In April of 2022, the Secretary of Health and Human Services (“HHS”) asked the Federal Communications Commission (“FCC”) to clarify that automated calls and texts, or prerecorded telephone calls made to encourage individuals to renew enrollment in their state Medicaid program (“Medicaid”) Children’s Health Insurance Program (“CHIP”), Basic Health Program (“BHP”) or Health Insurance Marketplace (“Marketplace”) are permissible under the Telephone Consumer Protection Act of 1991 (“TCPA”). That statute restricts the use of such automated technologies or prerecorded calls without prior consent of the called party.
On January 23, 2023, the FCC released a responsive Declaratory Ruling confirming that “federal and state governmental agencies working in conjunction with local governments, governmental contractors, and managed health care entities acting under contract with state governments may, under certain circumstances, make autodialed and prerecorded or artificial voice calls or send autodialed text messages to raise awareness of the eligibility and enrollment requirements for these governmental health care programs without violating” the TCPA (https://www.fcc.gov/document/fcc-provides-guidance-enable-critical-health-care-coverage-calls).
The FCC ruled that “enrollees’ provision of a telephone number on an application to for coverage” under such government health care programs “constitutes prior express consent to be contacted at that number regarding enrollment eligibility” and other reasons described by HHS “because the purpose of those calls and texts is closely related to the purpose for which the enrollees provided their numbers.”
Thus, the consumer has given the requisite consent “to be called or texted at that number by local governments, governmental contractors, and managed care entities when acting under contract and pursuant to the authorization and direction of a federal or state agency with equipment covered by the TCPA regarding eligibility for and ongoing enrollment” in Medicaid, CHIP, BHP, and Marketplace programs.
Further, the Commission reiterated that when the enrollee is no longer at that number, or never provided it in the first place, “federal and state agencies may nevertheless use autodialers to call or send the text to reach” them, “despite the lack of prior express consent.” This is because when these agencies take the physical steps to make these calls or texts they are not “persons” under the TCPA. Therefore, under those circumstances, the statute does not apply to federal or state government employees acting in their official capacities (i.e., the conduct of official business). The Declaratory Ruling expressly states that “[informational calls made by federal or state government employees regarding enrollment and eligibility for governmental health care programs are ‘the conduct of official business.’”
However, contractors making calls on behalf of such governments, along with local government entities and their contractors, are “persons” for TCPA purposes, except in those cases where the federal or state government is “so involved in placing the call as to be deemed to have initiated it.” In this regard, in a previous 2020 decision, the FCC determined that where the governmental entity made all decisions regarding whether to make the call, the timing of the call, the call recipients and the content of the call, that governmental entity was the initiator of the call.
The FCC noted that HHS expects that “there will a wide variety of different calling campaigns involving third-party contractors that will vary from state to state.” Therefore, the FCC declined to “opine generally on the issue” of federal and state government involvement, noting that “this is a highly fact specific, case-by-case inquiry.” Therefore, those entities participating in calling campaigns who are “persons” potentially covered by the TCPA need to assess and understand the facts surrounding that involvement.
The Declaratory Ruling acknowledged that federal and state contractors making calls on behalf of governmental entities may also qualify in some cases for forms of derivative immunity under the existing body of law for such immunity.
Finally, the Declaratory Ruling discussed other options for contacting enrollees, where there is no prior express consent, that callers have “to communicate with those consumers without violating the TCPA.”