The Centers for Medicare and Medicaid Services (CMS) has encouraged states to communicate with enrollees through non-mail means, and text messages and automated calls are an efficient and cost-effective way to contact consumers. But there were concerns about compliance with the Telephone Consumer Protection Act (TCPA), which was enacted to protect consumers from certain practices that were considered an invasion of privacy or a risk to public safety. The TCPA regulates telemarketing calls, autodialed and pre-recorded calls, and all types of informational and telemarketing robocalls. The TCPA prohibits telemarketing calls using a prerecorded or artificial voice without express consent for the call. These prohibitions led to concerns about liability on the part of government contractors to assist the state in communicating with Medicaid enrollees.
Last spring, HHS sent a written request to the Federal Communications Commission asking for an opinion regarding whether certain text messages and automated, pre-recorded telephone calls to individuals’ cell phones are permissible under the TCPA. The letter requested confirmation of previously-stated immunity for state and federal government employee under the TCPA, and whether text messages and robocalls from government contractors to individuals generally would be allowable if the government agency authorizes and directs the contractor’s actions. The request also asked about immunity for local government entities in states where the Medicaid agency has delegated eligibility responsibility to counties or cities. On May 3rd, the FCC opened a public comment period seeking feedback on the letter.
Just in the nick of time for the unwinding, in late January, the FCC responded to the CMS letter and public comments in a declaratory ruling that addresses the issue. Immediately after the ruling, CMS hosted an all-state call with the FCC presenting details about the guidance outlining the do’s and don’ts that can impact the unwinding
The FCC’s Consumer and Government Affairs Bureau clarified that:
- “Enrollees’ provision of a telephone number on an application for coverage in Medicaid or other government health care programs constitutes prior express consent to be contacted at that number regarding enrollment eligibility and the other reasons HHS describes in its petition because the purpose of those calls and texts is closely related to the purpose for which the enrollees provided their numbers.”
- “When the enrollee is no longer at that number or did not provide a number in the first place, federal and state governmental agencies may nevertheless use autodialers to call or send the text to reach those enrollees, despite a lack of prior express consent.”
There are some nuances in the FCC guidance. In particular, contractors will need to take care to check the reassigned numbers database to determine if the telephone number has been recently disconnected and therefore potentially reassigned to someone other than the person who originally gave consent.
But overall, the guidance was welcome news to managed care plans that can supplement the state’s communications and assistance resources to help keep eligible enrollees covered during the unwinding. While consumer protections are important, so is keeping your health insurance. States should embrace the FCC guidance and work with their contractors to ensure that they have the proper authorization and direction to appropriately boost the state’s communications efforts. We need all hands on deck using all available strategies as states gear up for the unwinding of the Medicaid continuous enrollment requirement. Doing so is also a consumer protection, safeguarding children and families from falling in the coverage gap and being at risk for medical debt that jeopardizes both their health and economic security.
[Editor’s Note: For more information, visit our Medicaid Continuous Coverage Unwinding resource page where you’ll find other blogs in this series, reports, webinars and the 50-state tracker.]