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Health Care Providers Join Groups Seeking Clarification of TCPA


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In particular, the health care petitioners seek clarification on phone calls to consumers to ensure compliance with HIPAA and the TCPA following the Federal Communications Commission’s ruling on the law in 2015.

8/30/2018 15:30

The Federal Communications Commission’s 2015 Declaratory Ruling and Order on the Telephone Consumer Protection Act leaves some questions unanswered for the health care industry, according to a Aug. 24 letter from the American Association of Healthcare Administrative Management to the commission.

The association and other petitioners including Anthem Inc., Blue Cross Blue Shield Association and Wellcare Health Plans Inc., filed a petition with the FCC in July 2016 seeking clarification on two issues under the TCPA, according to the letter:

  1. “That the provision of a phone number to a ‘covered entity’ or ‘business associate’ (as those terms are defined under Health Insurance Portability and Accountability Act of 1996 (HIPAA)) constitutes prior express consent for non-telemarketing calls allowed under HIPAA for the purposes of treatment, payment or health care operations.”
  2. “That the prior express consent clarification in paragraph 141 and the non-telemarketing health care message exemption granted in paragraph 147, both in the 2015 Omnibus TCPA Order, be clarified to include HIPAA ‘covered entities’ and ‘business associates.’ Specifically, each use of the term ‘health care provider’ in paragraphs 141 and 147 of the 2015 Omnibus TCPA Order should be clarified to encompass “HIPAA covered entities and business associates.”

The letter also notes that in addition to the two years since the joint petition, it has been several months since the U.S. Court of Appeals for the D.C. Circuit’s decision in ACA International v. Federal Communications Commission, et al. and without clarification on provisions of the TCPA.

In June 2018, the petitioners submitted comments to the FCC in response to the decision in ACA Int’l v. FCC and distributed letters to members of Congress about the requests in the joint petition, according to the letter written by Arpan A. Sura, counsel to American Association of Healthcare Administrative Management.

“As these submissions explain, there is no longer any reason for the commission to delay grant of the joint petition now that the U.S. Court of Appeals for the District of Columbia Circuit has issued a decision regarding the 2015 Omnibus TCPA Order. The D.C. Circuit’s ACA International decision confirms that the FCC has broad authority to harmonize the TCPA and HIPAA,” it states.

ACA International also continues to seek clarity on the interpretation of the TCPA on behalf of members and the accounts receivable management industry. ACA International has been seeking these reforms through Congress, the FCC, and most recently in its victory in the U.S. Court of Appeals for the D.C. Circuit.

Overall, ACA’s comments focus on the need to communicate with consumers about needed informational, impact of frivolous litigation under the TCPA for businesses, conflicting case law and interpretations of the law that have not kept up with technology used by consumers and business, such as smartphones and automatic telephone dialing systems.

The FCC is tasked with revisiting the definition of an ATDS following the D.C. Circuit Court’s decision, which struck down the overly broad interpretation of what was considered an autodialer.

Related Content from ACA International:

Working for You: ACA Calls for FCC to Clarify TCPA As Soon As Possible

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