In the midst of constantly evolving regulations in the healthcare industry it can be difficult to keep up with changes that are not industry-specific. Through the blur of new issues arising from the Affordable Care Act, HIPAA concerns from constant data breaches, and the shift to ICD 10, the FCC's new declaratory ruling on the Telephone Consumer Protection Act (TCPA) has gone largely unnoticed in healthcare organizations.
As of July 10, 2015 your hospital or medical practice may be in violation of new FCC consumer protection regulations simply by calling your patients on their cell phones.
What is the TCPA ?
Congress enacted the TCPA in 1991 to prevent violations of consumer privacy in the form of telemarketing phone calls. The original language, in-part, prohibited making non-emergency calls to a wireless number using an automatic telephone dialing system (autodialers) or an artificial prerecorded voice without prior express consent.
The FCC has issued several declaratory rulings to clarify specific aspects of the TCPA since its implementation to accommodate consumers' right to privacy as well as the "legitimate business interests of telemarketers." The most recent ruling was released on July 10, 2015 and changes made by the FCC have far reaching implications - even for your medical practice.
The latest ruling came in response to a growing number of consumer complaints - TCPA complaints are the largest category of informal complaints to the FCC with an average of between 5,000 and 6,000 complaints per month in 2013 and 2014 - as well as 27 petitions for clarification from companies across various industries.
How does it affect how you?
The FCC is now requiring express consent for all voice calls and texts made to a wireless number with an autodialer.
The new ruling clarifies the definition of an autodialer, and the new expanded definition calls into question all modern phone systems, extending compliance concerns to organizations that have not previously been affected by the law - including healthcare organizations. Even if your practice doesn't use a formal predictive dialing system, you could still be using what the FCC has defined as an autodialer.
The ruling further complicates things by stating that this consent must come from the actual "called party" - the subscriber or plan holder of the cell phone dialed or a non-subscriber customary user - not the "intended recipient." Therefore, phone calls made to cell phone numbers that have been reassigned without the knowledge of the caller are still in violation of the TCPA.
What is an autodialer and is your healthcare organization using one?
According to the FCC, an autodialer is any dialing equipment with the capacity to:
- Store or produce telephone numbers to be called, using a random or sequential number generator; and,
- to dial such numbers.
The regulation further clarifies the capacity of an autodialer is not limited to its current use or ability, but also extends to any potential functionality or future abilities that the dialing equipment could be modified to include. In other words, if the addition of software or hardware to your organization's phone system could potentially render it an autodialer it is covered under the act.
Nearly all modern dialing equipment meets this definition; some even argue that it includes cell phones. The FCC has decided it will make determinations on what is an autodialer on a case by case basis, and as of this time there have been no cases to determine what equipment is "safe."
To learn more about how the TCPA affects your medical practice, watch our TCPA Compliance presentation and download the slide deck for future reference.
You can also read the full language of the declaratory ruling here.
Written by Ali Bechtel, Public Relations Coordinator
This information is not to be construed as legal advice. Legal advice must be tailored to the specific circumstances of each case. Although we attempt to provide up-to-date information, laws and regulations often change. We make no claims, promises, or guarantees about the accuracy or completeness of this document. For legal advice, please consult an attorney.