The Federal Communications Commission (FCC) issued a Declaratory Ruling and Order (Declaratory Ruling) on July 10, 2015 in response to 21 separate requests seeking clarifications to the Telephone Consumer Protection Act (TCPA). The Declaratory Ruling has acute implications for any organization that uses an autodialer or prerecorded messages to make non-emergency calls to wireless phones without obtaining the consumer’s prior express consent.
The healthcare industry got into the ring with the FCC and won important concessions to the TCPA further clarifying its governance with healthcare. After a hard-fought boxing match, the July 10th ruling will allow healthcare entities greater flexibility in communicating with their patients.
The TCPA, ratified in 1991, was created to protect consumers from uninvited telemarketing calls, faxes and text messages. TCPA identifies the requirements by which a business may promote its products and services to consumers. Unambiguously, the TCPA prohibits the use of automated dialing systems that use live operators and pre-recorded voice messages without obtaining the recipient’s prior consent.
3. Text messages: A text message is sent via a short message service (SMS) and messages containing image, video and sound content that are called multimedia messaging service (MMS). The TCPA considered these types of communications “calls” and they have the same requirements as other calling formats.
On October 16, 2013, the FCC revised its TCPA guidelines; further restricting telemarketing calls. Adjustment of the TCPA requires the prior written consent for most automated telemarketing communications, particularly those made to cellphones.
Since the healthcare industry is dissimilar to any other business or organization, the FCC’s July 10, 2015 Order outlines an assortment of healthcare-specific exemptions to the TCPA for some important healthcare calls. These exemptions are restricted to a number of requirements and conditions and do not provide an overarching exemption to TCPA liability.
A critical clarification was addressed from a petition filed by the American Association of Healthcare Administrative Management (AAHAM) in October 2014 regarding “free, pro-consumer healthcare-related messages” and under what circumstances such messages are exempt from the TCPA’s requirement for prior expressed consent. This petition sought clarification on exemptions that are currently found in the TCPA for calls subject to the Health Information Portability and Accountability Act (HIPAA).
The HIPAA exemption in the TCPA regulations currently extends to advertising and marketing calls to cell phones and residential landline phone numbers. The exemption provides for calls that deliver a healthcare message made by or on behalf of a “covered entity” or its “business associate,” as those terms are defined in HIPAA and do not require the prior express written consent of the called party. What has been confusing is whether non-telemarketing calls (i.e., informational or transactional calls) that deliver healthcare messages require any type of consent at all. The FCC’s response to the AAHAM petition8 helps to answer that question.
AAHAM requested that the FCC clarify how calls can be made subject to the HIPAA exemption, an individual’s voluntary provision of his or her cellular telephone number to a healthcare provider constitutes prior express consent to be called on that number. The FCC has previously declared in other contexts that an individual’s provision of his or her cell phone number is effectively an invitation to be called on that number, as long as the calls or texts are limited in scope to the purpose the number was provided in the first place. In its July 10, 2015 Ruling, the FCC extended that reasoning to calls and texts in the healthcare context, and agreed that healthcare providers can rely on the voluntary provision of a cell phone number as constituting prior express consent under the TCPA. This exemption is tied specifically to HIPAA and its defined terms. Thus, only HIPAA-covered entities and their business associates, as those terms are defined in HIPAA, can make healthcare calls subject to this exemption. As with other types of calls, this HIPAA healthcare exemption is also limited in scope: the calls must be within the scope of the consent given and not regarding some unrelated topic.
1. An individual’s provision of his or her cell phone number is effectively an invitation to be contacted at that number, as long as the calls or texts are limited in scope to the purpose the number was provided in the first place. Healthcare providers can rely on the voluntary provision of a cell phone number as constituting prior express consent under the TCPA.
2. In situations where a patient is incapacitated and unable to provide a telephone number directly to a healthcare provider, a third party HIPAA-covered intermediary is allowed to provide a number. Consent by a third party on behalf of an incapacitated individual will end when the individual is no longer incapacitated, at which time the provider must get prior express consent from the individual being called.
4. Healthcare calls related to accounting, billing and debt-collection or containing other financial content are not part of this exemption.
– The exclusive method for opting out of text messages is for the recipient to reply with the word “STOP.” Recipients must be given this instruction.
Litigation risk under the TCPA can be substantial. Because the TCPA provides for strict liability and statutory damages of $500 per violation (and up to $1,500 if the violation is deemed willful or knowing) with no maximum cap on recovery, potential exposure in a TCPA class action can quickly escalate. For example, the top four TCPA settlements in 2014 totaled more than $175 million.
While the litigation in the United States Court of Appeals goes on, what can healthcare do to protect itself from receiving a TCPA knock-out punch?
– Check the messaging that is taking place in those wireless calls to ensure that the calls are meeting the requirements above.
This clarification from the FCC helps to better identify which healthcare-related calls do not require consent, and which still might require the prior expressed consent of the patient. All healthcare organizations intending to follow newly created exemptions through automated calling or text messaging should pay specific attention to the details of these new requirements and be on the lookout for potential litigation risk.
2. Various organizations filed a total of 21 petitions with the FCC.
Phil C. Solomon is the publisher of Revenue Cycle News, a healthcare business information blog. He serves as the Vice President of Global Services for MiraMed, a global healthcare Business Processing Outsourcing services company. Phil has 25 years of experience in healthcare as an industry thought leader, strategist, solution provider, author and featured speaker. In this blog, you will read about important industry updates, strategies for improving financial performance, and commentary that challenge the status quo.
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