Last week, a group of healthcare companies sent a letter to the Federal Communications Commission ("FCC") seeking clarification regarding how healthcare communications are treated under the Telephone Consumer Protection Act ("TCPA"). Specifically, the letter urged the FCC to rule on a joint petition filed on July 28, 2016, by the American Association of Healthcare Administrative Management and others (the "Joint Petition") concerning TCPA healthcare- related telecommunications transmissions.
What TCPA healthcare changes are sought?
The Joint Petition was filed to address TCPA healthcare issues contained in the FCC's 2015 TCPA Omnibus Declaratory Ruling and Order ("2015 Declaratory Ruling"), which was reversed in part by the D.C. Circuit Court of Appeals. The 2015 Declaratory Ruling provided that, subject to the Health Insurance Portability and Accountability Act of 1996 ("HIPPA"), the "provision of a phone number to a healthcare provider constitutes prior express consent for healthcare calls." However, the broad and undefined nature of the terms "healthcare provider" and "healthcare calls" was concerning for healthcare companies that sought to comply with TCPA healthcare communications. As such, the Joint Petition requested that the FCC clarify that: (1) healthcare providers include HIPPA "covered entities" and "business associates" (as defined by HIPPA); and (2) non-telemarketing healthcare calls include "treatment, payment, and operations" calls otherwise allowed under HIPPA.
The letter emphasized that the Joint Petition has strong bi-partisan support among members of Congress and referred to letters from Congressmen urging the FCC to stop dragging its feet. For example, in a joint letter from Senators Cory Booker (D-NJ) and Bill Nelson (D-FL) to FCC Chairman, Ajit Pai, they stress the importance of providing TCPA protection to "communications allowed under HIPPA in light of their unique value to consumers and their positive impact on Americans' health and well-being." In addition, Congressman Gus Bilirakis (R-FL) urged the FCC to provide an update "in an expedited manner" regarding the protection of "non-telemarketing calls allowed under HIPPA in light of their unique value to and acceptance by consumers."
Finally, the letter criticized the FCC for its over two-year delay in responding to the Joint Petition, claiming that the FCC has "chilled healthcare-related communications." The letter called for swift action by the FCC, which would support the FCC's longstanding policy of harmonizing TCPA regulations with those of HIPPA.
TCPA Healthcare Law's Current State
While it is unlikely that the FCC intended its 2015 Declaratory Ruling to be vague and ambiguous, healthcare companies are clearly concerned about contacting consumers and/or patients via telecommunications devices and about what information would be considered non-telemarketing for purposes of TCPA liability. Recent uncertainty surrounding the TCPA healthcare exception is one of many nuanced areas of TCPA statutory interpretation. In this rapidly-changing regulatory climate, it is as imperative as ever to have telemarketing practices and procedures examined by experienced counsel.
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