In July 2015, the FCC issued its decision providing clarification on issues regarding the Telephone Consumer Protection Act of 1991 (TCPA). Healthcare companies are particularly vulnerable to lawsuits under the TCPA due to the large amount of necessary communications with patients combined with new, more stringent rules about contacting patients on their residential and mobile phones.
Healthcare companies may now be eligible for the exigent healthcare exemption under the TCPA for some autodialed calls and text messages “for which there is exigency and that have a healthcare treatment purpose.” This means providers can more easily communicate important information to patients, however, significant restrictions remain in place.
In October 2013, new TCPA rules were issued, making prior express consent and prior express written consent mandatory for most commercial calls. Following the October 2013 rule-changes, 21 petitions were filed with the FCC asking for clarification on a myriad of issues, including the definition of an auto-dialer, circumstances relating to reassigned mobile numbers, what constitutes prior written consent and prior express consent, and how text messages and internet-to-phone technology fit into the mix. The July 2015 decision responded to all 21 of these petitions.
Generally, the TCPA restricts calls using an artificial or pre-recorded voice and/or that are initiated using an automatic telephone dialing system ("ATDS” or “Autodialer"). Whether calling a customer or patient's home or mobile number, the caller must also follow the Do-Not-Call requirements.
If your company uses an ATDS, you likely need to revamp your policies and procedures for reaching your customers/patients. The 138-page decision puts the onus on companies and call centers to prove they have the necessary consent, to know after one call that the number they are calling (even with prior express consent) has been reassigned, and to be able to provide concrete proof rebutting a customer’s claim that he or she revoked consent. As dismal as the ruling is, there are a few bright spots – one of which provides and exemption for healthcare calls to mobile numbers.
General Rules
It is unlawful to make a non-telemarketing call (including SMS text messages) using an ATDS or an artificial or pre-recorded voice to a wireless number unless the caller has obtained the prior express consent of the called party or the call is made for emergency purposes.
It is unlawful to make a telemarketing call (including SMS text messages) using an ATDS or an artificial or pre-recorded voice to a wireless number unless the call is made with prior express written consent of the called party.
Consent for telemarketing calls need not be in writing for non-profits or HIPAA healthcare messages from qualified entities. There are strict FCC guidelines on what qualifies as prior express written consent.
To qualify for the exigent exemption for healthcare calls, auto-dialed or pre-recorded message calls to mobile phones must meet the general requirements above and also have a healthcare treatment purpose, specifically:
- appointment and exam confirmations and reminders
- hospital preregistration instructions
- lab results
- post discharge follow-up intended to prevent readmission
- home health care instructions
- wellness checkups
- pre-operative instructions
- prescription notifications
Calls regarding account communications, payment notifications, or social security disability eligibility do not qualify for the exemption. Of course, this exemption comes with strict conditions.
Additionally, the calls:
- must be free to end user (including counting towards plan limits)
- can be made only to mobile numbers provided by the patient or a third party where a patient is medically incapacitated
- must provide the caller’s name and contact information at the beginning of a voice call
- cannot contain any telemarketing, solicitation, or advertising or accounting, billing, debt collection or other financial content
- must be short (generally one minute or less (voice) or 160 characters or less (text)
- must provide an easy means to opt out
- must immediately honor opt out requests
- must not exceed one message per day/three per week
Other important things to know about the exemption:
- Insurance coverage calls do not qualify for the exemption
- Strict liability on reassigned numbers is minimized
- The calls must be within the scope of the consent granted
Where the exemption is not attainable, it is critical to have correct policies and procedures, training and audit practice, and contract clauses that will limit liability.
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