On February 15, 2012, the US Federal Communications Commission (FCC) issued a Report and Order in the matter of the rules and regulations for implementing the Telephone Consumer Protection Act of 1991.
Over the past several days, I’ve heard a lot about it because some of our customers and others in the industry are wondering how it affects CareTouch and others who use automated telephone systems for patient followup.
In short, it doesn’t affect us or other automated telephone patient-follow programs at all.
The intent of the Report and Order was to improve rules and regulations to further protect consumers from unwanted calls. Most significantly, the order states that consumers must provide prior *written* consent before a telemarketer can contact that consumer with automated calls.
What wasn’t clear in most of the articles and commentary surrounding the story, was that a 2008 amendment to the Act exempted health care related calls. That exemption was carried forward in the February, 15 order (see paragraph 57 of the Report and Order).
Here is an excerpt from that paragraph…
“In view of the privacy protections afforded under HIPAA, we exempt from our consent, identification, time-ofday, opt-out, and abandoned call requirements all prerecorded health care-related calls to residential lines that are subject to HIPAA.”
Paragraph 59 goes on to explain the reasons why health care related calls were excempted…
The FTC’s Approach. In its 2008 amendment to the TSR, the FTC exempted health care related prerecorded message calls subject to HIPAA from its restrictions on such calls, basing its determination on six primary considerations.168 First, the FTC found that delivery of health care-related prerecorded calls subject to HIPAA is already regulated extensively at the federal level. Second, it found that coverage of such calls by the TSR could frustrate the Congressional intent embodied in HIPAA, as well as other federal statutes governing health care-related programs. Third, the FTC found that the number of health care providers who might call a patient is inherently quite limited–as is the scope of the resulting potential privacy infringement–in sharp contrast to the virtually limitless number of businesses potentially conducting commercial telemarketing campaigns. Fourth, the FTC found that there is no incentive, and no likely medical basis, for providers who place health care-related prerecorded calls to attempt to boost sales through an ever-increasing frequency or volume of calls. Fifth, the FTC concluded that the existing record did not show that ‘‘the reasonable consumer’’ would consider prerecorded health care calls coercive or abusive. Finally, FTC enforcement experience did not suggest that health care-related calls have been the focus of the type of privacy abuses the exemption was intended to remedy. For these reasons, the FTC determined, pursuant to both its authority under the Telemarketing Act and its authority under the FTC Act, that health care-related prerecorded message calls subject to HIPAA should be exempt from the TSR because application of the TSR to such calls “is not necessary to prevent the unfair or deceptive act or practice [that harms consumer privacy] to which the [TSR] relates.”
Related Links
Complete Report and Order Document (pdf)
Statement Of Chairman Julius Genachowski (pdf)
Statement Of Commissioner Robert M. Mcdowell (pdf)
Statement Of Commissioner Mignon L. Clyburn (pdf)
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