Insurers say a small change to FCC regulations will have a big impact on their ability to text and call patients

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Anthem and WellCare are among those petitioning the FCC to clarify language about communicating with patients. (iStock/Getty Images Plus/ViewApart)

A group of insurers is reviving a push for the Federal Communications Commission (FCC) to grant a 2016 petition that would clarify now HIPAA-covered entities can use text messages or calls to communicate with patients.

The group, led by the American Association of Healthcare Administrative Management (AAHAM), says two simple clarifications to the Telephone Consumer Protection Act (TCPA) would resolve ongoing confusion over a 2015 order that discourages organizations across the healthcare industry from providing patients with reminders about their health benefits or recommended screenings.

Because TCPA is among the most litigated private right of action, companies face “tens of millions in liability exposure” under the law, according to Arpan A. Sura, an attorney at Hogan Lovells who represents AAHAM.

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“Any lack of certainty for businesses operating in this space is going to have an effect on what they are going to do in terms of outreach,” he told FierceHealthcare.

The petition (PDF), filed by Anthem, Blue Cross Blue Shield Association, Well Care Health Plans and AAHAM in July 2016, requests two clarifications to FCC’s 2015 Omnibus TCPA Order, which allows HIPAA-covered entities to communicate with patients that give their phone number to a healthcare provider.

But the petitioners believe that language is too prescriptive and have asked the FCC to tweak the order to allow a phone number given to any HIPAA-covered entity or business associate to constitute prior consent to make non-marketing calls. Additionally, although the 2015 order allows organizations to make “healthcare calls,” the group wants that definition to align with HIPAA to specify “treatment, payment, and operation.”

The change would give organizations the legal platform to collaborate with one another on patient outreach. Increasingly, insurers and other healthcare organizations are using text message reminders to offer reminders for prescription refills or appointments and provide post-discharge Research shows such reminders can improve medication adherence and care coordination.

The petition has been languishing for more than two years thanks to a legal challenge of the rule that was resolved by a D.C. circuit court in March.  Now that the legal dispute is resolved, FCC is free to grant the petition.

“Acting quickly to grant the Joint Petition would promote a critical public policy goal of providing effective and efficient medical care, especially to at-risk populations, and it would support the Commission’s longstanding policy of harmonizing HIPAA and the TCPA,” Sura wrote in a letter (PDF) to FCC Secretary Marlene Dortch last week.

RELATED: Outcome Health pays $2.9M to resolve class-action lawsuit over unwanted texts to patients

Sura says the FCC hasn’t provided an official reason that it hasn’t acted on the petition, but notes that lawmakers on both sides of the aisle have expressed support for the clarification. He says the impact of the change extends well beyond insurers and allows healthcare organizations across the “HIPAA ecosystem” to communicate with patients to improve outcomes and reduce costs.

“It is a relatively narrow fix that has important consequences for patients,” he said. “The clarity that the FCC will provide by granting the petition would allow businesses to make this type of ordinary outreach that patients expect.”

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