HIPAA, the TCPA and Robodialing

Over the past several months, we have received several questions regarding how HIPAA interacts with the FCC’s implementation of rules under the Telephone Consumer Protection Act (TCPA).  Specific questions center around when authorization may be required for calling cell phones or sending text messages to cell phones that include health-related content, such as a reminder to pick up or refill a prescription.

In relevant part, FCC’s preamble and final rule, 77 Fed. Reg. 34,233 (June 11, 2012), addresses “delivery restrictions” to limit the messages that may be delivered to cell phones/by text and to residential land lines.  47 C.F.R. 64.1200.

Messages to Cell Phones/Text Messages

The first part of the rule, regarding cell phones/text messages, provides that no person or entity may:

(2) Initiate, or cause to be initiated, any telephone call that includes or introduces an advertisement or constitutes telemarketing, using an automatic telephone dialing system or an artificial or prerecorded voice, to any of the lines or telephone numbers [assigned to a paging service, cellular telephone service], other than a call made with the prior express written consent of the called party or the prior express consent of the called party when the call is made by or on behalf of a tax-exempt nonprofit organization, or a call that delivers a “health care” message made by, or on behalf of, a “covered entity” or its “business associate,” as those terms are defined in the HIPAA Privacy Rule, 45 C.F.R. 160.103.

47 C.F.R. § 64.1200(a)(2).

The cell phone portion of the rule contains two important limitations.  First, if calls are not made by an automatic telephone dialing system or autodialer, the rule does not apply. The rule defines automatic telephone dialing system or autodialer as “equipment which has the capacity to store or produce telephone numbers to be called using a random or sequential number generator and to dial such numbers.”  47 C.F.R. § 64.1200(f)(2).

Second, if the message sent to a cell phone or by text is not advertising or telemarketing, the rule does not apply.  “Advertisement” is defined as “any material advertising the commercial availability or quality of any property, goods, or services” and “telemarketing” means the “initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services, which is transmitted to any person.”  47 C.F.R. § 64.1200(f)(1) and (12).

Messages to Residential Phone

The rule also addresses calls to residential phone lines.  No person or entity may:

(3) Initiate any telephone call to any residential line using an artificial or prerecorded voice to deliver a message without the prior express written consent of the called party, unless the call;

(v) Delivers a ‘‘health care’’ message made by, or on behalf of, a ‘‘covered entity’’ or its ‘‘business associate,’’ as those terms are defined in the HIPAA Privacy Rule, 45 CFR 160.103.

47 C.F.R. § 64.1200(a)(3)(v) (emphasis added).  Thus similar to the restrictions for cell phones/text messages, the requirement of obtaining prior express written consent before calling a residential line only applies if the caller is using an artificial or prerecorded voice.

Exemption for Health Care Messages

The provisions addressing calls to residential lines and cell lines and text messages both contain the identical limitation – the rule does not apply to “a call that delivers a ‘health care’ message made by, or on behalf of, a ‘covered entity’ or its ‘business associate,’ as those terms are defined in the HIPAA Privacy Rule, 45 C.F.R. 160.103.”   47 C.F.R. § 64.1200(a)(2) (cell phones and texts); 47 C.F.R. § 64.1200(a)(3)(v) (residential lines).  The FCC does not otherwise define “health care message” except by reference to the HIPAA rule, which in turn defines “health care” as “care, services, or supplies related to the health of an individual” including, but not limited to, “[s]ale or dispensing of a drug, device, equipment, or other item in accordance with a prescription.”  45 C.F.R. § 160.103.

The FCC does extensively discuss this exemption to the TCPA rule in the preamble.  See 77 Fed. Reg. at 34,240, col. 1 – 34,241, col. 2.  In explaining its rationale for exempting all health care messages from the TCPA rule, the FCC states the following:

In the FTC's TSR [Telemarketing Sales Rule] proceeding, concern was raised, in relevant part, whether immunization reminders, health screening reminders, medical supply renewal requests, and generic drug migration recommendations would constitute inducements to purchase goods or services. In the FCC's proceeding, one commenter argues that a call “pushing” flu vaccines would be illegal under the TCPA. Without reaching the merits of this argument, the Commission does believe that an exemption for prerecorded health care-related calls to residential lines is warranted when such calls are subject to HIPAA. With respect to the privacy concerns that the TCPA was intended to protect, the Commission believes that prerecorded health care-related calls to residential lines, when subject to HIPAA, do not tread heavily upon the consumer privacy interests because these calls are placed by the consumer's health care provider to the consumer and concern the consumers' health. Moreover, the exemption the Commission adopts in document FCC 12-21 does not leave the consumer without protection. The protections provided by  HIPAA safeguard privacy concerns. Under the second prong of the TCPA exemption provision, which requires that such calls not include an unsolicited advertisement, the Commission finds the calls at issue here are intended to communicate health care-related information rather than to offer property, goods, or services and conclude that such calls are not unsolicited advertisements. Therefore, such calls would satisfy the TCPA standard for an exemption as provided in the Act and the FCC's implementing rules.

77 Fed. Reg. at 34,241, cols. 1-2 (emphasis added).

This preamble explanation of the exemption for HIPAA-covered calls arises in the context of a discussion of the residential lines part of the rule, not cell phones.  However, as discussed above, the part of the rule regarding residential lines and the part of the rule regarding cell phones and text messages both contain an identical HIPAA exemption. As the final rule in 47 C.F.R. § 64.1200 uses the identical language to exempt HIPAA covered messages from both cell phone calls and residential calls, it is our view that it is reasonable to extend the preamble language to both types of calls as well.

In sum, absent any FCC pronouncements indicating otherwise, it appears that the FCC rule does not apply to health care messages that are regulated under HIPAA.  For phone communications, the HIPAA requirements apply.  This means that a message, such as a refill reminder, must comply with HIPAA and that the FCC TCPA rule would not apply to the communication.

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