Mintz Levin's Communications Practice recently released a Communications Advisory discussing a Declaratory Ruling and Order released by the Federal Communications Commission (FCC). The ruling clarified and expanded the reach of the Telephone Consumer Protection Act (TCPA). While the ruling is broad in its subject matter, part of the ruling specifically addresses so-called "robocalls" made by health care providers.
The portions of the ruling related to health care were the result of a petition filed by the American Association of Healthcare Administrative Management (AAHAM). AAHAM's petition primarily related to the TCPA's consent requirements. FCC rules generally require that callers obtain the prior express consent of the called party before calls or text messages are made to wireless phones using autodialing equipment or an artificial or prerecorded voice.
In response to the petition, the FCC ruling clarifies that an individual's act of providing their phone number to a health care provider constitutes prior express consent under the TCPA. AAHAM also asked the FCC to clarify that consent would be properly obtained if it was given by a third party on behalf of an incapacitated patient. The FCC agreed and clarified that such consent would be sufficient.
AAHAM had also sought an exemption to the consent requirements for certain types of health care related calls that convey vital time-sensitive information that, in the words of AAHAM, "patients welcome, expect, and often rely on to make informed decisions." The FCC largely agreed with AAHAM's position, and granted an exemption from TCPA consent requirements for some autodialed calls and text messages “for which there is exigency and that have a healthcare treatment purpose.” However, the FCC specifically ruled that other types of non-exigent calls, including those related to account communications and payment notifications, do not qualify for the exemption.
In particular, the ruling exempts from the consent requirements the following types of calls:
- appointment and exam 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.
In order to be exempted, calls and texts from the above list must satisfy the following requirements:
- be without charge to the patient (including not being charged against any calling plan limits that may apply);
- be made only to the number provider by the patient;
- include the name and contact number of the healthcare provider;
- be limited to the authorized purposes and not include any advertising, telemarketing, debt collection, billing, accounting, or other financial content;
- be concise, generally one minute or less for voice calls and 160 characters or less for texts;
- be limited to no more than one message per day, up to a maximum of three per week, for each healthcare provider;
- offer an easy method to opt out of receiving future messages, including an interactive method for voice calls and a “STOP” reply for texts; and
- immediately honor an opt-out request.
In granting this exemption, the FCC made clear that the Health Insurance Portability and Accountability Act of 1996 (HIPAA) controls the content of the messages, where applicable.
The rulings in the FCC’s order are effective immediately, including the exemption for healthcare-related calls without prior consent. This means providers can more easily communicate important information to patients. Significant restrictions remain, however, on other types of calls providers may make – particularly calls that include advertising or telemarketing content – and careful compliance review of provider calling campaigns remains good practice. Generally, it is recommended that health care providers adopt specific policies and procedures to ensure, among other things, the accuracy of the data they are using for their calling campaigns, as well as continued compliance with HIPAA and other privacy laws.