FCC Seeks Comment on HHS/CMS Request for Certainty About Communications Critical to Federal and State Health Insurance Programs Post-Pandemic | Faegre Drinker Biddle & Reath LLP

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Reacting quickly to a joint request by the U.S. Department of Health and Human Services (HHS) and the Centers for Medicare & Medicaid Services (CMS) (collectively, the Health Agencies) last Thursday, the FCC released a Public Notice on May 3, 2022, inviting comments about the way it should make clear “that certain automated calls and text messages or prerecorded voice calls regarding enrollment in state Medicaid and other governmental health coverage programs are permissible under the Telephone Consumer Protection Act (TCPA).” Recognizing the time-sensitive nature of the Health Agencies’ request, the FCC established a brief cycle for public comment – comments are due in 14 days on May 17, 2022, and any reply comments are due on May 24, 2022.

The Health Agencies’ letter describes certain text messages and calls it anticipates would contain content that “encourage[s] . . . 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 communications sought to be covered would arise when the federal government agencies seek to speak with enrollees as to modified legal requirements and when enrollees have to know to take affirmative steps to substantiate their continued program enrollment after the tip of the COVID-19 public health emergency (PHE). The letter states that these particular calls and texts are critical and time-sensitive to public health purposes because they might prevent the lack of healthcare coverage for a lot of tens of millions of Americans. The Health Agencies assert that relying solely on enrollee mailing addresses is unreliable and postal mail may not reach many enrollees. The window for essential motion is brief: agencies may only have 60 days after the federal government proclaims the tip of the PHE to speak what enrollees must do to make sure they’ve continuing coverage.

For these reasons, the Health Agencies asked the FCC to substantiate that the next groups of callers can be immune from TCPA liability from placing prerecorded calls or texts to cellphones:

  1. state and federal government employees and their contractors operating inside the instruction of the state or federal government;
  2. local government employees and contractors under delegated authority by a state government agency; and
  3. managed care entities, their parent corporations that provide Medicaid, CHIP, BHP coverage, and their contractors under contract with a state agency.

The letter states the Health Agencies’ anticipation that “not more than 6 to eight individual messages [or calls] can be sent to any individual enrollee” in three phases and this system would come with in each message or call “information on how you can opt out of” receiving future messages or calls. Each of the three phases is meant to remind enrollees to contact their program and update their contact information, to hunt missing information for verifying eligibility when processing renewals, and to notify individuals who are not any longer eligible for this system of certain time-limited actions they’ll take to enroll in one other health coverage program. The Health Agencies plan to start the messaging or calling campaigns “as soon as clarification is issued by the Commission” and estimate them to “end roughly 18 months after the tip of the” PHE.

Without elaborating much on a TCPA legal evaluation, the Health Agencies assert that these described calls and messages are permissible under the TCPA because individuals who applied for coverage had provided prior express consent to be contacted by this system regarding eligibility for and enrollment in coverage, although “the applying form may not state explicitly that the person may receive automated text messages or pre-recorded phone calls.” The letter also states that because “the federal or state government is definitely the maker of the decision,” it will not be required to acquire prior consent and their contractors could “qualify for types of derivative immunity.” The Health Agencies didn’t explicitly invoke the emergency purpose exception to the TCPA’s consent requirements, although that presumably could also think about any FCC decision on the request for clarification.

The FCC’s quick motion searching for comment on this request suggests that it’s on a quick track for FCC consideration. Any FCC guidance that follows could possibly be significant for state and native governments and for presidency contractors preparing to have interaction in a variety of communications by various governmental entities and parties that manage government profit programs in regards to the coverage consequences surrounding the tip of the PHE. Interested parties should note the short deadlines and consider filing comments or reply comments to this proceeding within the FCC docket 02-278.

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