Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C

Transcription

1 Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C In the matter of ) ) WC Docket No Rural Health Care Support Mechanism ) COMMENTS OF SUBURBAN HEALTH ORGANIZATION, SOUTHERN OHIO HEALTH CARE NETWORK, ADENA HEALTH SYSTEM, HENDRICKS REGIONAL HEALTH, AND ST. VINCENT HEALTH IN OPPOSITION TO THE COMMENTS OF AT&T AND PETITION FOR RECONSIDERATION AND CLARIFICATION OF THE UNITED STATES TELECOM ASSOCIATION Pursuant to public notice received on April 24, 2013 in the above captioned proceeding, Suburban Health Organization, Southern Ohio Health Care Network, Adena Health System, Hendricks Regional Health and St. Vincent Health, respectively submit these reply comments in opposition to the Comments of AT&T in Support of United States Telecom Association ( USTA ) 1 petition for reconsideration and clarification 2 of certain decisions by the Commission s Healthcare Connect Fund Order 3 ; specifically, the Commission s decisions; (i) to allow purchase of excess capacity by ineligible entities at the fair share cost; (ii) to recognize dark fiber as an eligible service for funding under the Healthcare Connect Fund ( Program ); and (iii) to impose on carriers an obligation to report and make available to the Commission certain information related to the services delivered to eligible healthcare providers. INTRODUCTION hospitals: Commenters are comprised of the following hospital associations, Pilot Projects and 1 United States Telecom Association Petition for Reconsideration Clarification, WC Docket No (Filed Apr. 1, 2013) ( Petition ) 2 Comments of AT&T in Support of USTELECOM's Petition for Reconsideration and Clarification, WC Docket No (filed May 9, 2013) ( AT&T Comments ). 3 In re Rural Health Care Support Mechanism, Report and Order, 27 FCC Rcd (2012) ( Order ). 1

2 Southern Ohio Health Care Network. Southern Ohio Health Care Network (SOHCN) was formed under the Commission's Pilot Program and is the collaboration of Adena Health System in Chillicothe, O'Bleness Health System in Athens, and Holzer Health Systems in Gallipolis to bring improve health care access in Ohio's Appalachian counties and other rural, underserved areas. SOHCN acquired a dark fiber IRU interest in the existing and new construction infrastructure of Horizon Telecom and then licensed back to Horizon Telecom the right to use the SOHCN fibers in delivering services to SOHCN members. As a result of the infrastructure purchase, SOHCN was able to negotiate extremely competitive rates for the services to be provided by Horizon over the network and maintain greater control over the development of the communications network. This network connects more than 120 health care facilities, covering a 13-county service area which is home to nearly 800,000 Ohioans. Suburban Health Organization. Suburban Health Organization (SHO) is a partnership of Central Indiana Hospitals that work together to promote quality, efficiency and patient access. SHO member owner hospitals are: Hancock Regional Hospital, Hendricks Regional Health, Henry County Hospital, Johnson Memorial Hospital, Major Hospital, Riverview Hospital, Rush Memorial Hospital, St. Vincent Health, Inc., Community Westview Hospital, Witham Health Services. SHO supports its hospitals, its physicians and the communities they serve through the development of strategic initiatives and shared services. From quality initiatives and physician recruitment, to managed care contracting, and a risk retention group, the strength and diversity of these services help make SHO s hospitals and physicians one of the leading provider networks in Central Indiana. Adena Health System. Adena Health System is a non-profit, mutli-speciality health system serving more than 440,000 people in 12 counties in South Central Ohio. Adena Health 2

3 System has 184 staffed beds. The 12 counties include Adams, Athens, Fayette, Gallia, Highland, Hocking, Jackson, Pickaway, Pike, Ross, Scioto and Vinton. Adena Health System is the sponsor of the Southern Ohio Health Care Network (SOHCN) Pilot Project. Hendricks Regional Health. Hendricks Regional Heatlh is a non-profit, Magnet, multispecialty healthcare organization caring for communities in the western suburban area of Indianapolis, with a hospital in Danville (136 reported staffed beds) and medical buildings in Avon, Bainbridge, Brownsburg, Plainfield and Lizton. Hendricks Regional Health is a member of Suburban Health Organization. In 2004 Hendricks Regional Health initiated a project to acquire dark fiber facilities connecting its main campus to downtown Indianapolis. Since the initial dark fiber acquisition Hendricks Regional Health has partnered with municipalities and other governmental and non-governmental entities to extend its fiber routs to form a self-healing loop and reaching additional provider locations. St. Vincent Health, Inc.. St. Vincent Health, Inc. is a nonprofit, spiritually centered health system, sponsored by Ascension Health of St. Louis, MO., the nation s largest Catholic health system. St. Vincent Health has 20 health ministries serving 47 counties in central and southern Indiana. St. Vincent Health is comprised of 1 quaternary facility, 3 tertiary hospitals, 8 critical access hospitals, 7 specialty hospitals, and several joint venture partnerships and clinical affiliations. St. Vincent Health is a member of Suburban Health Organization and participant in the Indiana Telehealth Network. In the alternative, request to late file comments in opposition to the Petition. To the extent any of Commenters' comments are deemed comments in opposition to the Petition rather than Reply comments, Commenters respectfully request the Commission grant 3

4 Commenters leave to late file opposition comments and receive these comments as such late filed comments. The sale of excess capacity at the fair share price removes these services from the scope of funding of the Healthcare Connect Fund, therefore the resale prohibition is not applicable. With respect to the argument put forth by USTA and AT&T, these arguments simply overlook the thoughtful structure of the program prepared by the FCC through which excess capacity (just like ineligible entities) is excluded from funding under the Program and therefore not subject to the resale prohibitions set forth in the authorizing statute. In order for a service to be resold and violate the prohibition against resale under the Universal Service Fund, it must first be funded by the Universal Service Fund. Section 254 does not provide a general prohibition on the resale by health care providers (or any other entities) of excess capacity, rather it prohibits the resale of services when such services are originally funded by the Universal Service Fund. If an ineligible entity pays its fair share, it is not receiving any benefit or funding through the Program and therefore such transaction is exempt from the limits of the Program. The FCC s cost sharing mechanism ensures that services which may ultimately be resold are excluded from and outside the limitations of the Universal Service Fund. USTA and AT&T argue that allowing excess capacity to be built in association with a Program funded project would create an environment that does not encourage free market competition. To the contrary, the Program will only fund a project for fiber ownership when it is established in the market through the Program competitive bidding process that fiber ownership is the least cost alternative. One of the purposes of the Universal Service Fund is to ensure Quality services [are]available at just, reasonable and affordable rates. (47 U.S.C. 254(b)(1)). The Commission is not directed to preserve for carriers geographic monopolies or an exclusive 4

5 market, rather it is instructed to utilize the funds to bring advanced communication services to designated populations at reasonable and affordable rates. When carriers are not willing to perform this obligation through rates established through an open and public bidding process, then other parties should be provided the opportunity to fill the need to bring such advanced services, such as dark fiber. Dark fiber is a service. USTA asserts that there is some distinction between facilities and services within the arena of communication services. A dark fiber cable alone is one component of a communications service much like the point-to-cloud line is one element of a shared service. USTA has not challenged the ability of a hospital to acquire an OC3 circuit or other similar communications circuit nor has it challenged that an OC3 is nearly a facility. When an additional layer of communication services in layered on top of an OC3 or other circuit, the service provider may provide a more complex communication service such as an OPT-E-MAN or self-healing ring. It is necessary and appropriate that every layer of a communications network be considered a communications service. When the incumbent carrier elects not to negotiate or provide a requested service, and no competitive alternate is available, fiber ownership is the only choice for a healthcare provider to deploy advanced healthcare technology. Fiber ownership provides a competitive alternative which ensures incumbent carriers will negotiate to provide solutions which meet the technical requirements of advanced healthcare technology such as specific network service quality, packet routing and security protocols. The rural population and eligible health care providers should not be limited in the deployment of technology to only those connection speeds, rates and quality that carriers are willing to deliver and be held contractually responsible for delivering. By 5

6 preserving for eligible entities, the right to acquire facilities as a service 4, the Commission will ensure that health care providers, not carriers, can ultimately make the determination of what technology will best serve the resident rural population. As has long been found by the Commission, dark fiber is just like any other service provided by communications service providers. In this case, USTA s objection is self-serving to restrict hospitals from receiving the benefit of a competitive market when the underlying carriers are unable or unwilling to provide the necessary communications, infrastructure on a least cost basis. As was noted by the FCC, funding of the dark fiber will only be available in those circumstances and situations in which dark fiber serves as a least cost solution to fulfill the health care provider s requirements. The requirement by the FCC that the dark fiber purchase fulfills this least cost requirement ensures that there will not be an abundance of dark fiber within the market and serves to ensure that rural health care providers are not held hostage to the limited choices they have for communications services, further ensuring that federal funding and the development of network is done efficiently and on a least cost basis. The Broadband reporting requirement should rest with the Carrier. In order to ensure that eligible providers in the program receive the services promised by carriers as the eligible service, the Order obligates carriers to report certain characteristics of the services provided. AT&T and USTA seek reconsideration of this component of the Order. Delivery of the services pursuant to a signed agreement between the eligible provider and the carrier is a carrier obligation both under contract and as a participant under the program. HCPs may monitor connection speeds and network functionality, however the obligation to 4 Facilities or Hardware as a service is a growing trend within the healthcare industry. Much like fiber ownership, hardware as a service, as compared to software as a service, allows a health care provider to maintain greater control on the development and security of its IT platform. 6

7 deliver services pursuant to agreements that have been openly bid through the RFP process should stay with the carrier. Providers are ill equipped to monitor the level of service received, particularly in cases of shared platform services (e.g. AT&T's OPT-E-MAN) for which carriers may oversubscribe customers. 5 If a carrier fails to deliver the services as contracted liability for a refund would, and should, rest with the carrier not the health care provider who has not received the connectivity promised under contract. Since liability for recoupment for failure to deliver services in accordance with the approved service agreement would rest with the carrier, the reporting obligation to evidence delivery of such service should likewise rest with the carrier. Existing Agreements of Healthcare Providers should be voidable when the Carrier ceases to be the least cost alternative. AT&T expresses concern regarding events which might force a carrier to participate in the Healthcare Connect Fund. 6 Specifically, AT&T argues that a carrier should not, by the election of the eligible healthcare provider, be forced to abide by the reporting obligations set forth in the Order. AT&T is correct that a carrier does not affirmatively accept the obligations of the Healthcare Connect Fund when it enters into an Agreement with a healthcare provider outside of the procedures established within the Order. Healthcare providers similarly must evaluate the costs and benefits of exiting existing agreements as part of the bid evaluation 5 AT&T has challenged the Commission s determination regarding the sale of excess capacity of a healthcare provider s networks, arguing that excess capacity cannot be sold or resold. If, on reconsideration, the Commission finds that it is prohibited from allowing healthcare providers to sell excess capacity, then the Commission should uniformly apply the rule regarding the prohibition on resale of services acquired through the Universal Services Fund to carriers as well, and restrict Carriers from reselling of capacity purchased under the Universal Service Fund through oversubscription models; capacity in a subscription service, such as OPT-E-MAN, cannot be resold by the carrier through oversubscription to the service. 6 "it would be inaccurate to say that service providers essentially agree to the reporting obligations in section (b) when they affirmatively decide to participate in the Healthcare Connect Fund program. Under the Commission's new rules, a service provider may end up being a Healthcare Connect Fund vendor because the HCP opts to take services out of an existing government Master Services Agreement (MSA), Pilot Program MSA, evergreen contract that is designated as evergreen under the Healthcare Connect Fund or an E-rate contract."(internal citations omitted), Comments of AT&T in Support of USTELECOM'S Petition for Reconsideration and Clarification, at page 8 7

8 process in the event such incumbent provider is not the "least cost" provider as established through the competitive bidding process. In order to address the concern of USTA and AT&T with respect to the imposition of reporting obligations on unwilling carriers, the FCC should consider making any existing agreements (or service orders) voidable without imposition of early termination costs or fees, imposition of minimum monthly commitments or acceleration of fees or charges, by either the carrier or the eligible healthcare provide when such services are submitted to the competitive bidding process established under the order. By declaring such existing agreements voidable the FCC will address AT&T s concern regarding the imposition of program reporting obligations on unwilling carriers and further ensure the validity of the competitive bidding process by removing any consideration of termination costs associated with incumbent vendor relationships. Respectfully submitted, SUBURBAN HEALTH ORGANIZATION SOUTHERN OHIO HEALTH CARE NETWORK ADENA HEALTH SYSTEM HENDRICKS REGIONAL HEALTH ST. VINCENT HEALTH By: Michael T. Batt Hall Render Killian Heath & Lyman, P.C. One American Square, Suite 2000 Indianapolis, IN Tel: (317) May 20, 2013 Their Attorney v1 8