The Federal Communications Commission (FCC) in July issued a Declaratory Ruling and Order responding to 21 separate requests for clarification of its rules implementing the Telephone Consumer Protection Act (TCPA). Among its rulings, the FCC granted in part the request of the American Association of Healthcare Administrative Management (the AAHAM) to exempt certain healthcare-related calls and text messages from the TCPA’s “prior express consent” requirements and, for certain other calls, to find that prior express consent is implied. The FCC also addressed consent provided by a third party on behalf of an incapacitated patient.
The TCPA generally requires prior express consent for autodialed or prerecorded calls to cell phones, even where no telemarketing is involved
Under 2012 revisions to the TCPA rules, for autodialed or prerecorded calls (“robocalls”) to a cell phone number, including a call that delivers a “healthcare” message made by, or on behalf of, a “covered entity” or its “business associate,” as those terms are defined by HIPAA, a patient generally must give prior express consent. If the “robocall” introduces an advertisement or constitutes telemarketing, prior express written consent is required for calls to cell phone numbers, and prior express consent is required for calls to residential lines. Patients claiming violation of the TPCA rules can receive as much as $1,500 per call in damages, which has made such calls a frequent —and costly—target of class action litigation.
Patient provision of a telephone number implies prior express consent to receive healthcare calls subject to HIPAA
The AAHAM had petitioned the FCC to confirm that the provision of a telephone number to a healthcare provider constitutes the “prior express consent” needed under the TCPA rules. AAHAM also sought confirmation that such consent would extend, for healthcare calls subject to HIPAA, to calls by or on behalf of the “covered entity” as well as its “business associates.”
The FCC granted the AAHAM’s request for clarification, but subject to strict limitations. The FCC agreed “that the provision of a phone number to a healthcare provider constitutes prior express consent,” but only for “healthcare calls subject to HIPAA by a HIPAA-covered entity and business associates acting on its behalf, as defined by HIPAA, if the covered entities and business associates are making calls within the scope of the consent given, and absent instructions to the contrary.” Therefore, under this ruling, patient consent cannot be implied:
- For calls that are not subject to HIPAA
- For calls that are not among the types of calls the patient would expect to receive based on the context in which the phone number was provided
- If the patient has told the provider to use the number only for specific types of calls, or to stop using the number
No prior express consent required for certain exigent calls that have a healthcare treatment purpose
The FCC also considered, and granted on a limited basis, the AAHAM’s request that certain exigent, non-telemarketing, healthcare calls to cell phones be exempted from the TCPA’s “prior express consent” requirement, provided the healthcare provider can be certain that the call or text will not be charged to the called party. The FCC specifically limited its exemption to “calls subject to HIPAA” and excluded telemarketing calls. The FCC rejected the AAHAM’s request to include within the scope of the exemption calls regarding billing and account communications, payment notifications and Social Security disability eligibility. Accordingly, only the following types of calls subject to HIPAA can be made via “robocall” to a cell phone without the patient’s prior express consent:
- 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
- Home healthcare instructions
The FCC also enumerated the following conditions on each voice call or text message made by or on behalf of a healthcare provider under this exemption:
- Voice calls and text messages must be sent, if at all, only to the wireless telephone number provided by the patient
- Voice calls and text messages must state the name and contact information of the healthcare provider (for voice calls, these disclosures would need to be made at the beginning of the call)
- Voice calls and text messages must not include any telemarketing, solicitation or advertising; may not include accounting, billing, debt-collection or other financial content; and must comply with HIPAA privacy rules
- Voice calls and text messages must be concise, generally one minute or less in length for voice calls and 160 characters or less in length for text messages
- A healthcare provider may initiate only one message (whether by voice call or text message) per day, up to a maximum of three voice calls or text messages combined per week from a specific healthcare provider
- A healthcare provider must offer recipients within each message an easy means to opt out of future such messages; voice calls that could be answered by a live person must include an automated, interactive voice- and/or key press-activated opt-out mechanism that enables the call recipient to make an opt-out request prior to terminating the call; voice calls that could be answered by an answering machine or voice mail service must include a toll-free number that the consumer can call to opt out of future healthcare calls; text messages must inform recipients of the choice to opt out by replying “STOP,” which will be the exclusive means by which consumers may opt out of such messages
- A healthcare provider must honor the opt-out requests immediately
Additional Information
Compliance with the TCPA remains a complex topic which cannot be comprehensively addressed in this summary format, and this Client Alert is not intended, nor should it be used, as legal advice. If you would like additional information, please contact your Kutak Rock attorney or the author of this alert.