FCC Issues Key Ruling About Medicaid Outreach

In Summary

  • The FCC has issued a new ruling allowing autodialed calls and texts about government healthcare plans.
  • The ruling clarified that renewal and policy termination calls and texts are not considered marketing.
  • This ruling comes at a critical time when millions will lose Medicaid eligibility.
  • The FCC cautioned callers and texters against using this ruling for telemarketing.
  • Drips has been tracking and supporting this change since it was introduced in May 2022.

The Federal Communications Commission (FCC) has issued a declaratory ruling that allows federal and state governmental agencies and their partners to make autodialed phone calls and text messages to raise awareness of the eligibility and enrollment requirements for Medicaid and other governmental healthcare programs. The ruling clarifies that renewal and policy termination texts sent by government agencies and their partners are not considered marketing messages, which can be restricted under the Telephone Consumer Protection Act (TCPA). Drips has been tracking and supporting this ruling since it was requested in May 2022, and we are excited to see the benefits it will bring to consumers and healthcare providers.

“This ruling allows companies to convey critical health insurance information to consumers without fear of spurious lawsuits, while maintaining protections against unwanted spam and fraud. It will hopefully serve as a model for similar rulings in the private health insurance renewal market.” Daniel Delnero Principal Squire Patton Boggs (US) LLP

Why This Matters

Due to COVID-19, the government implemented the continuous enrollment requirement, which paused Medicaid redeterminations to ensure that enrollees were not at risk of losing coverage. This change has been extended several times but is slated to end in April of this year. When it does, millions of Americans will need to complete renewals to redetermine their eligibility to keep their coverage. However, this process has been complicated by staff shortages at state agencies that administer the Medicaid program.

In this environment, millions of consumers are at risk of losing coverage that they need due to a lack of effective outreach. The FCC’s ruling empowers certain healthcare companies to contact consumers and help them avoid coverage losses without fear of violating the TCPA.

“With the HHS projecting 15 million people to lose Medicaid coverage during the redetermination period, keeping this vulnerable population insured is of utmost importance. We supported this ruling back in May 2022 to ensure that health insurers can communicate critical healthcare related messages without unneeded regulatory burden.” —Dan Fox, Managing Director of Healthcare, Drips

 What Changed?

The TCPA generally requires a recipient’s prior express consent before making a call or text, including “robocalls” and automated texts from an automatic telephone dialing system (ATDS). If a robocall includes or introduces an advertisement or constitutes telemarketing, consent generally must be in writing. This requirement limits which consumers can receive certain messages if they might be seen as marketing. Previously, it had been disputed whether contact about renewal or loss of benefits should be considered marketing or if it should be viewed as informational or transactional.

The TCPA is great for consumers when it protects them from unsolicited advertisements. In fact, the FCC was clear that its ruling does not allow additional telemarketing calls or texts unrelated to the insurance application submitted by the consumer.

However, the TCPA is not so great when it prevents consumers from receiving important notices affecting their health. The FCC ruling recognizes that consumers generally want and expect to receive calls and texts related to renewal and potential loss of coverage when they apply for government health insurance. They expect outreach such as reminders about upcoming deadlines, information on how to renew coverage, and answers to their questions about the enrollment process. By allowing these communications, the FCC ensured that the TCPA continues to protect consumers without preventing the valuable outreach they want to receive.

 How We Got Here

This ruling stemmed from a request by the U.S. Department of Health and Human Services (HHS). Drips discussed this issue last year when the HHS first made its request, and we issued a formal comment to the FCC in support of the petition. We supported this clarification because we could foresee the risk posed to disengaged consumers by the upcoming wave of Medicaid redeterminations. Healthcare providers need to be able to effectively reach members about their coverage, even after they lose eligibility. With this ruling, certain providers will be empowered to help lapsed members find new coverage, which could ultimately lead to significantly improved health outcomes for Americans. We applaud the FCC for working quickly to deliver a ruling that will benefit consumers by ensuring they can receive urgent, actionable communications.

Drips has been following and preparing for this change since it was first introduced, and we are experienced in helping payers implement effective outreach strategies. If you’d like to learn more, please contact us.

Disclaimer: This blog and all information contained in it does not, nor is it intended to, constitute legal advice; instead, all information and content herein is for educational and informational purposes only. Information in this blog may not constitute the most up-to-date information, and Drips, the writers of this blog, and any contributors or contributing law firms herein disclaim any obligations relating to the timeliness or accuracy of the information contained here. No warranties should be implied. All liability with respect to any actions taken or not based on the contents of this blog is expressly disclaimed. Readers should consult with an attorney to obtain advice with respect to any particular legal manner, and no reader should act or refrain from acting on the basis of information on this blog without first seeking legal advice from counsel in the relevant jurisdiction.

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