You may have heard about the recent class action lawsuit filed against a southeastern health plan and Change Healthcare. The plan agreed to pay 1.6MM for making robocalls which the plaintiff claimed lacked consent and violated the Telephone Consumer Protection Act (TCPA). Specifically, the complaint alleges that Change Healthcare, on behalf of this plan, made illegal prerecorded or artificial voice calls to individuals who were not members or subscribers of the plan and who had not consented to receive such calls. Although the defendants denied any wrongdoing, they agreed to settle the case to avoid further litigation. This case has raised concerns about the legality of health plans reaching out to members via phone calls and text. Calls and text messages are critical for ensuring members maintain the benefits they are entitled to and avoid losing healthcare coverage. As long as health plans adhere to legal guidelines, these forms of communication play a vital role in helping members receive and retain essential benefits like Medicaid and other programs that may improve their lives.
What Do Regulators Say About Reminder Calls and Messages?
In April 2022, the Department of Health and Human Services (HHS) sought clarification from the Federal Communications Commission (FCC) regarding the use of automated text messages and phone calls to encourage individuals to renew their Medicaid eligibility. The FCC responded by confirming that managed care plans and their partners are permitted to send text messages about Medicaid renewal requirements. Notably, this communication is allowed without requiring a separate “opt-in” from the member.
The FCC guidance highlights that individuals applying for government healthcare programs generally expect and welcome calls and texts related to their benefits, particularly when those messages address requirements that could impact their coverage. Specifically, when an enrollee provides their phone number on an enrollment form, they are considered to have given prior express consent to be contacted at that number, as long as the communication is related to enrollment eligibility, enrollment, renewals, or the delivery of benefits.
The FCC further explains that since members apply for healthcare programs to receive benefits, they would likely view calls or texts aimed at preventing the termination of those benefits as being closely related to the reason they provided their phone number in the first place.
However, the FCC also cautions that entities relying on this implied consent should ensure they are acting under the direction and authorization of a government agency. Additionally, if a text or call is made to a number that has been reassigned to someone else, the sender may still be subject to liability under TCPA.
How Can We Ensure We Aren’t the Next Suit?
To ensure compliance, messages must adhere to the following requirements:
- Be health-related under HIPAA: Messages must be related to health care as defined by the Health Insurance Portability and Accountability Act (HIPAA). This means that the content should pertain to medical care or benefits and must protect the privacy and confidentiality of the recipient’s health information.
- Be sent to the provided telephone number: Communications should only be sent to the telephone number that the member has provided on their enrollment form or that has been updated by the member. This ensures that messages are directed to the intended recipient.
- Be sent at a frequency of no more than once a day and three times a week: To avoid overwhelming recipients, messages should be sent at a maximum frequency of once per day and no more than three times per week. This limitation helps balance the need for timely information with the importance of not causing message fatigue and becoming a nuisance.
- Offer an opt-out option, which must be immediately honored: Each message must include a clear option for the recipient to opt out of further communications. Any opt-out request must be honored immediately to respect the recipient’s preferences and comply with regulations.
- Clearly state the covered entities’ name and contact information: Messages should clearly state the name of the covered entity (in this case, the health plan or vendor) and provide contact information. This transparency helps recipients understand who is contacting them and how to reach out for more information or assistance.
- Be concise: Communications should be brief and to the point. Providing clear, concise information ensures that recipients can quickly understand the purpose of the message and take any necessary actions without confusion. CMS also requires that all communications to members be 6th-grade reading level.
By following these guidelines, health plans can effectively use calls and text messages to support their members while remaining compliant with regulatory requirements. To learn more about BeneLynk’s retention services, read our Retention Lynk brochure. You can also read more of our thoughts on TCPA as it relates to text messaging by downloading our whitepaper!