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Calls by Health Care Providers Regarding COVID-19 Do NOT Require Prior Express Consent

The Telephone Consumer Protection Act codified at 47 U.S.C. § 227 (“TCPA”) restricts the use of automatic telephone dialing systems, artificial or prerecorded voice messages, SMS text messages, and the sending of facsimiles both for telemarketing and  informational calls.

With regard to calls made by health care providers, in a previous Declaratory Ruling and Order issued on July 10, 2015, the FCC excepted calls made by health care providers via artificial/prerecorded voice and text messages to cellphones without the consumers’ prior express consent, to provide important “health care” messages as defined and covered by the HIPAA Privacy Rule under 45 CFR § 160.103. These exceptions include health care messages relating to:

  • Appointments and exams;
  • Confirmations and reminders;
  • Wellness checkups;
  • Hospital pre-registration instructions;
  • Pre-operative instructions;
  • Lab results;
  • Post-discharge follow-up intended to prevent readmission;
  • Prescription notifications; and
  • Home health care instructions.

Due to the COVID-19 pandemic, the FCC issued a declaratory ruling lifting the prior express consent requirement for calls made to patients specifically related to COVID-19. 

The ruling states, “On our own motion, we confirm that certain callers may lawfully make automated calls and send automated text messages to wireless telephone numbers when such calls are necessary to protect the health and safety of citizens pursuant to the TCPA’s ‘emergency purposes”’exception.”

The FCC acknowledges that the current COVID-19 pandemic constitutes an imminent health risk to the public, which satisfies the regulations governing emergency calls. 

The following callers and types of calls are now expressly included in the exception for emergency purposes:

·  The identity of the caller must be a hospital, health care provider, state or local health official or other government official, or a person acting under the direction of such an organization and acting on its behalf and

·  The content of the call must be solely informational, made necessary because of the COVID-19 outbreak, and directly related to the imminent health or safety risk arising out of the COVID-19 outbreak.

Calls not covered by this ruling include calls made for telemarketing purposes or to collect a debt (even if the debt is related to COVID-19).  These types of calls still require the prior express consent of the called party.

© 2020 Dinsmore & Shohl LLP. All rights reserved.National Law Review, Volume X, Number 86

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About this Author

Karen Hockstad, Dinsmore shohl, business attorney, tax lawyer
Partner

With extensive experience representing a wide variety of businesses and entrepreneurs, Karen is adept at counseling clients through a variety of transactional and tax matters. She also has experience in guiding her clients through litigation, having represented clients in cases throughout the country. Her unique background allows her to see and help avoid potential litigation issues in business transactions. Her business and tax knowledge is an asset in helping her commercial litigation clients. Karen is a member of the Corporate and Litigation Departments.

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614-628-6930
Matthew Arend Litigation Attorney Dinsmore Shohl, privacy, data security
Partner

Matt is a member of the Health Care Practice Group, focusing his practice on all aspects of federal and state privacy and data security issues, including HIPAA compliance, breach analyses, and governance. He also routinely advises clients on compliance with federal and state anti-kickback laws, Stark law, Sunshine Act, Medicare Secondary Payer laws, pharmaceutical marketing rules and other regulatory matters. Additionally, his thorough knowledge of the healthcare arena enables him to counsel clients through audits and investigations, as well as providing training and strategic planning counseling. 

513-977-8388