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Federal Communications Commission Issues Final Rule: Is Your Organization Compliant?

October 04, 2016

The Federal Communications Commission (FCC) issued its final rule about automated federal debt collection calls under the Telephone Consumer Protection Act (TCPA). The rule will be effective 60 days after the Jan. 1, 2017, publication in the Federal Register, and it implements the Bipartisan Budget Act of 2015.

The act created an exemption from the TCPA prior to express consent rules for calls and text messages "made solely to collect a debt owed to or guaranteed by the United States."

New requirements include: 

  • Debt collection calls and/or texts will fall under the exemption for federal debts if the consumer is delinquent at the time the call is made, or at an imminent risk of delinquency as a result of the terms or operation of the loan program itself, and in the 30 days before such an event.
  • The exemption only applies to existing debts that the U.S. currently owns or is the guarantor of the debt. However, the FCC did not clarify which federal debts are included or excluded from coverage.

In addition, federal debt collection calls and texts:

  • May only be made to the consumer or another person or entity legally responsible for paying the debt.
  • Must only be about the debt in question, as any marketing content will transform the call into a non-exempt telemarketing call.
  • May only be made to one of three categories of wireless telephone numbers, and the numbers are limited to three federal debt collection calls in a 30-day period. Pre-recorded or artificial voice calls cannot exceed 60 seconds and text messages cannot exceed 160 characters. The three categories can be:
    • The wireless number the debtor provided at the time the debt was incurred, such as on the loan application;
    • A wireless number subsequently provided by the debtor to the owner of the debt or the owner’s contractor; or
    • A wireless number the owner of the debt or its contractor has obtained from an independent source, provided that the number actually is the debtor’s telephone number.
  • Can only be made between 8 a.m. and 9 p.m., of the called party’s time zone; and
  • Can only be made by the federal government or its contractor.


Penalties for TCPA Violation

TCPA carries statutory damages of $500 per violation and up to $1,500 if the violation is deemed “willful or knowing.”

How to Avoid Violating the TCPA

  1. Know the Rules
    • Providers can contact patients regarding:
      • Appointment and exam confirmations and reminders
      • Wellness check-ups
      • Hospital pre-registration instruction
      • Pre-operative instructions
      • Lab results
      • Post-discharge follow-up intended to prevent readmission
      • Prescription notification
      • Home health care instructions
    • But only if the contact meets the following criteria:
      • Be without charge to the patient (including not being charged against any calling plan limits that may apply)
      • Be made only to the number provided by the patient
      • Include the name and contact number of the health care provider
      • Be limited in the authorized purposes and not include any advertising, telemarketing, debt collection, billing, accounting or other financial content
      • Be concise, generally one minute or less for voice calls and 160 characters or less for texts
      • Be limited to no more than one message per day, up to a maximum of three per week, for each health care provider
      • Offer an easy method to opt out of receiving future messages, including an interactive method for voice calls and a “stop” reply for texts and immediately honor an opt-out request

  2. Be safe: Always get written consent

    Providers should incorporate receiving written consent in their regular admissions process. This can be achieved by adding language to the admissions forms that allow the provider to contact the patient via their personal mobile phone number.

  3. But consent isn’t always enough
    • Episode of care: Consent is limited to each episode of care. For each admission and visit, it is important to obtain written consent.
    • Revoke consent: A patient may revoke consent. Staff will need to maintain notes regarding each correspondence with the patient and notate each account where the patient has revoked consent.
    • Reassigned mobile numbers: In the event that a health care provider or related entity receives “prior express consent” to use a particular number, calling or messaging that mobile number may violate the TCPA if the number has been reassigned.
      If the number has been reassigned and the health care provider reaches another person unwillingly, such calls do not qualify as receiving “prior express consent.” The caller will always be forced to individually call and verify that the number is correct for the patient before sending an automated message.
       
  4. The rules only apply to Automatic dialing system (ATDS)

    The TCPA only covers the use of ATDS. Therefore, the provider is free to directly and personally call the patient without “prior written consent.”

  5. Providers are responsible for their vendors

    Any vendor a provider obtains in order to collect medical debt from patients is also subject to the TCPA rules. Any violation of the TCPA by the vendor can also implicate the provider. Even if the provider is compliant with the TCPA, they can still be held liable and subject to fines if their vendor imposes non-compliant collection methods.