copy of the facility's operating license indicating the administrator's
authorization to administer the facility as part of the application
process. All other requirements published in the proposed rule are
adopted without change.
Applicability of Other Provisions of the Coupon Program Rule
Consistent with section 301.4(d) of the Coupon Program rules, NTIA
proposed to send coupons to nursing home residents via U.S. Postal
Service to the address of the eligible nursing home specified in the
application. In the case of a request from an administrator on behalf
of a nursing home resident, NTIA proposed to mail the coupon directly
to the requesting administrator at the address provided for the
facility in the application. Because of NTIA's decision not to collect
any personal information from an administrator, family member or friend
that assists a resident in applying for a coupon, NTIA will mail the
coupon directly to the nursing home resident at the address provided on
the application. In any case, NTIA will only mail one (1) coupon in
response to a successful waiver application.
NTIA also proposed that a coupon issued pursuant to this waiver
process may only be used to purchase a CECB to be connected to a
television set individually-owned by the nursing home resident on whose
behalf the application was made. Moreover, CECBs purchased with coupons
issued under this process may not be connected to television sets owned
by the nursing home or senior care facility. One commenter recommended
that the coupon program permit reimbursement for common area
televisions because in many cases, these televisions are the only sets
available to residents of very limited means.\33\ NTIA was not
persuaded by this comment. Televisions in common areas are more than
likely owned by the facility, not the resident.
[[Page 54329]]
There is nothing in the record that indicates that businesses owning
these facilities are vulnerable and in need of the assistance provided
by the waiver. Therefore, coupons issued pursuant to this waiver may
only be used to purchase converter boxes to be connected to a
television set individually owned by a resident. Coupons are not to be
used to purchase converter boxes for television sets owned by nursing
homes, intermediate care facilities or assisted living facilities.
---------------------------------------------------------------------------
\33\ See City of Seattle Comments at 2.
---------------------------------------------------------------------------
Finally, the NPRM made it clear that the Coupon Program would not
reimburse individuals, family members, nursing home administrators or
others who may be designated to act on behalf of residents for any
costs these individuals may incur in obtaining coupons or providing
other assistance related to obtaining and installing converter boxes.
There were no comments submitted in response to that proposal.
Therefore, NTIA will not, as part of this waiver, reimburse
individuals, family members, nursing home administrators or others who
may be designated to act on behalf of residents for costs incurred in
obtaining coupons or providing other assistance related to applying for
a coupon, or obtaining and installing a converter box.
Notwithstanding the proposals adopted as part of this waiver
process, all other provisions of the Coupon Program regulations apply
to nursing home residents.
Waste, Fraud and Abuse
NTIA is aware that residents of nursing homes, intermediate care
and assisted living facilities constitute a vulnerable community in the
United States.\34\ In adopting this waiver, NTIA recognizes that it
must be aware of the opportunities for fraud that this waiver may
present. Vigilant methods to prevent and detect fraudulent coupon
requests are a critical part of the coupon application process. Under
the current application process, each household application for coupons
is verified against certified U.S. Postal Service software to assure
that the household is an authentic address, which is compared against a
database of names and addresses of households who have already received
coupons to prevent duplication.
---------------------------------------------------------------------------
\34\ The websites of the Office of the Inspector General of the
U.S. Department of Health and Human Services contains many fraud
alerts and advisory opinions detailing unfair practices targeted at
residents of nursing homes and other long-term care facilities. See
https://www.oig.hhs.gov/fraud.html.
---------------------------------------------------------------------------
In the NPRM, NTIA recognized the administrative challenges of
providing coupons to residents of nursing homes. Accordingly, we
requested information on ways that the agency could confirm that an
individual making a coupon request actually resides in a nursing home.
There were no comments submitted and NTIA is not aware of any databases
of names that can be used to verify that an applicant is in fact a
resident of a nursing home. Thus, there is no readily available method
to verify whether the applications submitted under this waiver are
indeed those of nursing home residents. For these reasons, NTIA will be
vigilant of applicants filed under this waiver and will deny those
applications that do not fall within the limitations of this waiver or
appear to be fraudulent. NTIA will also immediately report all
suspicious behavior to the appropriate authorities.
III. Applicants Utilizing Post Office Boxes for Mail Receipt
In this Final Rule, NTIA also revisits the Coupon Program
regulations regarding the use of post office boxes for the receipt of
coupons. The current Coupon Program regulations required applicants to
provide a United States Postal Service mailing address in all but a few
instances, such as applicants residing on Indian reservations, Alaskan
Native Villages, and other rural areas to which the U.S. Postal Service
does not deliver to residential addresses. NTIA has learned from
consumer complaints that many applicants have sound reasons for
utilizing a post office box for mail receipt. For example, a number of
consumers appealing denials expressed concerns about the risk of
identity theft as a result of stolen mail received via home delivery as
the reason that they receive mail at a post office box. As a
consequence, NTIA believes it was appropriate to revisit the
regulations concerning the treatment of applications using post office
boxes.
In the NPRM, NTIA proposed to amend subsection 301.3(a) of its
regulations to permit a household utilizing a post office box for mail
receipt to become eligible to apply for and receive coupons if it can
provide proof of physical residence. NTIA believes that requiring proof
of physical residence will balance the need for preventive controls to
protect the Coupon Program from waste, fraud, and abuse with the goal
of the Program to provide assistance to those consumers that will need
a converter box to continue receiving broadcast programming over the
air using analog-only televisions.
Specifically, NTIA proposed that an applicant that utilizes a post
office box for mail receipt must provide one or more of the following
documents to satisfy the requirement for proof of physical residence: a
valid driver's license containing the applicant's physical address; a
utility bill (water, gas, electric, oil, cable, or landline telephone
(i.e., not wireless or pager)) bearing the applicant's name and
physical address and issued within the sixty (60) days immediately
preceding the date the coupon application is submitted; a government-
issued property tax bill for the applicant's residence; an unexpired
homeowner's or renter's insurance policy for the applicant's residence;
an unexpired residential lease or rental agreement with the applicant's
name and physical address. NTIA proposed to only use this information
for identification, verification and tracking purposes for the Coupon
Program. This information would be collected and maintained in a manner
meeting the appropriate level of security required for personally
identifiable information. Similar information is routinely collected by
governmental agencies to verify residency.\35\
---------------------------------------------------------------------------
\35\ See e.g., Cal. Welfare and Institutions Code Sec. 14007.1
(Deering 2007); D.C. Code Ann. Sec. 39-309 (LexisNexis 2008); Ky.
Rev. Stat. Ann. Sec. 186.010 (LexisNexis 2008); N.C. Gen. Stat.
Sec. 20-7 (2007).
---------------------------------------------------------------------------
NTIA requested comments on other methods by which it could verify
the physical address of an applicant who utilizes a post office box for
mail receipt. NTIA also sought information about and estimates of the
number of consumers with post office boxes that would apply for coupons
if the proposed rule is implemented. The majority of commenters
supported NTIA's proposal to permit a household utilizing a post office
box for mail receipt to become eligible to apply for and receive
coupons. Commenters cited privacy concerns, security reasons and
potential identity theft as reasons for choosing to receive mail via
post office boxes.\36\
---------------------------------------------------------------------------
\36\ See Foster B. Lewis Comments at 1; Anonymous Comment from
Orlando, Florida at 1.
---------------------------------------------------------------------------
NATOA argued that because NTIA has already adopted regulations that
permit post office box use by those who live on Indian reservations,
Alaskan Native Villages, and other rural areas, similar regulations
should be adopted for others who use post office boxes. Thus, NATOA
concludes that the proposed proof of residence requirement is an
unnecessary hurdle to consumers who opt to make use of post office
delivery. Another commenter suggested a cross-reference of applications
to find matching or substantially similar physical address and post
office boxes.
[[Page 54330]]
Upon careful consideration of the arguments raised in the comments,
NTIA has decided to modify some of the requirements for Coupon Program
applicants that utilize post office boxes for mail delivery. NTIA
agrees with NATOA that because regulations are already in place for
some groups that receive mail via post office boxes, similar
regulations should also be adopted for others who use post office
boxes. Applicants using post office boxes instead of home delivery will
not be required to provide documentation to show proof of a physical
residence. However, such applicants will be required to provide an
actual physical address location along with their post office box
number as part of the application process to allow NTIA to verify the
legitimacy of the address.
Waste, Fraud and Abuse
NTIA remains concerned about waste, fraud, and abuse in the Coupon
Program. As noted in the proposed rule, the Government Accountability
Office (GAO) has specifically cited the misuse of post office boxes by
applicants for benefits and recommended that preventive controls in a
benefits program should, at a minimum, require that application data be
validated against other government or third-party sources to determine
whether an applicant has provided accurate information on their
identity and place of residence.\38\ Specifically, GAO recommended that
applicants should be required to provide their physical address.\39\
Consistent with GAO's recommendation, the Coupon Program's regulations
retain the requirement that applicants be required to provide their
physical residence in addition to their post office box number.
Moreover, as recommended by GAO, the address of each applicant will be
checked by NTIA's contractor against a third-party database to assist
in validating eligibility.
---------------------------------------------------------------------------
\38\ Hurricane Katrina and Rita Disaster Relief: Improper
Fraudulent Individual Assistance Payments Estimated to be Between
$600 Million and $1.4 Billion, Testimony, GAO-06-844T (GAO 2006
Testimony) (June 14, 2006).
\39\ Id.
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Procedural Matters
Paperwork Reduction Act
Notwithstanding any other provision of law, no person is required
to respond to, nor shall any person be subject to a penalty for failure
to comply with a collection of information subject to the Paperwork
Reduction Act unless that collection displays a currently valid OMB
Control Number. This document contains collection of information
requirements subject to the Paperwork Reduction Act (PRA). The
collection of information referenced in the preamble has been submitted
to the Office of Management and Budget and the approval will be
published in a separate Federal Register notice.
In the NPRM, NTIA invited comment on providing additional
information to identify residents in nursing homes. NTIA requested
approval on three collection requirements including: (1) modified
applications for individuals residing in nursing homes; (2)
certifications from persons designated to act on behalf of the nursing
home resident; and (3) certifications from the administrator of a
nursing home or other senior care facility. In addition, NTIA invited
comments on providing additional information to identify individuals
utilizing post office boxes. NTIA requested approval on the collection
requirement for individuals to product verification of the physical
address.
Specifically, comments were invited on (a) whether the collection
of information is necessary for the proper performance of the functions
for the agency, including whether the information will have practical
utility; (b) the accuracy of the agency's estimate of burden including
the validity of the methodology and assumptions used; (c) ways to
enhance quality, utility, and clarity of the information collected; and
(d) ways to minimize the burden of the collection of information on
those who are to respond, including through the use of appropriate
automated, electronic, mechanical, or other technological collection
techniques of other forms of information technology.
NTIA received a total of thirty-nine comments and one late response
to the NPRM. NTIA received a total of 24 comments (favorable and
unfavorable) regarding information collection and recordkeeping
requirements.
Nursing Homes
On the first PRA issue, whether the collection of information is
necessary for the proper performance of the functions of the agency,
including whether the information will have practical utility, NTIA
received thirteen (13) comments relating to the collection of personal
information such as SSNs and birth dates. Most commenters who addressed
this issue disagreed with the NTIA proposal to collect SSNs with the
exception of the National Association of Broadcasters. Commenters
argued that collecting the SSN was excessive,\40\ a violation of
privacy,\41\ unnecessarily complicated and intrusive,\42\ and
unfair.\43\ Several commenters argued that requiring the SSN for
nursing home residents was discriminatory because other applicants were
not required to provide such information.\44\ Commenters also argued
that collecting SSNs and date of birth information would expose a
``vulnerable community'' to identity theft.\45\ One commenter stated
that while collecting SSNs and date of birth information would be
beneficial to prevent fraud some applicants may be reluctant to apply
out of fear of identity theft.\46\ Other commenters argued that
collecting SSNs and date of birth information would have a chilling
effect on willingness to apply on behalf of themselves or others.\47\
Another commenter disagreed with the statement that SSNs are unique
identifiers and suggested that NTIA at the very least consider using a
portion of the SSN.\48\
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\40\ Stephen Eggles Comments at 1.
\41\ Tiffany Smith Comments at 1.
\42\ MACC Comments at 2.
\43\ AARP Comments at 5.
\44\ Senior Source Comments at 1; The City of Seattle Comments
at 2; NATOA Comments at 4; AARP Comments at 5; AHCA/NCAL Comments at
3.
\45\ NATOA Comments at 4; AARP Comments at 5; AHCA/NCAL Comments
at 3.
\46\ Houston Center for Aging Comments at 1.
\47\ NCCNHR Comments at 2; NY CPB Comments at 2.
\48\ NY CPB Comments of at 2.
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NAB acknowledges that NTIA was taking measures to protect against
the potential increased risk of waste, fraud or abuse.\49\ One
commenter argued that the need of senior citizens to continue their
valued television service was heavily outweighed by the potential
increase of risk.\50\ One commenter argued that the rule exceeded
congressional intent by requiring excessive personal information that
would serve as a barrier to applying.\51\
---------------------------------------------------------------------------
\49\ National Association of Broadcasters (NAB) Comments at 11.
\50\ Id.
\51\ AARP Comments at 6.
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One commenter suggested allowing third parties, such as senior
service providers, to complete applications for seniors and/or nursing
facilities. The commenter suggested that these providers visit
facilities to determine which seniors need converters; file a batch
application for each facility that would include the names of the
seniors requiring coupons; receive coupons sent to the providers; and
purchase and install the converter boxes.\52\
---------------------------------------------------------------------------
\52\ Bridget Samuel Comments at 1.
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On the issue of collecting licensing information from each nursing
home facility, one commenter argued that
[[Page 54331]]
providing licensing information with each application was erroneous and
unnecessary while another argued the requirement was overreaching.\53\
NTIA did not receive any comments on the second PRA issue, i.e., the
accuracy of the agency's estimate of burden including the validity of
the methodology and assumptions used.
---------------------------------------------------------------------------
\53\ ACTS Comments at 1; AHCA/NCAL at 3.
---------------------------------------------------------------------------
NTIA received seven comments on ways to enhance quality, utility,
and clarity of the information collected. One commenter agreed that
NTIA should conduct audits to minimize fraud and abuse. Another
commenter was concerned whether audits would account for converter
boxes that were no longer at the facility due to residents moving or
passing away.\54\ Other commenters argued that NTIA should modify the
application to include: a question regarding the type of living
arrangements in which the individual resides; a signature line for the
nursing home administrator; and a line to fill in the name of the
facility.\55\ One commenter argued that NTIA could verify information
regarding eligible facilities by utilizing the OSCAR database, state
licensing and certification agencies, accrediting organizations, and
trade associations.\56\
---------------------------------------------------------------------------
\54\ The Good Samaritan Comments at 1.
\55\ AHCA/NCAL at 2; Texas Ombudsman Comments at 2; Ohio
Ombudsman Comments at 2.
\56\ NCCNHR Comments at 2.
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On the fourth PRA issue, ways to minimize the burden of the
collection of information on those who are to respond, including
through the use of appropriate automated, electronic, mechanical, or
other technological collection techniques of other forms of information
technology, NTIA received twenty-one comments. Commenters agreed with
NTIA that the application should be modified. However, several
commenters argued that requiring the SSN and date of birth from the
applicant or the person acting on behalf of the resident were
unnecessarily complicated,\57\ burdensome,\58\ time-consuming,\59\ and
``places a substantially higher burden of proof for identifying and
confirming the eligibility of long-term care residents and those
individuals applying on behalf of seniors than for the general
populations.''\60\
---------------------------------------------------------------------------
\57\ MACC Comments at 2.
\58\ AHCA/NCAL Comments at 3.
\59\ AARP Comments at 6.
\60\ NCCNHR Comments at 2.
---------------------------------------------------------------------------
Some commenters argued that NTIA should submit applications to
nursing home administrators who would verify residency and coupon
eligibility.\61\ Two commenters argued that NTIA should allow third
parties to submit electronic batch applications on behalf of nursing
home residents.\62\ On the other hand, some commenters argued that
requiring administrators to collect and verify the eligibility of
applicants was excessive\63\ and would unduly burden
administrators.\64\
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\61\ Tiffany Smith Comments at 1; Buttonwood Hospital of
Burlington County (Buttonwood) Comments at 1; Kathleen Cianci
Comments at 1.
\62\ Bridget Samuels Comments at 1-2.; The City of Seattle
Comments at 2.
\63\ Stephen Eggles Comments at 1.
\64\ NCCNHR Comments at 2; ACTS Comments at 1.
---------------------------------------------------------------------------
Several commenters argued that NTIA should utilize online databases
and other resources to verify the applicant's eligibility.\65\ One
commenter argued that the onus is on NTIA to verify eligibility and
should not be the obligation of the applicant to prove his or her
qualifications.\66\
---------------------------------------------------------------------------
\65\ Texas Ombudsman Comments at 1; Ohio Ombudsman Comments at
1; AHCA Comments at 2-3; NCCNHR Comments at 2; AHAP at 6.
\66\ AARP Comments at 6.
---------------------------------------------------------------------------
Post Office Boxes
On the first PRA question, whether the collection of information is
necessary for the proper performance of the functions of the agency,
including whether the information will have practical utility,
commenters were divided on this issue. Some commenters agreed with
NTIA's proposed rule requiring proof of the physical address.\67\ One
commenter argued that the proposed rule is unfair and discouraging.\68\
---------------------------------------------------------------------------
\67\ NY Consumer Protection Board Comments at 3; National
Association of Broadcasters Comments at 2-3; Puerto Rico
Telecommunications Regulatory Board Comments at 4.
\68\ Andrew Juchonowski Comments at 1; NATOA Comments at 5-6.
---------------------------------------------------------------------------
NTIA did not receive comments on the accuracy of the agency's
estimate of burden including the validity of the methodology and
assumptions used. On the third PRA question, ways to enhance quality,
utility, and clarity of the information collected, one commenter argued
that NTIA should cross-reference the post office box number with one
physical address to prevent duplication.\69\
---------------------------------------------------------------------------
\69\ Andrew Juchonowski Comments at 1.
---------------------------------------------------------------------------
On the fourth PRA question, ways to minimize the burden of the
collection of information on those who are to respond, including
through the use of appropriate automated, electronic, mechanical, or
other technological collection techniques or other forms of information
technology, some commenters endorsed NTIA's proposed rule and agreed
that the requirement is not burdensome or erroneous.\70\
---------------------------------------------------------------------------
\70\ NY CPB Comments at 3; NAB Comments at 2-3; Puerto Rico
Comments at 4.
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The comments to the NPRM and the analysis of the NPRM have resulted
in changes or modifications from the proposed rule to the final rule.
Accordingly, NTIA has modified certain aspects of the information
collection and recordkeeping requirements. These modifications are
discussed below:
1.) Title: Waiver Application for the Digital-to-Analog Converter
Box Coupon
Type of Request: New Collection
Estimate of Burden: Public reporting burden for this collection of
information is estimated to average 20 minutes per respondent.
Respondents: Individuals residing in nursing homes, intermediate
care facilities, and assisted living facilities or other individuals
submitting this information on behalf of those residents
Estimated Number of Respondents: 420,000
Estimated Number of Responses per Respondent: 1
Estimated Total Annual Burden on Respondents: 20 minutes
In the NPRM, NTIA proposed to request residents of nursing homes to
submit his or her name, date of birth, and SSN, the name of the nursing
home and a certification from the resident as to whether he or she
receives television exclusively over the air or through cable,
satellite or other pay television service. The NPRM also proposed that
persons designated to act on nursing home resident's behalf be required
to provide all of the information required with respect to the
resident, as well as his or her own name, address, SSN, date of birth,
and evidence that he or she is empowered to act on behalf of the
resident (e.g. power of attorney or birth certificate indicating
familial relationship). Finally, the NPRM proposed that Administrators
of nursing facilities be required to provide all of the information
required with respect to the resident as well as the administrator's
own name, SSN, date of birth and a copy of each facility's operating
license indicating the administrator's authorization to administer the
nursing facility.
As discussed in the preamble, the overwhelming number of commenters
opposed the collection of a nursing home resident's SSN and date of
birth. Likewise, commenters opposed the collection of personal
information from persons designated to act on behalf of the residents
and nursing home administrators. As a result of the comments, NTIA will
only seek
[[Page 54332]]
information from the resident. The only information that will be
required is the name, address of the facility, and a certification as
to whether he or she receives television exclusively over the air or
through cable, satellite or other pay television service.
2.) Title: Applications for Households that Utilize Post Office
Boxes for Mail Receipt
Type of Request: New Collection
In the NPRM, NTIA proposed to permit a household utilizing a post
office box for mail receipt to become eligible to apply for and receive
coupons if it could provide proof of physical residence. Specifically,
NTIA proposed that an applicant that utilizes a post office box for
mail receipt provide a copy of one or more of such documents as a valid
driver's license containing the applicant's physical address; a utility
bill (water, gas, electric, oil, cable, or landline telephone (i.e.,
not wireless or pager)) bearing the applicant's name and physical
address and issued within the sixty (60) days immediately preceding the
date the coupon application is submitted or a government-issued
property tax bill for the applicant's residence. As a result of
comments received in the proceeding, NTIA decided not to impose this
requirement on households that utilize Post Office boxes for mail
receipt, but to permit these households to provide the same information
that similarly situated applicants currently use.
Executive Order 12866
This rule has been determined to be significant for purposes of
Executive Order 12866; and therefore, has been reviewed by the Office
of Management and Budget (OMB). In accordance with Executive Order
12866, an Economic Analysis was completed, outlining the costs and
benefits of implementing this program. The complete analysis is
available from NTIA upon request.
Executive Order 12988
This rule has been reviewed under Executive Order 12988, Civil
Justice Reform. NTIA has determined that the rule meets the applicable
standards provided in section 3 of the Executive Order, to minimize
litigation, eliminate ambiguity, and reduce burden.
Congressional Review Act
This rule has been determined to be not major under the
Congressional Review Act, 5 U.S.C. Sec. Sec. 801 et seq.
Regulatory Flexibility Act
As required by the Regulatory Flexibility Act, an Initial
Regulatory Flexibility Analysis (IRFA) was prepared and published in
the NPRM. A copy of the IRFA was provided to the Chief Counsel for
Advocacy of the Small Business Administration. Although NTIA
specifically sought comment on the costs to small entities of complying
with the Final Rule, no comments provided specific cost information.
NTIA has carefully considered whether to certify that the Final Rule
will not have a significant impact on a substantial number of small
entities. NTIA continues to believe the Final Rule's impact will not be
substantial in the case of small entities. However, NTIA cannot
quantify the impact the Final Rule will have on such entities.
Therefore, in the interest of thoroughness, NTIA has prepared the
following Final Regulatory Flexibility Analysis (RFA) with this Final
Rule in Accordance with the Regulatory Flexibility Act.\71\
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\71\ 5 U.S.C. Sec. 604.
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1. Succinct Statement of the Need for, and Objectives of the Rule:
NTIA is issuing this Final Rule so that residents of nursing home
facilities may apply for and receive a $40 coupon towards the purchase
of a digital-to-analog converter box. Under current NTIA regulations,
only U.S. households are eligible to receive coupons. Therefore,
current regulations do not extend eligibility to residents of nursing
home facilities. This rule allows seniors that reside in nursing home
facilities and rely on free, over-the-air television, to apply for and
receive coupons to purchase digital-to-analog converter boxes. The rule
also permits an otherwise eligible household that utilizes a post
office box for mail receipt to apply for and receive coupons.
2. Summary of the Significant Issues Raised by the Public Comments
in Response to the IRFA: Summary of the Assessment of the Agency of
Such Issues; and Statement of Changes Made in the Rule as a Result of
Such Comments:
There were no comments raised in response to the IRFA.
3. Description and Estimate of the Number of Small Entities to
Which the Rule will Apply Or an Explanation of Why no Such Estimate is
Available:
The RFA requires agencies to provide a description and an estimate
of the number of small entities to which the rule will apply or an
explanation of why no such estimate is available.\72\ Under the RFA,
the term ``small entity'' has the same meaning as the terms ``small
business,'' ``small organization'' and ``small governmental
jurisdiction.''\73\ To the extent that this rule affects small
businesses, it would affect nursing home facilities that are deemed to
be small businesses. According to the Small Business Administration
(SBA), Nursing Care Facilities and Continuing Care Retirement
Communities must have receipts of $12.5 million or less in order to
qualify as a small business concern.\74\ SBA provided, however, that
Homes for the Elderly and Other Residential Care Facilities must have
receipts of $6.5 million or less to qualify as a small business
concern.\75\ NTIA does not have data on the number of these facilities
that would qualify as a small business concern. NTIA also does not have
data on the number of residents of these small businesses that would
take advantage of the Coupon Program.
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\72\ 5 U.S.C. Sec. 604(a)(3).
\73\ 5 U.S.C. Sec. 601.
\74\ 13 CFR Sec. 121.201.
\75\ 13 CFR Sec. 121.201.
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D. Description of Projected Reporting, Recordkeeping and Other
Compliance Requirements
There are no projected reporting, recordkeeping or other compliance
requirements associated with this rule.
E. Steps Taken to Minimize Significant Economic Impact on Small
Entities, and Significant Alternatives Considered
The rule has no significant
