HHS and CMS Request FCC Opinion on Text Messaging by Contractors and MCOs

HHS Secretary Becerra and CMS Administrator Brooks-LaSure have formally asked for an opinion from the Federal Communications Commission (FCC) regarding whether certain text messages and automated, pre-recorded telephone calls to individuals’ cell phones are permissible under the Telephone Consumer Protection Act (TCPA). Prior rulings from the FCC have confirmed that neither federal nor state governments are considered “persons” who are prohibited from sending text messages and automated calls (also known as “robo” calls) without prior express consent.

Text messaging and automated calls to cell phones can be a fast, efficient, and cost-effective way to reach Medicaid and CHIP enrollees whose mail has been returned. These communications modes are also important ways to follow-up with enrollees who must take action to avoid a loss of coverage. If confirmed, routine text messaging could become a best practice in communications between public health coverage programs and enrollees.

CMS has been working with the FCC to clarify its understanding of how the TCPA relates to Medicaid and CHIP contractors – such as call centers, enrollment brokers, and managed care plans. The letter specifically asks the FCC to confirm HHS/CMS’ understanding that the following parties are immune from suit under the TCPA in delivering certain text messages and automated, pre-recorded calls to individuals:

  • State and federal government employees
  • State and federal government contractors when the government agency authorizes and directs the contractor’s actions;
  • If a state has delegated eligibility to local government entities (e.g., agencies of cities and counties), the local government employees as will its contractors when the local government entity authorizes and directs the contractor’s actions and the agency validly confers that authorization; and,
  • Managed care entities and, if applicable, their parent companies providing coverage to Medicaid, CHIP, or BHP enrollees under contract with a state agency, as will their contractors when the managed care entity or its parent company authorizes a and directs the contractor’s actions and the entity validly confers that authorization.

The letter goes on to describe the Medicaid continuous coverage protection during the COVID-19 public health emergency and what happens when it is lifted. HHS/CMS makes the case that individuals have given consent to be contacted by phone when they provide their cell phone numbers and know that they may be contacted regarding their eligibility and enrollment in health coverage.

Let’s hope the FCC responds quickly to the letter dated April 28, 2022. It will make it easier for the states and their contractors to encourage enrollees to keep their contact information up-to-date and follow-up when information is needed to complete the renewal.

While text messaging is an important tool for communicating with Medicaid enrollees, individuals should still be provided with an easy way to “opt out.” Having the ability to simply reply “stop” would be important for enrollees who do not wish to receive text messages or have limited cell plans. States should also think about updating their applications and/or online accounts for individuals to explicitly indicate their communication preferences.