HHS Seeks FCC Guidance on TCPA for Health Coverage Robocalls

The Health and Human Services Department asked the FCC to clarify whether certain automated, prerecorded calls and text messages are allowed under the Telephone Consumer Protection Act. "We anticipate that no more than six to eight individual messages will be sent to any individual enrollee through some combination of text messages and automated, pre-recorded calls," said HHS Secretary Xavier Becerra and Centers for Medicare & Medicaid Services Administrator Chiquita Brooks-LaSure, in a letter posted Friday in docket 02-278. The calls and texts would end "approximately 18 months after the end of the public health emergency."

The COVID-19 pandemic has "disrupted routine eligibility and enrollment operations," the letter said, citing a March Urban Institute report that estimated "as many as 15.8 million people may lose their Medicaid coverage when the public health emergency ends and the continuous enrollment requirement is no longer in effect." The department asked the FCC to clarify that state and federal government employees making these calls or texts are generally immune from lawsuits, as are government contractors if an agency authorized their actions. It also asked if managed care entities and their parent companies providing Medicaid, children's health insurance program (CHIP) or basic health program (BHP) are immune. CMS employees may also send texts or robocalls to support states' efforts, HHS said.

The department said it believed the calls and texts are permissible because individuals "provide consent to be contacted by phone by the program for which they are eligible or may be eligible" when applying for coverage. "The provision of a cell phone number at application and a signature acknowledging the terms stated on the application form could be considered 'prior express consent,'" the letter said, adding the consent could be extended to other entities involved in eligibility or enrollment efforts.

HHS said the calls and texts would be made to "encourage individuals to follow-up with their state Medicaid program," CHIP, BHP or health insurance marketplace for health coverage enrollment. The campaign will consist of "three types of text messages or automated, pre-recorded calls during three different phases of the renewal process" in most states, HHS said. The first phase will target enrollees "whose most recent renewal may have been delayed due to the public health emergency." The second may include calls and texts seeking additional information to "complete the redetermination of eligibility." The final phase would target individuals that may no longer be eligible for the program they were enrolled in.

"The time frame between this request and the end of the continuous enrollment requirement may be short," HHS said. The department plans to provide at least a 60-day notice before the expiration of the public health emergency, and "understand[s] the urgency felt by states to move forward with outreach to their enrollees." The planned calling and texting campaigns "would not only reduce gaps in coverage, but would also reduce the administrative burden on state agencies as they navigate an extraordinary volume of renewals," the letter said. HHS also sought clarification on what constituted prior express consent.