[co-author: Brittany Bratcher]

On April 28, 2022, in a joint letter written by the HHS Secretary, Xavier Becerra, and CMS Administrator, Chiquita Brooks-LaSure, to the Chairwoman of the Federal Communications Commission (FCC), HHS requested an opinion regarding whether certain text messages and automated, pre-recorded telephone calls to individuals’ cell phones are permissible under the Telephone Consumer Protection Act (TCPA).

The content of the communications would be to encourage individuals to follow-up with their state Medicaid program, Children’s Health Insurance Program (CHIP), Basic Health Program (BHP), or Health Insurance Marketplace (Marketplace) regarding their health coverage enrollment. The letter notes that about 15.8 million enrollees in Medicaid could be at risk of losing coverage when the COVID-19 public health emergency ends. HHS also notes that difficulties posed by the pandemic, including the sizeable increase in Medicaid, BHP, and CHIP enrollees and staff shortages at CMS, have made it difficult to communicate with individuals regarding their enrollment in these programs.

To aid state and local agencies in contacting individuals who may lose health coverage when the public health emergency ends, the letter suggests that enrollees could more easily follow requirements to maintain enrollment if state agencies and their partners were able to communicate with enrollees through text messaging, automated phone calls, and pre-recorded calls.

Specifically, the letter requests confirmation from the FCC of the following:

1. State and federal government employees who deliver such communications to individuals are generally immune from suit under the TCPA.

2. Duly authorized state and federal government contractors who deliver such communications to individuals are generally immune from suit under the TCPA.

3. In instances where a state government agency has delegated the authority to determine Medicaid, CHIP, or BHP eligibility to local government entities, such as cities and counties, the local government employees (and its duly authorized contractors) who deliver such communications to individuals are generally immune from suit under the TCPA.

4. Managed care entities and their parent companies providing Medicaid, CHIP, or BHP coverage to enrollees (and their duly authorized contractors) under contract with a state agency who deliver such communications to individuals are generally immune from suit under the TCPA.

According to the letter, HHS anticipates that no more than six to eight communications would be sent to each individual by state government entities, local government entities, or contracted managed care entities to enrollees’ contact phone numbers and that the content of the communications would be to verify enrollees’ mailing addresses and contact information, remind eligible enrollees to renew their coverage, and inform ineligible enrollees of other health coverage programs for which they may be eligible.

The TCPA prohibits “persons” from making phone calls and sending text messages using an automatic telephone dialing system or an artificial or prerecorded voice, except under limited circumstances, such as when the called party has given “prior express consent,” or, in some cases, “prior express written consent.” HHS stated that it believes the contemplated communications to enrollees are permissible under the TCPA for the following reasons:

• Prior Express Consent. Enrollees provided consent to be contacted by phone by the program for which they are eligible or may be eligible when they applied for coverage. The application form states that applicants may be contacted if more information is needed. HHS believes this consent also extends to contractors of state and local agencies, the Marketplace, and managed care entities.

• Maker of theCall. The FCC clarified in an adjudicatory ruling effective February 12, 2021 that neither federal, state, or government callers are considered “persons” under the TCPA when making calls in the conduct of official government business. See Government and Government Contractor Calls Under the Telephone Consumer Protection Act of 1991, 86 FR 9299, 9300 (Feb. 12, 2021). However, a federal or state government contractor, and a local government entity is considered a “person” under the TCPA except when the federal or state government is actually the “maker of the call.” The letter argues that the state or federal program will be so involved in the content, timing, and recipient list of the calls or text messages, that it should be deemed the “maker of the call” for the purposes of the TCPA even if such communications are done by a contractor, thereby making these communications legal under the TCPA.

HHS is now seeking confirmation from the FCC “as soon as possible” that these communications are permissible under the TCPA so that it may commence communications with Medicaid, CHIP, and BHP enrollees about their health coverage in anticipation of the eventual end date to the COVID-19 public health emergency.

This request by HHS will be of interest to healthcare providers that assist individuals in signing up for need-based coverage or else offer their own affiliated plan and contemplate the use of the enrollee’s contact information to communicate regarding provider’s services.

The full letter by HHS can be downloaded here.