The new Notice of Proposed Rulemaking and Further Notice of Proposed Rulemaking is available online. I'll try to blog about all the new rules eventually, but of course I'm going to start with the proposed rules for consultants. And as usual, I'll be shooting from the hip.
Establishing a Definition of "Consultant": “any non-employee working on behalf of a school, library, consortium that includes an eligible school or library, or service provider that participates in or is seeking to participate in the E-Rate program and who assists the school, library, consortium that includes an eligible school or library, or service provider, whether or not for a fee, with any aspect of participating in the E-Rate program, including, but not limited to, the application, competitive bidding, or disbursement processes.” OK. That seems general enough to encompass all sorts of consultants, but specific enough to give a clear idea what we're talking about. It's clear from their examples that they're thinking more about consultants who are helping applicants than consultants helping service providers, but the definition itself is OK. Except there are people (knowledgeable parents, for example) who informally assist with applications; would they have to get CRNs? What if an applicant hired an engineering firm to write up the specs for a 470?
Requiring an Annual Consultant Certification and Disclosure Form: Seems odd that the form already has a number, since this is just in the ruminating phase, but OK.
"...there are documented instances of misconduct by consultants...." This gets my goat a little, since there are more documented instances of misconduct by applicants and service providers. Because every instance that I can think of where a consultant was involved, so was an applicant or a service provider. And there are instances of misconduct between applicants and service providers where no consultant was involved. Yet we're only focusing on individual consultants, not on applicant or service provider employees.
"...we propose that the consultant certification form require consultants to certify to their compliance with and knowledge of all applicable E-Rate program rules...." If we're going to have to certify that we know all the rules, it seems like they should tell us what all the rules are. As I've suggested many times, USAC should compile all the rules into one rulebook (or more realistically, one rulesite), and the FCC should approve it annually. As it is now, some rules are only found in a footnote of some order or other. Other rules are found in places like the instructions for item 5a of the Form 471. (I wonder if those instructions will change now that the FCC has changed the rules for consortia with ineligible members.) Sometimes, a rule can be found in a years-old PowerPoint slide from USAC. And worst of all, the 700 pages of secret rules that we can only learn through years of dealing with PIA. It would take an absurd amount of reading to have knowledge of all rules. You can't expect me to certify that I know all the rules if you won't tell me what all the rules are. Sure, I know a lot of rules, but no one can have knowledge of all of them. And really, let's say I'm a consultant who aggregates 470 information and delivers it to service providers in a useful way; why should I have to know the rules about 486 deadlines? Or would the 486 rules not be part of "all applicable rules" for that consultant?
"we further propose requiring certain disclosures on the form by consultants, including: (1) the consulting firm(s) and/or company(ies) for whom the consultant is currently working and (2) any association and/or relationship the consultant may have that could potentially pose an actual conflict or an appearance of a conflict of interest." Well, I can already tell you every applicant that a particular consultant works with thanks to OpenData. But consultants that provide service to service providers are not similarly exposed, so I guess it would be good to make them share. And sure, ask consultants to share any conflicts of interest; maybe some dishonest consultant will be stupid enough to share that info.
I'm not sanguine about the form doing much good, because the problem with certifications is that they only catch the honest and the stupid.
"...track potential bad actors across multiple consulting firms and/or multiple E-Rate applications...." Wait, are we talking about listing individuals on these certification forms? Like, all the employees in a consulting firm? That seems like a big sea of info to try to keep afloat in. And a lot of work for applicants and service providers. Make consulting firms file a list of their employees.
Should the form be submitted with the 470 or 471 or 472/474? Should applicants and service providers be required to submit updates when an individual consultant moves? I'd say for service providers, it should go on the SPAC. For applicants, it should be due every July 1st). If consulting firms are going to be required to file, that should be every July 1st, too.
"...what should the consequences be for failing to submit the consultant certification and disclosure form?" Suspend processing any form (PIA, invoice review) until the form is submitted. But make it like the SPAC, where each form covers a particular funding year. Since they'll be filed at the start of the funding year, everyone will have plenty of time to get the forms in before the suspensions kick in.
"Should the consultant be referred to the Suspending and Debarring Official (SDO) for potential suspension and debarment proceedings under the Commission’s rules?" So if an applicant or service provider fails to turn in a form, consultants who should be on the non-existent form get debarred? First of all, how are you going to determine which consultants would have been on the form? Second, why punish the consultant for an applicant/service provider failure to file?
"What consequence(s) should there be for submitting false statements on the form?" Well, debarment OK for consultants; they should know better. And if applicants and service providers knowingly submit false information, suspension for the first offense, debarment for the second. But cut applicants and service providers some slack if they make a mistake. Fines and imprisonment should be reserved for individuals who improperly profit from the program, not for people who fill out forms incorrectly.
Creating a Consultant Registration Database: "...assign every individual consultant a Consultant Registration Number (CRN)." Oy. My first reaction is "what a headache!" But thinking it over, all our employees already have an individual login; what do I care if USAC attaches a CRN to it? It kind of seems like a solution in search of a problem, though. Why track individuals? Are there really consultants out there who get caught being naughty at one firm, then jump to another? Or consultants working at two firms simultaneously? What misbehavior is this going to catch? Are applicants going to have to list every individual consultant who assisted with a form? What about a consultant who helped with planning or competitive bidding, but not with filling out any forms?
"...consultants complete a mandatory E-Rate and anti-fraud training ... on an annual basis...." Sure. If they offered it now on a voluntary basis, I'd take it. I don't think I'd learn much, but that's true of USAC's annual training for applicants, and I always go to that. And as an E-mpa® Certified E-Rate Management Professional (CEMP), I'm required to do hours of continuing education, so I could use the course to satisfy part of that requirement.
"...we seek comment on the information to be collected as part of this database...." I don't really see the need to give up my home address and phone number or a personal email address, much less any part of my social security number. To what use would that info be put? Would it be available to someone who submitted a FOIA request? How would any of that information be used to verify my identity?
"Are there any benefits to making some of the data in the consultant database public...?" Yup. Name and consulting firm. So I could do a quick check to see who this person's working with. If I had suspicions about someone, I'd want that info (or lack of info) before reporting my suspicions to USAC.
"...we propose to direct USAC, in the interim, to establish a process for consultants to receive an individual CRN using the existing CRN process...." Not worth the trouble. Let USAC take the time to do it right.
Prohibiting Percentage-Based Fee Arrangements with Consultants and Clarifying the Type of Consultant-Related Documentation Applicants and Service Providers Should Retain: We have some clients that pay us a fee based on a percentage of the funding they receive. I'd be fine with moving them all to a flat fee. In fact, I suggest that any time we talk fees, but some clients just prefer to pay a contingency. It does create a perverse incentive for me to have them spend more on E-Rate-eligible goods and services, but it's a small incentive and I always point it out to clients if we're discussing what services they should order. But this "raise questions about whether E-Rate dollars are being used to pay for ineligible services" stuff is just nonsense. Of course E-Rate reimbursements will be spent on ineligible services; an applicant's eligible services are what they're getting the reimbursement for. If a small applicant gets, say, $5,000 reimbursement from their Internet service, do they have to spend that on more eligible services? Of course not. If they were planning to buy other eligible services, those services would have been on a 471.
In summary, not as terrible as I'd feared. I'm not convinced it will catch much waste, fraud or abuse, but with a couple of exceptions, the extra work is not too heinous.
No comments:
Post a Comment