Insurers Anthem, WellCare and their industry's lobbying group are campaigning the Federal Communications Commission to create guidance they hope will clarify whether they can reach out to their members via phone and text without getting hit by fines and litigation. Legal experts say the insurers have a valid concern.
At issue is a tweak to the Telephone Consumer Protection Act (TCPA), which restricts automated telemarketing calls. Last July, the FCC clarified that the law also applies to text messages.
The ruling provided some exception for "healthcare providers” without defining the term. Health plans would like the FCC to issue subsequent guidance clarifying that the term includes health plans and business associates.
“A critical part of Anthem's services are telephonic outreach to our members and that outreach includes medication management calls, calls assisting individuals living with one or more chronic diseases, and calls reminding individuals about needed wellness visits, dental visits or flu shots,” the plan says in a letter (PDF) to the FCC.
The company also revealed it met with FCC commissioners last month to state its concerns in person.
During its meeting it mentioned several studies that support the conclusion that Anthem's healthcare-related calls and texting programs are integral to improving the health outcomes of its members and more efficiently utilizing healthcare resources.
By limiting the exemption to “healthcare providers,” but not defining that term, health plans that attempt to deliver important healthcare messages by calls could face fines or litigation, Anthem notes.
The law imposes strict liability for violations and provides for statutory damages of between $500 and $1,500 per violation, i.e., per call, text, or fax.
America's Health Insurance Plans as well as WellCare, which also met with FCC commissioners, have also submitted similar letters to the agency.
Marc Roth, a partner in the advertising, marketing and media division of the Los Angeles-based law firm Manatt, Phelps & Phillips, said the insurers have a valid concern because the FCC regulation does not specifically speak to insurance companies.
Richik Sarkar, a member attorney at New Orleans-based McGlinchey Stafford, said some plaintiff attorneys view TCPA-related claims essentially as a cash register, given the potential financial reward.
“In the case of an insurance company, if you make a call and you're actually in the wrong," those fines of $500 to $1,500 start to add up, he said.
Justin Kay, a partner at Philadelphia-based Drinker Biddle & Reath, said the overall number of TCPA-related cases is growing.
In January, a class-action suit accused Prospect Medical Group's Southern California Hospital at Culver City of using an automated dialer to call a patient on her cellphone in order to collect a debt without having the patient's express consent to do so.
“Anything a company can do to get more clarification or protection related to TCPA is helpful, although recent 'clarifications' from the FCC have tended to be more helpful to plaintiffs than defendants," Kay said.
An FCC spokesman said the agency was reviewing the letters, but did not comment further.