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.