Text Messages under the Telephone Consumer Protection Act White Paper

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1 INTRODUCTION The use of text messages in communicating with a health plan participant or patient may implicate the federal law known as the Telephone Consumer Protection Act (TCPA). The Federal Communications Commission (FCC) issued a recent Declaratory Ruling and Order (DRO) that clarifies the rules relating to text messages, and delineated exemptions which apply to text messages from covered entities (as defined in the Health insurance Portability and Accountability Act) and those for health treatment. The purpose of this is to provide customers of Voxiva, Inc. (Voxiva) with general information concerning key provisions of the recent DRO by the FCC, but should not be considered or construed to be legal advice or opinion. SUMMARY A customer which is a covered entity may send information to health plan participants or patients via text message, without the written consent of the individual, in certain circumstances. Assuming that the individual has provided the customer or its business associate with his/her phone number, and the individual has not withdrawn his/her consent, and his/her phone number has not been recycled, text messages containing health care content may be sent to that phone number, provided that it is done in compliance with the Health Insurance Portability and Accountability Act. In short, customers which are covered entities may communicate with health plan participants or patients via text message to the same extent and in the same manner that they are able to contact individuals via prerecorded outbound telephone calls. For example, a customer may send a text message to an individual reminding him/her that an annual physical exam is both recommended and paid for under his/her insurance policy. Permissible texts also include health assessments and highlighting a gap in care. REGULATIONS As a provider of information services delivered via cell phone to individuals, Voxiva and its customers must adhere to the TCPA. The FCC published rules clarifying the TCPA in October 2012 (TPCA 2012 Order). On July 10, 2015, the FCC released a Declaratory Ruling and Order (DRO) that clarified the rules that industry must abide by with respect to automated phone calls and text messages. The TCPA, TCPA 2012 Order and the DRO shall be referred to collectively as the TCPA Rules in this, which examines the TCPA Rules and their impact on calls and text messages in the U.S. health care industry. As a provider of health information services that includes Protected Health Information (PHI), Voxiva and its customers who are covered entities (CE) such as health plans and health care providers, must comply with the Health Insurance Portability and Accountability Act of (HIPAA). In January 2013, 1 HIPAA; Pub.L , 110 Stat. 1936, enacted August 21, Page 1 of 7 Issue 1.1

2 HIPAA was updated via the Final Omnibus Rule that included updates to the security and privacy standards and the expansion of requirements to include business associates to uphold these sections of the law. 2 The federal law and regulations governing the use and disclosure of PHI shall be referred to collectively as HIPAA. BACKGROUND The TCPA is a federal law which makes it unlawful for any person within the United States to: (i) make telemarketing calls (text or voice) using an artificial or prerecorded voice to residential telephones without prior express consent of the called party; and (ii) make any non emergency call (text or voice) using an automatic telephone dialing system ("autodialer") or an artificial or prerecorded voice to a wireless telephone number without prior express consent of the called party. 3 For telemarketing calls, the consent must be in writing, and for all other calls (including those for debt collection purposes) the consent may be oral or written. 4 For purposes of understanding the TCPA, it is important to know what constitutes autodialing (formally known as an automatic telephone dialing system or ATDS). Autodialing is defined as equipment which has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator, and dial such numbers. 5 In a 2003 interpretive ruling, the FCC indicated that "predictive dialers," which are telephone software systems that have the capacity to dial one or more numbers simultaneously or have the ability to queue telephone numbers from a database (the hallmark of which is dead air when answering a call), are considered autodialing. Courts in certain jurisdictions have expanded autodialing to include calls initiated by smart phones (which have the capacity to queue telephone numbers), as well as telephone software where the person initiating the call manually clicks on a number on the screen to dial. 6 For telemarketing calls, the FCC requires that prior consent be obtained through a written agreement bearing the signature of the person called (e signatures are permitted), which, in a clear and conspicuous manner, discloses that by executing the agreement, the person authorizes the caller to conduct telemarketing calls using autodialing or an artificial/prerecorded voice and that the person is not required to sign the agreement as a condition of purchasing any services. 7 For non telemarketing calls, the FCC does not require any specific method by which a caller must obtain such prior express consent, stating that it "leaves it to the caller to determine... whether to rely upon oral or written consent in complying with the statutory consent requirement." 8 Thus, while the telemarketing call requirements would not apply to the express consent that a customer must obtain from its patients 2 HIPAA Omnibus Rule. 45 CFR Parts 160 and 164. (78 Fed. Reg. 5566) 3 47 U.S.C. 227(b)(1); 47 C.F.R (a) 4 47 C.F.R (a) 5 47 U.S.C. 227(a)(1) 6 See e.g., Satterfield v. Simon & Schuster, Inc., 569 F.2d 946 (9th Cir. 2009) TCPA Order, 27 FCC Rec. 8 Id Page 2 of 7 Issue 1.1

3 (assuming that customer and its business associates are not engaging in telemarketing), they do offer guidance as to the appropriate measures to document consent. It is important to note that the FCC has recognized exemptions where prior express consent of the called party is implied when he/she gives the caller his/her phone number, and also limited circumstances in which prior consent is not necessary. Certain calls, such as those by or on behalf of a tax exempt nonprofit organization, or calls subject to HIPAA, may be made when the called party provides his/her phone number, under certain circumstances. 9 As discussed in greater detail below, the DRO clarifies the latter exception relating to HIPAA. The FCC has determined that the provision of a telephone number by an individual to a HIPAA covered entity (e.g., healthcare provider, health plan, healthcare clearinghouse) constitutes prior express consent for non telemarketing, healthcare calls to that telephone number by or on behalf of the covered entity. Separately, the FCC ruled that even the TCPA s prior express consent requirement does not apply to certain non telemarketing calls for health treatment purposes (e.g., appointment reminders, lab results, prescription notifications, etc.) that are not charged to the called party. ANALYSIS 1. Text Messages Carry the Same Definition As Voice Calls The TCPA Rules specify that: Text messaging is a form of communication used primarily between telephones and is therefore consistent with the definition of a call 10 Text messages are calls subject to the TCPA. 11 The DRO confirms that in general, the same rules apply to text messages as apply to voice calls. Therefore it is reasonable to conclude that if an automated voice call is permitted under both the TCPA Rules and HIPAA, then the same message can be delivered via text messages. 2. Provision of A Phone Number to a Covered Entity Constitutes Prior Express Consent The 1992 TCPA Order, states: In view of the privacy protections afforded under HIPAA, we exempt from our consent, identification, time of day, opt out, and abandoned call requirements all prerecorded health care related calls to residential lines that are subject to HIPAA C.F.R (a)(3) TCPA Order, 18 FCC Rcd at 14115, para. 165; see also 47 U.S.C 227(b)(1)(A)(iii); 47 C.F.R (a)(1)(iii); Satterfield (noting that text messaging is a form of communication used primarily between telephones and is therefore consistent with the definition of a call ) 11 Declaratory Ruling and Order. Page 57. Section TCPA Order, Para Page 3 of 7 Issue 1.1

4 In its TCPA 2012 Order, the FCC updated the 1992 Order by creating both a general requirement for written consent and a healthcare exemption to the written consent standard requiring only prior express consent for calls that contain a commercial healthcare message made by, or on behalf of, a CE or its Business Associate (BA) as defined in the HIPAA Privacy Rules. 13 HIPAA does not define a commercial healthcare message and that has led to some ambiguity about the type of message that could be sent. Fortunately, this rule was clarified in the 2015 DRO providing guidance as to the type of message that could be delivered by confirming: provision of a phone number to a healthcare provider constitutes prior express consent 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. 14 By within the scope of consent given, and absent instructions to the contrary, we mean that the call must be closely related to the purpose for which the telephone number was originally provided. For example, if a patient provided his phone number upon admission to a hospital for scheduled surgery, then calls pertaining to that surgery or follow up procedures for that surgery would be closely related to the purpose for which the telephone number was originally provided. 15 The TCPA 2012 Order and the DRO both confirm that where an individual has provided his or her phone number to a CE or BA acting on behalf of the CE, prior express consent to call or text that individual is deemed to have been granted to the CE or BA. In most cases, the individual provides their phone number to a state Medicaid agency in connection with their insurance application. Therefore, it is reasonable to assume that a Medicaid Managed Care Organization (MCO) that is acting on behalf of the state Medicaid agency (a CE to CE or CE to BA relationship) has been provided express consent to use the phone number provided by the individual. The DRO goes on to address ambiguity in the definition of the type of healthcare message that may be sent stating that the message should be consistent with the reason that phone number was provided. So, if the call or text message content relates to the health insurance services that the individual applied for and provided their phone number for then it should be reasonable to assume that it is consistent with the reason that the phone number was provided. For example, if the call or text message informs the individual about a preventative health exam that is covered under the insurance policy, then it is reasonable to conclude that this within the scope of consent given. Examples of the types of messages that one could reasonably infer could be sent to individuals that have provided their phone number to a CE include: C.F.R ; 47 C.F.R (a)(2) and (a)(3)(v) (2012). 14 Declaratory Ruling and Order. Page 69. Section Declaratory Ruling and Order. Page 69. Footnote Page 4 of 7 Issue 1.1

5 Exam and appointment reminders. Notification that insurance coverage is about to lapse. Health and services information provided by the Medicaid MCO or state Medicaid agency. It is these arguments that have permitted CEs to send messages to consumers via autodialing in the past. The recent confirmation that text messages are calls subject to the TCPA and the inclusion of examples of healthcare messages should provide CEs confidence that these messages can now be sent via text message. 3. The Caller Can Not Send Any More Than One Message To A Reallocated Phone Number The DRO introduces a new rule imposing liability on the caller if the caller continues to call or send text messages to a phone number that has been reassigned to another subscriber even when the original subscriber met the express consent rules: Callers are liable for robocalls to reassigned wireless numbers when the current subscriber to or customary user of the number has not consented, subject to a limited, one call exception for cases in which the caller does not have actual or constructive knowledge of the reassignment The TCPA requires the consent not of the intended recipient of a call, but of the current subscriber. 16 We conclude that giving callers an opportunity to avoid liability for the first call to a wireless number following reassignment strikes the appropriate balance. This new rule imposes a requirement on callers to validate that the number being called (or texted) has not been reassigned. Voxiva has taken steps to address this concern with respect to the text messages it sends: For individuals that are enrolled in a regular campaign of messages (at least one message per month), Voxiva will automatically unsubscribe the individual from the campaign when a carrier receipt is received indicating that phone has been deactivated. Since carriers generally wait 3 6 months as a minimum before reassigning a number, this will allow Voxiva to meet the one call rule when a number is reassigned. For individuals that are not enrolled in a regular campaign and instead receive an ad hoc message, Voxiva can verify the name and phone number on the call list matches the mobile operator subscriber s name and phone number. 4. Consumers may revoke consent 16 Declaratory Ruling and Order. Page 39. Section Page 5 of 7 Issue 1.1

6 The TCPA Rules make it clear that when a consumer asks that the CE stop sending messages through automated means then that request must be honored immediately: Consumers may revoke consent at any time and through any reasonable means ; 17 Where a consumer receives text messages that are sent on behalf of the CE and the consumer revokes consent, the CE and its vendors must take steps to place the user on a Do Not Call / Text list until the consumer provides consent again. It is reasonable to assume that a consumer may choose to revoke consent from calls but may wish to maintain consent for text messages (or vice versa). Therefore, consent should be managed on a per communication channel basis. 5. Certain Non Telemarketing Calls and Text Messages for Health Treatment Purposes Are Exempt From The Consent Requirements The DRO introduces further potential flexibility by exempting certain types of message content from even the prior express consent rules. The TCPA Rules state: Among other actions we recognize the legitimate interests of callers by exempting certain free, pro consumer healthcare related messages from the consumer consent requirement, 18, 19 subject to strict conditions and limitations to protect consumer privacy. We grant the exemption, with the conditions below, but restrict it to calls for which there is exigency and that have a healthcare treatment purpose, specifically: appointment and exam confirmations and reminders, wellness checkups, hospital pre registration instructions, preoperative instructions, lab results, post discharge follow up intended to prevent readmission, prescription notifications, and home healthcare instructions. 20 We emphasize that the exemption is limited to messages with the purposes discussed in para. 146 above. The exemption applies to robocalls and texts to wireless numbers only if they are not charged to the recipient, including not being counted against any plan limits that apply to the recipient (e.g., number of voice minutes, number of text messages) and the healthcare providers complies with the enumerated conditions we adopt today. 21 We adopt the following conditions for each exempted call (voice call or text message) made by or on behalf of a healthcare provider: 1) voice calls and text messages must be sent, if at all, only to the wireless telephone number provided by the patient; 17 Declaratory Ruling and Order. Page 5. Para Declaratory Ruling and Order. Page 5. Para Declaratory Ruling and Order. Page 63. Section Declaratory Ruling and Order. Page 71. Section Declaratory Ruling and Order. Page 71. Section Page 6 of 7 Issue 1.1

7 2) 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); 3) voice calls and text messages are strictly limited to the purposes permitted in para. 146 above; 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; 4) 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; 5) 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; 6) a healthcare provider must offer recipients within each message an easy means to opt out of future such messages, 7) a healthcare provider must honor the opt out requests immediately. 22 These new rules provide CEs with potential additional flexibility where the phone number has not been provided by the individual to the CE or where the phone number was provided for a reason other than the reason the CE wishes to communicate with the individual. However, the FCC also appears to have created a circular argument. Specifically, the first condition of the DRO requires the call or text message to be sent only to the wireless telephone number provided by the patient. However, if the phone number has been provided by the patient to the CE then prior express consent would have been deemed to have been granted under Section 141 of the Declaratory Ruling. Until the FCC clarifies this matter, a prudent approach for a CE or a BA would be to send messages only to those consumers that have provided their phone number to the CE or BA. DISCLAIMER Voxiva issues this as of the date indicated below, and assumes no liability for any errors contained herein and no obligation to update or supplement this document to reflect any change in the law which may hereafter occur. This is intended for Voxiva s customers only and should not be shared with or relied upon by any other party. You are advised to seek the advice of legal counsel immediately regarding compliance with the FCC s DRO, the TCPA, and any other laws that may be applicable to you and your business. 22 Declaratory Ruling and Order. Page 71. Section Page 7 of 7 Issue 1.1

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