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Paul Zimmerman
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FCC Clarifies TCPA Exemptions for Health Care Calls

In 1991, Congress passed the Telephone Consumer Protection Act (“TCPA”), which was enacted to protect the privacy interests of consumers by placing restrictions on unsolicited contacts from automated telephone calls, facsimile machines and automatic dialers. Over the years, the TCPA has evolved with technology, and now encompasses cellular phone and text messaging contacts as well. Essentially, an organization cannot call, fax or text to solicit business or “robocall” people unless that person has given prior express consent to be contacted.  In certain circumstances, the restrictions are even more onerous, requiring prior express written consent. The effects on the health care industry have been enormous, and have impacted the way that industry professionals communicate with patients to provide important health care information—ranging from treatment to follow up, appointment reminders, prescription refills, and even to billing, account and collection related information.

In October, 2013, the FCC carved out some narrow exceptions for the health care industry, allowing providers to send artificial/prerecorded voice messages to land lines, without prior written consent for “health care messages” as defined by HIPAA. The FCC’s reasoning was clear: these calls serve an important public interest purpose—continued consumer access to health care-related information.  However, the FCC’s changes failed to take into account the emergence of cellular phone technology as patients’ primary or preferred mode of communication, leaving a significant gap in the scope and benefits of the exemption. Specifically, while the FCC carved out some “consent” exemptions for health care information communicated to land lines, consent was still required for calls to wireless numbers.

On July 10, 2015, the FCC finally addressed the issues raised by the health care industry concerning the TCPA’s failure to keep up with emerging technology as it relates to mobile phones. Critically, the FCC issued a new Declaratory Ruling/ Order which clarified and expanded the health care exemptions to cover wireless/ cellphones, permitting health care providers to place artificial/ prerecorded voice and text messages to cellphones, without the consumers’ prior express consent, written or otherwise, in order to convey important “health care messages” as defined and covered by HIPAA. In issuing this Order, the FCC acknowledged that increasing numbers of people do not have land lines. These exemptions include health care messages relating to:

  • Appointments and exams;
  • Confirmations and reminders;
  • Wellness checkups;
  • Hospital pre-registration instructions;
  • Pre-operative instructions;
  • Lab results;
  • Post-discharge follow-up intended to prevent readmission;
  • Prescription notifications; and
  • Home healthcare instructions;

A crucial component of this exemption is that consumers not be “charged” for the call or text message.  The FCC declared that the exemption applies to robocalls and texts to wireless numbers only if they are not charged to the recipient, including not being counted against any plan limits that apply to the recipient (e.g., number of voice minutes, number of text messages).  However, the exemption was not unlimited.  Health care providers, even in delivering the now-exempt “health care messages” described above, must still abide by the following in order to remain in compliance with the TCPA:

  • Voice calls and text messages must be sent, if at all, only to the wireless telephone number provided by the patient;
  • Voice calls and text messages must state the name and contact information of the health care provider (for voice calls, these disclosures would need to be made at the beginning of the call);
  • Voice calls and text messages are strictly limited to the purposes permitted above; must not include any telemarketing, solicitation, or advertising; may not include accounting, billing, debt-collection, or other financial content; and must comply with HIPAA privacy rules ;
  • Voice calls and text messages must be concise, generally one minute or less in length for voice calls and 160 characters or less in length for text messages;
  • A health care provider may initiate only one message (whether by voice call or text message)per day, up to a maximum of three voice calls or text messages combined per week;
  • A health care provider must offer recipients within each message an easy means to opt out of future messages, and voice calls that could be answered by a live person must include an automated, interactive voice  and/or key press-activated opt-out mechanism that enables the call recipient to make an opt-out request prior to terminating the call;
  • Voice calls that could be answered by an answering machine or voicemail service must include a toll-free number that the consumer can call to opt out of future health care calls, text messages must inform recipients of the ability to opt out by replying “STOP,” which will be the exclusive means by which consumers may opt out of such messages;
  • A health care provider must honor the opt-out requests immediately;
  • The exemption applies to robocalls and texts to wireless numbers only if they are not charged to the recipient, including not being counted against any plan limits that apply to the recipient (e.g., number of voice minutes, number of text messages) and the health care providers complies with the enumerated conditions we adopt today

While the 2015 exemptions recognized by the FCC opens the door for increased communication by health care providers with patients to convey important health care information to both landlines and wireless numbers, the FCC established a crucial distinction between these types of health care messages—which it deemed crucial to patient care and which provide vital, time-sensitive information that patients welcome, expect, and often rely on—from calls that concern:

  • Telemarketing;
  • Solicitation; or
  • Advertising content; or
  • Accounting, billing, debt collection, or other financial content

The FCC has declared that it fails to see the same exigency and public interest in calls regarding account, financial communications, payment notifications, or Social Security disability eligibility. The FCC stated that it does not find that these calls warrant the same weight as calls for health care treatment purposes.  It concluded that timely delivery of these types of messages is not critical to a called party’s health care, and that such calls therefore do not justify setting aside a consumer’s privacy interests in favor of an exemption for them. 

As a result of the distinction recognized by the FCC in its recent Declaratory Order, health care providers must take careful note of these differences. Knowing the distinction can make the difference between compliant health care contacts to patients, and a consumer driven class action lawsuit the TCPA allows for a $500 to $1,500 per violation per class member for contacts that fall outside the TCPA’s exemptions and compliance parameters.

This article is not offered as, and should not be relied on as, legal advice. You should consult an attorney for advice in specific situations.