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]

Download as PDF 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 http://www.ntia.doc.gov and at http://www.regulations.gov. FOR FURTHER INFORMATION CONTACT: Milton Brown at (202) 482–1816. SUPPLEMENTARY INFORMATION: EFFECTIVE DATE: yshivers on PROD1PC62 with RULES 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 VerDate Aug<31>2005 15:21 Sep 18, 2008 Jkt 214001 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 http://www.ntia.doc.gov/ntiahome/congress/2007/ KneuerlSenateCommercel101707.htm. PO 00000 Frm 00035 Fmt 4700 Sfmt 4700 54325 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 http://www.cms.hhs.gov/ HealthPlanRepFileData/05lInst.asp. 6 See generally, 42 CFR Part 403. E:\FR\FM\19SER1.SGM 19SER1 54326 Federal Register / Vol. 73, No. 183 / Friday, September 19, 2008 / Rules and Regulations yshivers on PROD1PC62 with RULES 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. VerDate Aug<31>2005 15:21 Sep 18, 2008 Jkt 214001 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 http://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. PO 00000 Frm 00036 Fmt 4700 Sfmt 4700 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. E:\FR\FM\19SER1.SGM 19SER1 yshivers on PROD1PC62 with RULES Federal Register / Vol. 73, No. 183 / Friday, September 19, 2008 / Rules and Regulations 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 VerDate Aug<31>2005 15:21 Sep 18, 2008 Jkt 214001 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. PO 00000 Frm 00037 Fmt 4700 Sfmt 4700 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. E:\FR\FM\19SER1.SGM 19SER1 54328 Federal Register / Vol. 73, No. 183 / Friday, September 19, 2008 / Rules and Regulations 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.’’) yshivers on PROD1PC62 with RULES 25 See VerDate Aug<31>2005 15:21 Sep 18, 2008 Jkt 214001 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. PO 00000 Frm 00038 Fmt 4700 Sfmt 4700 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 E:\FR\FM\19SER1.SGM City of Seattle Comments at 2. 19SER1 Federal Register / Vol. 73, No. 183 / Friday, September 19, 2008 / Rules and Regulations 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 yshivers on PROD1PC62 with RULES 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 http://www.oig.hhs.gov/ fraud.html. VerDate Aug<31>2005 15:21 Sep 18, 2008 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 PO 00000 Frm 00039 Fmt 4700 Sfmt 4700 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. E:\FR\FM\19SER1.SGM 19SER1 54330 Federal Register / Vol. 73, No. 183 / Friday, September 19, 2008 / Rules and Regulations 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 yshivers on PROD1PC62 with RULES 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. VerDate Aug<31>2005 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 E:\FR\FM\19SER1.SGM 19SER1 Federal Register / Vol. 73, No. 183 / Friday, September 19, 2008 / Rules and Regulations 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. yshivers on PROD1PC62 with RULES 54 The VerDate Aug<31>2005 15:21 Sep 18, 2008 Jkt 214001 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. PO 00000 Frm 00041 Fmt 4700 Sfmt 4700 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. E:\FR\FM\19SER1.SGM 19SER1 54332 Federal Register / Vol. 73, No. 183 / Friday, September 19, 2008 / Rules and Regulations 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 VerDate Aug<31>2005 15:21 Sep 18, 2008 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 PO 00000 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 Frm 00043 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: http:// 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 http:// 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]]

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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.

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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 http://www.ntia.doc.gov and 
at http://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\
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    \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).
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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 http://www.ntia.doc.gov/ntiahome/congress/2007/Kneuer_
SenateCommerce_101707.htm.
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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.
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    \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 http://www.cms.hhs.gov/HealthPlanRepFileData/05_
Inst.asp.
    \6\ See generally, 42 CFR Part 403.
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    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 http://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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.'')
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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 
http://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\
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    \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.
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    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.
---------------------------------------------------------------------------

    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\
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    \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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \71\ 5 U.S.C. Sec.  604.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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