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TCPA Omnibus Ruling and Impacts - GetixHealth
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TCPA Omnibus Ruling and Impacts

About This Project

Summary:  The Telephone Consumer Protection Act is a consumer protection that defines when calls require consumer consent.  This addresses calls referred to as “robocalls”, “covered calls and texts” and “voice calls and texts”.  A ruling was issued on July 10, 2015, that addresses the evolution of these communications through modern technologies.  This ruling reaffirmed consumer protections, exemplified use of modern communications, addressed varying situations and clarified prohibitions.  This applies to communications originating from technologies including mobile devices and apps, land lines, cloud based programs and internet.  It also captures the medium of communication including live calls, SMS and texts, and alternative messaging from the described technologies.

 

From a healthcare perspective, this ruling can affect workflow and effectiveness of autodial or follow up activities related to eligibility, self-pay inquiry, and bad debt collections.

 

Effective date:  These requirements were effective immediately with the ruling on July 10, 2015.

Rule Outline:  Key elements of the ruling are as follows:

 

All phones

  • Consumers may revoke consent at any time through reasonable means.
  • All communications tied to a phone number are included in TCPA regardless of communication medium or originating technology.
  • Reassigned numbers for individuals who are assigned a previously used number may not be subject to repeated auto dial, pre-recorded or artificial voice calls.
    • FCC states one additional call to a reassigned number, over an unlimited period of time, where the caller does not have actual knowledge of the reassignment and can show that he had consent to make the call to the previous subscriber or customary user of the number.[1]
    • Calls must stop after one call.

 

Wireless technology

  • Auto-dial or pre-recorded non-emergency calls require prior express consent for calling/messaging.
    • Provision of a phone number by a consumer during routine data collection does not imply consent.
    • Providing one’s phone number evidences prior express consent to be called at that number, absent instructions to the contrary[2]
    • Express consent may be written or verbal.

§  Prior express consent is described as follows:·  Where an individual knowingly releases a phone number, he or she has in effect given the invitation or permission to be called at the number which was given, absent instructions to the contrary. [3] ·  … “A person gives his “prior express consent” when he gives his creditor his cellphone number in connection with a debt he owes. In line with the agency in charge of enforcing the Act, we conclude that this constitutes “prior express consent” to be called on that number about the debt.”[4]§  Consent must be obtained at the time of the transaction which incurred the debt [5] consent cannot be presumed.[6] §  Consent received for a non-wireless number may be transferred should that number be converted or “ported” to a wireless number.  It is the consenting party’s responsibility to revoke consent if desired.[7]§  Verbal consent is best captured by recording the call.

  • Recipient of call/message is the “called party”.
    • This may not be the same individual as the intended recipient or patient.
    • This may be the regular user of the phone or the subscriber.
    • FCC has outlined the following statements:
      • “We find that the “called party” is the subscriber, e., the consumer assigned the telephone number dialed and billed for the call, or the non-subscriber customary user of a telephone number included in a family or business calling plan.” [8]
      • “Both such individuals can give prior express consent to be called at that number.”[9]
      • “We consider the caller’s reasonableness in relying on consent. The record indicates that it is reasonable for callers to rely on customary users, such as a close relative on a subscriber’s family calling plan or an employee on a company’s business calling plan, because the subscriber will generally have allowed such customary users to control the calling to and from a particular number under the plan, including granting consent to receive robocalls.[10]
    • Consumers that provide a phone number as part of a credit application (ie CareCredit or similar programs) have given express consent as part the content of the application.[11]
    • Calls for healthcare promotion, “on demand” calls, technology set up, protective/breach/theft and HIPAA calls are exempt.[12]
      • HIPAA related calls include but are not limited to appointment reminders, scheduling requests, prescription refills, and patient instructions.[13]
      • Healthcare billing and debt collection was called out as “non-HIPAA” under TCPA
    • Ownership of and liability for meeting TCPA resides with the entity who originated the call/message.[14]
      • Liability does not apply to the technology or programming support company used to transmit the call/message.

 

Other Notes

 

Initial Considerations:

  • How are healthcare providers confirming express consent of patient?
  • Is verbal consent being recorded in the same manner as written consent?
  • Are healthcare providers confirming express consent with each encounter or patient episode of care?
  • Will healthcare providers seek alternative sources (i.e. spouse, parent, etc.) for express consent when a patient is incapacitated or not capable of providing express consent?
  • Are healthcare providers specifically flagging or noting that the recorded phone number has met criteria “express consent” when files are coming from providers to GetixHealth?
  • As a third party collector, GetixHealth must receive data confirming express consent with every account transaction, encounter, or episode of care.
    • How is this being issued to GetixHealth by healthcare providers? Is that adequate?  Do we have to obtain consent on our own?
    • Are healthcare providers excluding accounts, encounters or episodes of care where express consent has not been obtained from the patient? Does express consent follow the patient or the account?
    • Is expressed consent being provided for every account transaction, encounter or episode of care so GetixHealth may directly connect the confirmation?
  • Do providers recognize that incomplete accounts, encounters or episode of this care cannot be handled through auto-dial or pre-recorded call/messaging technologies and may require manual follow up? What does this mean?
  • How will evaluation of data files from healthcare providers change to ensure that GetixHealth does not issue calls in the absence of express written consent?
  • Consider data service that identifies cell phone numbers.

 

References:

FCC Ruling Reference – https://www.fcc.gov/document/fcc-strengthens-consumer-protections-against-unwanted-calls-and-texts

[1] Para 84. http://transition.fcc.gov/Daily_Releases/Daily_Business/2015/db0729/FCC-15-72A1.pdf

[2] Para 77. http://transition.fcc.gov/Daily_Releases/Daily_Business/2015/db0729/FCC-15-72A1.pdf

[3] 1992 FCC TCPA order. https://transition.fcc.gov/Bureaus/Common_Carrier/Orders/1994/fcc92443.txt

[4] US Court of Appeals, Sixth Circuit. No 14-4168. http://caselaw.findlaw.com/us-6th-circuit/1711496.html

[5] Jan 2008 Declaratory Ruling, Para 10 – https://apps.fcc.gov/edocs_public/attachmatch/FCC-07-232A1.pdf

[6] July 2015 Ruling, Para 52 FCC Ruling Reference – https://www.fcc.gov/document/fcc-strengthens-consumer-protections-against-unwanted-calls-and-texts

[7] July 2015 Ruling, Para 54 FCC Ruling Reference – https://www.fcc.gov/document/fcc-strengthens-consumer-protections-against-unwanted-calls-and-texts

[8] July 2015 Ruling, Para 73 FCC Ruling Reference – https://www.fcc.gov/document/fcc-strengthens-consumer-protections-against-unwanted-calls-and-texts

[9]July 2015 Ruling, Para 73 FCC Ruling Reference – https://www.fcc.gov/document/fcc-strengthens-consumer-protections-against-unwanted-calls-and-texts

[10] July 2015 Ruling, Para 75 FCC Ruling Reference – https://www.fcc.gov/document/fcc-strengthens-consumer-protections-against-unwanted-calls-and-texts

[11] July 2015 Ruling, Para 141 FCC Ruling Reference – https://www.fcc.gov/document/fcc-strengthens-consumer-protections-against-unwanted-calls-and-texts

[12] July 2015 Ruling, Para 73 FCC Ruling Reference – https://www.fcc.gov/document/fcc-strengthens-consumer-protections-against-unwanted-calls-and-texts

[12] July 2015 Ruling, Para 129 FCC Ruling Reference- https://www.fcc.gov/document/fcc-strengthens-consumer-protections-against-unwanted-calls-and-texts

[13] July 2015 Ruling, Para 146 FCC Ruling Reference – https://www.fcc.gov/document/fcc-strengthens-consumer-protections-against-unwanted-calls-and-texts

[14] July 2015 Ruling, Para 30-37. http://transition.fcc.gov/Daily_Releases/Daily_Business/2015/db0729/FCC-15-72A1.pdf