Deconstructing the FCC’s Declaratory Ruling on TCPA Regulations – What it Means for Healthcare Providers

The Federal Communications Commission (FCC) issued a Declaratory Ruling and Order on July 10, 2015, clarifying several exemptions under the Telephone Consumer Protection Act (TCPA) regulations common the healthcare organizations.  These 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”.  

The HIPAA exemption in the TCPA regulations currently extends to advertising and marketing calls to cell phone and residential landline phone numbers. Under the exemption, calls that deliver a healthcare message made by or on behalf of a “covered entity” or its “business associate,” as defined in HIPAA, do not require the prior express written consent of the party called. 

The FCC found that for calls subject to the HIPAA exemption, an individual’s voluntary provision of his or her cell telephone number to a healthcare provider constitutes prior express consent to be called on that number. The FCC had already ruled in a different proceeding that 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. The FCC extended that reasoning to calls and texts in the healthcare context.  It is important to note that only HIPAA-covered entities and their business associates can make healthcare calls subject to this exemption and calls must be within the scope of the consent given. 

The FCC also addressed situations where a patient is incapacitated and unable to provide a telephone number directly to a healthcare provider, while a third party intermediary may be able to provide a number.  The FCC ruled that where a party is unable to consent because of medical incapacity, prior express consent to make healthcare calls subject to HIPAA may be obtained from a third party.  Consent by a third party on behalf of an incapacitated party will end when the party is no longer incapacitated.  In such an instance, the provider must get prior express consent from the party being called. 

The FCC also clarified that certain free-to-end-user non-telemarketing healthcare calls are exempt from the prior express consent requirement.  The FCC found that such calls can provide vital, time-sensitive information that patients welcome, expect and often rely on to make informed decisions. 

The FCC found that acceptable calls that fall under this “free-to-end-user” call exemption include –

 
·        Appointment and exam confirmations and reminders

·        Wellness check-ups

·        Hospital pre-registration instructions

·        Pre-operative instructions

·        Lab results

·        Post-discharge follow- up intended to prevent readmission; prescription notifications

·        Home healthcare instructions

It is important to note that the FCC made clear that healthcare calls related to accounting, billing, debt collection or containing other financial content are not part of this exemption. 

Also, the content of the exempt calls are still subject to HIPPA privacy rules.  The FCC said, "The information provided in these calls and texts “must not be of such a personal nature that it would violate the privacy of the patient if, for example, another person received the message.”

Exempt calls are subject to these FCC imposed limitations –

 

1)     Calls must be free to the end user;

2)     Calls must be made by or on behalf of a healthcare provider;

3)     Calls can only be made or sent to the cell phone number provided by the patient;

4)     Calls or texts must state the name and contact information of the healthcare provider;

5)     Calls or texts must be “concise” (one minute or less for voice calls and 160 characters or less for text messages);

6)     Healthcare providers may only make one exempt call or send one exempt text per day (per recipient), with a weekly limit of three total calls or texts (per recipient); and

7)     Healthcare providers must offer recipients an opportunity to opt out of receiving these types of calls or texts, and honor those opt outs immediately. 

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.

Did the FCC address your questions regarding your system’s practices?  Do you have any specific practices you are still not sure about?  Let us hear from you.  Chances are other NAHAM members are have the same questions and are finding answers.

The FCC’s Declaratory Ruling and Order may be found at its webpage using this address: https://www.fcc.gov/document/tcpa-omnibus-declaratory-ruling-and-order.

A “NAHAM TCPA Checklist” as well as a longer version of this blog, NAHAM’s “Deconstructing the FCC’s Declaratory Ruling on TCPA Regulations – What it Means for Healthcare Providers”, may be found on the NAHAM webpage using this address: www.naham.org.

 

 

Congressional Quarterly reports on efforts to create Medicare "Smart Cards"

Congressional Quarterly's CQ News reported "Medicare 'Smart Cards' Pitched as Fraud Prevention" in a report written by Alan K. Ota, September 10, 2015.

Two Illinois Republicans, Representative Peter Roskam and Senator Mark S. Kirk are pushing a plan aimed at replacing traditional Medicare cards with smart cards containing computer chips to guard against fraud and identity theft.

Roskam's proposal, H.R. 3220, the Medicare Common Access Card Act, would create a test program to distribute Medicare common access cards to store personal and health-related data. CQ News reports it is expected to draw broad support as a stand-alone bill or as an add-on to other legislation, as the congressional Republicans hunt for ways to curb the growth of Medicare spending.  This would be encouraging for moving the bill through the important Ways and Means Committee of the U.S. House of Representatives.

Congressman Roskam is quoted as saying that allowing health providers to scan the proposed smart cards would “help close the gap on the more than $1 billion lost every week to false claims.”

On the Senate side, Senator Kirk has offered a similar pilot-program proposal,  S. 1871,also dubbed the Medicare Common Access Card Act.  The Senate legislation has the support of Florida Republican Senator Marco Rubio and Oregon Democrat Senator Ron Wyden, ranking member on Senate Finance. CQ News reports that Wyden called the new cards “a constructive tool” and said he was discussing the issue with Senate Finance Committee Chairman, Utah Republican Senator Orrin Hatch.

The proposals by Roskam and Kirk have support from the Secure ID Coalition, a six-member industry group representing makers of electronic identification cards.

CQ News reports that a recent General Accountability Office study found $60 billion in improper Medicare payments in 2014 that “either were made in an incorrect amount or should not have been made at all.” CQ News also reports that the Centers for Medicare and Medicaid Services estimated that improper payments made up about 12.7 percent of all Medicare fee-for-service payments in fiscal 2014, and the article quotes Paul Van de Water, a senior fellow at the Center on Budget and Policy Priorities, as predicting that the proposal could help curb Medicare fraud by patients but, it would have a limited effect preventing fraudulent reimbursement claims by health care providers.

It is expected that the new Medicare cards would be similar to identification cards issued to employees of the Defense Department and some other federal agencies, which are used to enter government buildings.  The legislation would require the Department of Health and Human Services to provide the smart cards in three areas with a “high risk of fraud and abuse” and further directs the Department to determine the scope of personal and health-related data stored on the chips, along with appropriate privacy protection measures.  The legislation would also encourage participation in the pilot program by those Medicare beneficiaries who say their personal and health-related data has been compromised.

What role would these cards play in improving positive patient identification?  Are these cards a model for government-issued photo IDs?  Let us know your thoughts.

What to expect from trend in hospitals' purchasing physician practices

Kaiser Health News posted an article "When The Hospital Is Boss, That's Where Doctors' Patients Go" and poses the question with competing answers:

Why did hospitals binge-buy doctor practices in recent years?

To improve care coordination, lower costs and upgrade patient experiences, say hospitals.

To raise costs, gain pricing power and steer patient referrals, say skeptics.

Researchers at Stanford University looked into this, using 2009 CMS data.  This summary of findings by KHN caught our eye (emphasis added) -

Ownership by a hospital “dramatically increases” odds that a doctor will admit patients there instead of another, nearby hospital, they found. Worse, from the viewpoint of reformers, it boosts chances that patients will go to higher-cost, lower-quality hospitals.

The findings were published in August by the National Bureau of Economic Research.

In terms of the trend in hospitals purchasing physician practices, the article puts it this way -

Doctors are the hospital’s sales force, although they don’t like to think of it that way. Without doctors there are no admissions and no revenue to pay hospitals’ huge fixed expenses.

So hospitals have long been interested in owning physician practices, including a spurt of acquisitions in the 1990s in which many lost money and a renewed boom in the last decade as the Affordable Care Act promised to squeeze costs.

We thought the increased admissions was interesting from a patient access perspective.  From a public policy perspective, consider this -

“If these results are valid, then there are large implications,” said Martin Gaynor, a health economist at Carnegie Mellon University who was not involved in the study. “Hospital acquisitions of physician practices could disadvantage rival hospitals and harm competition.”

It is important to note that the data used in the Stanford study is pre-Affordable Care Act, so new data based on a new healthcare regime may yield different results different interpretations -

The health law encourages doctor-hospital collaboration in groups called accountable care organizations that put participants on the hook for financial and quality results.

ACOs are supposed to reduce incentives for hospitals to gobble market share, raise prices and slight quality — the kind highlighted by the Stanford paper.