The FCC moved last week to exempt healthcare messaging from the Telephone Consumer Protection Act (TCPA) prohibition against calling and texting consumers' mobile devices without prior consent—opening the healthcare industry up to a mixture of opportunity and risk, experts suggest.
The FCC stipulates that the messages must be regulated through HIPAA, but there is some ambiguity as to what constitutes a "healthcare" message, so providers will need to tread carefully in this new territory.
The exemption comes as the result of a petition from the American Association of Healthcare Administrative Management (AAHAM), according to the National Law Review, and it's highly favorable to the industry, says Christine Reilly, co-chair of Manatt, Phelps & Phillips' TCPA Compliance and Class Action Defense group.
Reilly notes this is the second time the FCC has addressed healthcare communications in recent years. The first change came in October 2013 when it made an exemption for residential calls. This latest exemption for mobile phone calls/texts falls under the same concept. "It aims to make sure TCPA does not create liability where HIPAA does not," Reilly says.
What's new
Under the new rules, prior express consent can be passed from one entity to another. For example, if a provider gets a mobile number from a patient, other entities can now make relevant calls on that provider's behalf.
"That's going to be pretty tremendous for healthcare," Reilly tells Healthcare Dive. She adds that the FCC also made some limited exceptions for getting consent through a third party if someone is medically incapacitated.
"Aside from those two things, the really big issue—and the most exciting one—is now, there is a specific exemption for exigent healthcare calls," Reilly says. "TCPA has very few exceptions, so this a big win for the industry."
There is a specific list of what the FCC considers to be exigent, and it needs to have some kind of healthcare treatment purpose. There are also specific requirements that providers need to fulfill in order to qualify for that exemption, Reilly says. The gist of those requirements:
- The call must be free to the mobile number receiving it.
- The provider must identify their name and contact information.
- The call must fulfill a healthcare purpose.
- Not only must the call be covered under HIPAA and fall under the definition of healthcare, but it has to be closely related to the purpose for which the number was provided in the first place.
- The call must be a message of a minute or less, or be within 160 characters for text messages.
- There is a limit on the number of calls and texts allowed to each number, amounting to one per day, up to a maximum of three total per week.
- The provider must provide an opt-out and honor it immediately.
Will providers take advantage?
The FCC is calling out a difference between calls with a healthcare treatment purpose (now exempted) and healthcare related calls (not exempted.)
"One hopes you understand exactly what they mean, but at the end of the day, one of the big issues is always, is it really a healthcare message or is it really something that's marketing," Reilly says. "It's very clear the FCC does not want to allow messages to come under this exemption that are just a way to get around the telemarketing or marketing rules."
At the same time, however, a lot of clients have messages that can be looked at as both marketing and healthcare, and drawing the line can be difficult, Reilly notes. For example, what if a provider wants to suggest a new pharmacy to a patient, or suggest a different type of medical treatment that might also be helpful to that patient?
"Is that going to be considered within the scope of that original consent? I think that's going to be a tough issue," Reilly says.
Each decision will come down to an analysis of the true purpose and scope of those messages.
"There will be litigation, undoubtedly, over those types of issues," Reilly said.