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The Healthcare Act You Don’t Know

on Tuesday, 2 February 2021 in Health Law Alert: Erin E. Busch, Editor

While not the first Act that comes to mind associated with healthcare, healthcare entities should remain on notice of the Telephone Consumer Protection Act (“TCPA”). The TCPA regulates the use of automatic telephone dialing systems (“ATDS”) in making calls or sending text messages and the use of a pre-recorded or artificial voice messages. This includes telemarketing calls, text messages from a political action committee soliciting for donations, and notably, healthcare providers sending automatic appointment reminders. For example, healthcare providers making automated or pre-recorded calls for case management, preventive medicine, or regarding use and maintenance of medical benefits must comply with the TCPA. In June, the Federal Communications Commission (“FCC”) issued a Declaratory Ruling and Order rejecting Anthem’s request for exemptions from the burdensome requirements of the TCPA for these types of healthcare related calls. Subsequently, in December, the FCC issued an order implementing new requirements to current exemptions from the TCPA. Both the June Anthem ruling and recent FCC order serve as a reminder of the scope of TCPA. In light of the risk of a hefty fine for non-compliance, it is important to continually review general implications, recent guidance and steps for compliance.

In 1991, the TCPA was enacted with the intent to prohibit telemarketing, debt collection calls, and other entities from reaching consumers through their cellular phones without their consent. The TCPA restricts telephone calls using any ATDS or artificial or prerecorded voice to any cellular telephone service for which the called party is charged for the call (47 U.S.C. § 227(b)(1)(A)(iii)). The goal is to limit unwanted pre-recorded or automated calls to consumers by requiring prior consent. In practice, the TCPA includes cellphone and text messages. When messages or calls are pre-recorded or sent through automated dialing systems, there must be prior express consent. The FCC has issued limited exemptions from the TCPA but these are very narrowly construed.

While the TCPA is most commonly associated with other industries, there are huge implications for healthcare providers, as the FCC Anthem ruling unveiled. First and foremost, an entity complying with the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) is not necessarily in compliance with the TCPA. HIPAA and the TCPA regulate different parts of communication: content versus method of communication. “HIPAA regulates the content of communications (to ensure the privacy of patient information) whereas the TCPA regulates the methodology of the communication (to restrict calls and texts made using an autodialer or an artificial or prerecorded voice, and made without the prior express consent of the called party).” Furthermore, the FCC failed to provide the catchall exemption for healthcare providers that Anthem requested.

If an entity does not fit squarely within the FCC defined exemptions from 2012, 2015, or the latest COVID declaratory ruling, the entity must offer prior express consent to communications in a clear and conspicuous manner and the individual must have agreed unambiguously to receive such calls. On December 30, 2020, the FCC released a Report and Order targeted at the existing exemptions. First, the TCPA amended the requirements for exemptions for calls made to residential telephone lines, which includes HIPAA-related calls to an individual’s residence. There is now a limit to the number of calls made to the party within a specified time frame that varies based on the exemption. Additionally, all the exempted calls to a resident must provide a process for the consumer to opt-out. For HIPAA-related calls, this is restricted to “one artificial or prerecorded voice call per day up to a maximum of three artificial or prerecorded voice calls per week.” This change makes the exemption for HIPAA-related calls consistent with the requirements for the exemption for healthcare related calls. Finally, rather than read through the FCC’s different declaratory rulings to decipher the exemptions, the FCC has codified the existing exemptions into the rules as to be “more clear and understandable for both callers and consumers.”

Another complexity for complying with the TCPA is understanding the definitions. Currently, different federal appellate courts have split on their interpretation of the meaning of ATDS and its potential scope. The ATDS is generally considered a dialing system that has “capacity” to dial or message numbers without human intervention. For example, does this include all dialing systems that have the “capacity” to dial in an automatic way or are using this automatic feature? On December 8, 2020, the U.S. Supreme Court heard oral arguments to resolve the discrepancies with the term of “automatic telephone dialing systems.” Some fear expanding the scope of ATDS would broaden the TCPA’s reach to include the very cellphone we all use, and thus make all individuals subject to the TCPA. If ATDS is construed narrowly, the force of the TCPA may be limited and consumers could see a heightened number of robocalls and messages that the TCPA sought to limit.

The recent Anthem ruling and future U.S. Supreme Court decision emphasizes the importance of complying with the TCPA. When making calls for case management, preventive medicine, or calls regarding use and maintenance of medical benefits, there must be prior express consent before making the call. The provider cannot rely on a method for patients to opt out after the call was made. Therefore, an entity must develop processes for prior express consent to the communicated individuals and confirm this consent exists before a phone call or message is sent, whether employees or patients. Entities must remain vigilant and ensure their procedures for communications comply with the requirements for both HIPAA and the TCPA.

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