Tuesday, February 9, 2016

Hospital Company Sued Under FCC's Tighter TCPA Rules

In September 2015, we reported on the Declaratory Ruling and Order issued by the Federal Communications Commission (FCC) on July 10, 2015. In short, this ruling clarified several exemptions under the Telephone Consumer Protection Act (TCPA) regulations common to healthcare organizations. These issues were raised in a petition filed by the American Association of Healthcare Administrative Management (AAHAM) regarding the exemption from prior express consent of “healthcare-related messages.” [For a thorough breakdown of the ruling and its component parts, please see our post “Deconstructing the FCC’s Declaratory Ruling on TCPA Regulations.”]

Now, Prospect Medical Group’s Southern California Hospital at Culver City is one of the first providers to be targeted with a class-action lawsuit since the FCC’s July interpretive ruling. The lawsuit alleges that the hospital used an automated dialer to call patient Donna Ratliff on her cellphone in order to collect a debt and did not have her express consent to do so.

In its ruling, the FCC made it clear that debt collectors need express consent before dialing a cellphone and gave little leeway for when they reach a number that's been reassigned.

As of January 28, 2016, Prospect Medical Group claimed it was not formally served with a complaint. Yet, the company insisted it follows the necessary practices to obtain consent to call patients on their cellphones in that “all [of our] patients are asked to sign an irrevocable authorization permitting our hospitals to contact them via telephone—including, specifically, via cellphone—in their efforts to collect outstanding debt."

Attorney Bradley Andreozzi of Drinker Biddle suggests the best policy for any hospital is “to have written consent during the admissions process that is broadly worded to include all types of automated calls and texts.”

TCPA violations are already an active area for plaintiffs, with TCPA-related lawsuits increasing 560% between 2010 and 2014, according to ACA International, the Association of Credit and Collection Professionals. Penalties for TCPA infractions start at $500 per call and can reach as much as $1,500 for willful violations.

Still, the most controversial part of the FCC ruling – when a debt collector reaches someone in error – is left unexamined. The FCC allows medical debt collectors to call a number just once without penalty, regardless of whether someone picks up. ACA International has sued the FCC challenging the July order.

In sum, attorney Lewis Wiener of Sutherland, Asbill, & Brennan asserts that the best way for providers to protect themselves is to have a rigorous process for getting consent, use broad language, respect the wishes of those individuals who “opt out,” and whenever possible, use email to create a paper trail.

Has your organization developed a new protocol for obtaining patient consent in light of the FCC ruling? Do you feel sufficiently protected from exposure to litigation? Let us know your concerns in the comments below.

The original article by Beth Kutscher can be found at the following address: http://www.modernhealthcare.com/article/20160128/NEWS/160129854

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