In today’s post-COVID world, Americans have come to rely on mobile and wireless technology more than ever — for everything from remote learning and working to connecting with friends and family to accessing healthcare.
For many, these technologies are merely a convenience of modern life — connecting with colleagues, loved ones and healthcare professionals is seamless and often instant. For many others, it’s not. Socioeconomic and infrastructural deficiencies, such as a lack of broadband access or mobile phone service, continue to hinder these communications for low-income rural and even urban populations. The implications of these barriers have been magnified during the COVID-19 pandemic and, particularly, amid the shift to telehealth. Far too often and for far too long, the people and communities who would benefit most from enhanced connectivity are the ones being left behind by the technology meant to facilitate it.
The Federal Communications Commission (FCC) has worked to address disparities in broadband and mobile phone access through programs like Lifeline, which provides discounted phone service to qualifying low-income individuals. In 2016, the Commission modernized the Lifeline program to include broadband as a support service and recently sought comment on a $3.2 billion emergency broadband benefit program to enable internet access for low-income consumers.
The FCC’s efforts to eliminate these longstanding barriers and modernize its programs for the digital age are commendable and an important step in strengthening our nation’s public health infrastructure. Alongside these efforts, there is an additional opportunity at the policy level to address communication barriers preventing patients from receiving critical information from healthcare professionals and government agencies. The opportunity lies in modernizing the Telephone Consumer Protection Act (TCPA) — a decades-old law meant to protect consumers from harmful and unwanted robocalls — to permit legitimate communications between healthcare entities and consumers.
TCPA Protections & Limitations
Enacted in 1991, the TCPA restricts telemarketing calls and solicitations as well as the use of automatic telephone dialing systems (autodialers) and prerecorded voice messages in these exchanges. The law, as it is intended, is crucial; robocalls are a public nuisance at best and, at worst, illegal and financially harmful to consumers. Written before the advent of cell phones, the TCPA has since been updated to protect people from absorbing the minute-by-minute, text-by-text costs of marketing calls and solicitations to their mobile devices. But even as mobile plan costs have steadily declined and most have become unlimited, the law is still largely structured to protect mobile phone outreach on a pay-per basis. Despite this unbending approach, robocalls remain a major public annoyance, with a February 2021 Insider survey finding that 46% of Americans receive spam calls to their cell phones every day.
Though meant to block unsolicited telemarketing calls, the TCPA has had a residual effect on legitimate healthcare communications, in many cases, obstructing valuable, wanted and urgent messages from physicians and health plans regarding a patient’s care. Such communications may include appointment and prescription drug reminders, prescription drug recall notices, chronic disease management information, post-operative instructions and targeted healthcare-specific communications during natural disasters or other public health emergencies. They may also include messages regarding an individual’s eligibility for enrollment or re-enrollment in Medicaid — particularly imperative given the economic impact of the pandemic and high potential for relocation or displacement of Medicaid-eligible individuals.
An exemption to the TCPA was created in 2015 to permit rightful and legitimate healthcare communications with patients in compliance with HIPAA guidelines; however, the exemption has largely fallen short of this purpose, with its many technical requirements and ambiguities rendering it effectively inaccessible by healthcare organizations and providers. Specific barriers include:
- Uncertainty as to what constitutes consent by a healthcare patient, how long that consent is valid and to whom it applies.
- A litigious environment in which entities may face steep, strict liability penalties for violating any of the terms of the TCPA, regardless of degree or intent.
Despite subregulatory measures allowing petitions for declaratory rulings, appeals for a more meaningful healthcare exemption have been repeatedly denied. During the COVID-19 emergency period, the federal government granted an emergency order exempting calls and text messages from healthcare providers and government officials from TCPA rules. This order is a testament to the critical need to reach patients during a public health crisis or disaster of similar magnitude as well as the barriers to doing so under current TCPA regulations.
With the emergency authorization, healthcare entities and their business associates have been able to provide critical information and resources to patients, including COVID-19 education, benefit enhancements and extensions (e.g., availability of telehealth benefits and behavioral and mental health resources), prescription refill modifications and more. HMS data shows that, on average, 86% of Medicaid and Medicare enrollees have said these calls and messages are valuable. About 90%, when given the option to continue the message, say yes, while only about 1.4% opt out.
Finding a Meaningful Balance
The ambiguity of TCPA rules, combined with the litigiousness surrounding their interpretation and enforcement, has created an environment in which healthcare organizations and providers must prioritize compliance over care. Conceivably, a health plan is left to decide whether alerting patients to an early refill allowance for a life-sustaining medication in the face of an impending disaster is worth the potential legal and financial ramifications. The emergency TCPA exemption has been helpful during the current pandemic crisis and will be critical to the vaccination effort that promises to eradicate it. However, COVID-19 is far from the only — and far from the last — public health threat that necessitates an unobstructed communication path from provider to patient.
HMS provides technology, analytics and engagement solutions that reduce costs and improve health outcomes. As a partner to the nation’s largest government healthcare programs and hundreds of health plans, we commend the FCC’s ongoing efforts to create a more equitable broadband and wireless infrastructure to prevent our nation’s most vulnerable from being left behind. In this same spirit, we urge the Commission to reexamine the TCPA through a post-COVID lens and create a substantive healthcare exemption that enables, not hinders, patient engagement — making permanent exceptions for all healthcare related calls, texts and emails. Effective engagement can serve as a vital lifeline for patients; as healthcare becomes increasingly virtual, we must evolve our current systems to ensure we are able to meet them where they are.