Healthcare Groups Back HHS TCPA Request on Health Coverage Robocalls

Some individuals "may risk losing eligibility for Medicaid or other programs as a result of funding or other program changes that will sunset at the end of the declared COVID-19 public health emergency," said UnitedHealth Group. The calls and texts are "critical and time-sensitive to public health purposes because they could prevent the loss of health care coverage for many millions of Americans," said Kaiser Permanente. Many Medicaid beneficiaries' mailing addresses are out-of-date and could lead to gaps in coverage, said the National Association of Medicaid Directors. The proposed calls and text would be "solely for the purpose of encouraging Medicaid members to update their contact information, provide information needed to renew Medicaid coverage, and consider other coverage options," the group said.

Communication with patients through text messages "will be especially important in ensuring patients enrolled in health coverage can continue to receive these services once the [public health emergency] ends," said the Healthcare Leadership Council. Let agencies use short code texting to reach Medicaid-eligible patients, said ACT|The App Association’s Connected Health Initiative: It's "necessary to reduce administrative burdens and free up Medicaid resources, permitting resource redeployment to better serve those vulnerable populations." It "may become a best practice for reaching Medicaid, CHIP, BHP, and Marketplace enrollees, and both state and federal agencies may choose to incorporate them into future renewal work," said health insurance provider association AHIP.

About 86 million Americans "will soon be subject to eligibility renewals," and cellphones are "the most effective way to reach these patients," said the Tennessee Primary Care Association. Nearly 16 million could lose coverage entirely once the public health emergency ends, said Anthem: Affirming HHS' understanding of TCPA rules will "provide necessary clarity to all stakeholders working to support continuous coverage for individuals impacted by the end of the [public health emergency] and Medicaid redetermination process." Allowing states, health plans and contractors to make the calls HHS identified is a "cost-effective and timely way to reach enrollees who can’t be found by mail," said a coalition of healthcare organizations, including the American Academy of Pediatrics, Children’s Hospital Association and March of Dimes.

FCC guidance on whether state agencies are considered "persons" under TCPA "does not go far enough" for states that use outside organizations to reach enrollees, said the Connecticut Department of Social Services. It asked that administrative services organizations (ASO) be treated as managed care organizations (MCO) because the state contracts ASOs to administer Medicaid and CHIP. The Indiana Primary Health Care Association agreed, saying contractors shouldn't be treated as "persons" when making calls about eligibility and enrollment on behalf of an agency.

The California Department of Health Care Services said it plans to have MCOs and other contractors do a three-phase text and calling campaign to Medicaid beneficiaries during the renewal process, but MCOs said they're "hesitant to do outreach via phone calls and text messages because they are concerned about possible TCPA violations." Nevada’s Division of Health Care Financing and Policy asked the FCC to issue an opinion confirming that state Medicaid agencies, local governments, MCOs and contractors aren't violating TCPA rules when sending automated, prerecorded calls or texts: "There are few types of communications that are as much in the public interest as what we propose."

HHS' interpretations in its request are "consistent with current law" and demonstrate "how even the threat of TCPA liability could discourage sending of critical healthcare messages," said AI texting platform Drips. The FCC should clarify that state and federal governments are the "makers" of texts under HHS' request, it said. A coalition of consumer advocacy organizations urged the FCC and HHS to "ensure that any policy regarding these calls does not inadvertently facilitate any of the more of the tens of millions of scam calls selling fake health insurance now made every month." The agencies should "expect that scammers and telemarketers will spoof these calls" and act "to ensure that telephone service providers block these spoofed calls from reaching subscribers," said the groups, including the National Consumer Law Center, Electronic Privacy Information Center, Public Knowledge and U.S. Public Interest Research Group.