As we have previously reported, the Federal Communications Commission (“FCC”) issued a Declaratory Ruling and Order (“Order”) on July 10, 2015, clarifying several sections of the Telephone Consumer Protection Act (“TCPA”) and its implementing regulations.  One important clarification addressed a petition filed by the American Association of Healthcare Administrative Management (“AAHAM”) in October 2014 regarding “free, pro-consumer… healthcare-related messages” and under what circumstances such messages are exempt from the TCPA’s requirement for prior express consent.  This petition sought clarification on exemptions that are currently found in the TCPA for calls subject to the Health Information Portability and Accountability Act (HIPAA).

The HIPAA exemption in the TCPA regulations currently extends to advertising and marketing calls to cell phone and residential landline phone numbers.  The exemption provides that calls that deliver a healthcare message made by or on behalf of a “covered entity” or its “business associate,” as those terms are defined in HIPAA, do not require the prior express written consent of the called party.  What has been confusing is whether non-telemarketing calls (i.e., informational or transactional calls) that deliver healthcare messages require any type of consent at all.  The FCC’s response to the AAHAM petition helps to answer that question.

As a threshold issue, AAHAM asked the FCC to clarify that for calls subject to the HIPAA exemption, an individual’s voluntary provision of his or her cellular telephone number to a healthcare provider constitutes prior express consent to be called on that number.  The FCC has previously declared in other contexts that an individual’s provision of his or her cell phone number is effectively an invitation to be called on that number, as long as the calls or texts are limited in scope to the purpose the number was provided in the first place.  In its July 10, 2015 Ruling, the FCC extended that reasoning to calls and texts in the healthcare context, and agreed that healthcare providers can rely on the voluntary provision of a cell phone number as constituting prior express consent under the TCPA.  This exemption is tied specifically to HIPAA and its defined terms.  Thus, only HIPAA-covered entities and their business associates, as those terms are defined in HIPAA, can make healthcare calls subject to this exemption.  As with other types of calls, this HIPAA healthcare exemption is also limited in scope: the calls must be within the scope of the consent given, and not regarding some unrelated topic.

However, the FCC also clarified that certain non-telemarketing healthcare calls, for which the called party is not charged for the call, are exempt from the prior express consent requirement.  The FCC provided a list of acceptable calls that fall under this “free-to-end-user” call exemption: “appointment and exam confirmations and reminders; wellness check-ups; hospital pre-registration instructions; pre-operative instructions; lab results; post-discharge follow-up intended to prevent readmission; prescription notifications; and home healthcare instructions.”  The FCC agreed with AAHAM that these types of calls are welcomed by patients, as they provide valuable time-sensitive messages critical to an individual’s health.  Healthcare calls related to accounting, billing, debt collection or containing other financial content are not part of this exemption.

The FCC included some limitations on this exemption.  First, the calls must be free to the end user.  The calls also must be made by or on behalf of a healthcare provider and can be made or sent only to the cell phone number provided by the patient.  The calls or texts must state the name and contact information of the healthcare provider, and the calls or texts must be concise.  The FCC defines “concise” as one minute or less for voice calls, and 160 characters or less for text messages.  A healthcare provider may only make one exempt call or send one exempt text per day, with a weekly limit of three total calls or texts.  Further, the healthcare provider must offer the recipient an opportunity to opt out of receiving these types of calls or texts, and honor those opt outs immediately.  The exclusive method for opting out of text messages is for the recipient to reply with the word “STOP,” so recipients must be given that instruction.

This clarification from the FCC helps to better identify which healthcare-related calls do not require consent, and which still might require the prior express consent of the called party.  Entities wishing to use these newly created exemptions should carefully scrutinize all aspects of the call and their roles to ensure that all requirements are met.