FCC Seeks Comment on HHS/CMS Request for Certainty About Communications Critical to Federal and State Health Insurance Programs Post-Pandemic

Reacting quickly to a joint request by the U.S. Department of Health and Human Services (HHS) and the Centers for Medicare & Medicaid Services (CMS) (collectively, the Health Agencies) last Thursday, the FCC released a Public Notice on May 3, 2022, inviting comments about how it should clarify “that certain automated calls and text messages or prerecorded voice calls relating to enrollment in state Medicaid and other governmental health coverage programs are permissible under the Telephone Consumer Protection Act (TCPA).” Recognizing the time-sensitive nature of the Health Agencies’ request, the FCC established a short cycle for public comment – comments are due in 14 days on May 17, 2022, and any reply comments are due on May 24, 2022.

The Health Agencies’ letter describes certain text messages and calls it anticipates would contain content that “encourage[s] . . . individuals to follow-up with their state Medicaid program, Children’s Health Insurance Program (CHIP), Basic Health Program (BHP), or Health Insurance Marketplace (Marketplace) regarding their health coverage enrollment.” The communications sought to be covered would arise when the government agencies seek to communicate with enrollees as to changed legal requirements and when enrollees need to know to take affirmative steps to confirm their continued program enrollment after the end of the COVID-19 public health emergency (PHE). The letter states that these particular calls and texts are critical and time-sensitive to public health purposes because they could prevent the loss of healthcare coverage for many millions of Americans. The Health Agencies assert that relying solely on enrollee mailing addresses is unreliable and postal mail may not reach many enrollees. The window for necessary action is short: agencies may only have 60 days after the federal government announces the end of the PHE to communicate what enrollees must do to ensure they have continuing coverage.

For these reasons, the Health Agencies asked the FCC to confirm that the following groups of callers will be immune from TCPA liability from placing prerecorded calls or texts to cellphones:

  1. state and federal government employees and their contractors operating within the instruction of the state or federal government;
  2. local government employees and contractors under delegated authority by a state government agency; and
  3. managed care entities, their parent companies that provide Medicaid, CHIP, BHP coverage, and their contractors under contract with a state agency.

The letter states the Health Agencies’ anticipation that “no more than 6 to 8 individual messages [or calls] will be sent to any individual enrollee” in three phases and the program would include in each message or call “information on how to opt out of” receiving future messages or calls. Each of the three phases is intended to remind enrollees to contact their program and update their contact information, to seek missing information for verifying eligibility when processing renewals, and to notify individuals who are no longer eligible for the program of certain time-limited actions they can take to enroll in another health coverage program. The Health Agencies plan to begin the messaging or calling campaigns “as soon as clarification is issued by the Commission” and estimate them to “end approximately 18 months after the end of the” PHE.

Without elaborating much on a TCPA legal analysis, the Health Agencies assert that these described calls and messages are permissible under the TCPA because individuals who applied for coverage had provided prior express consent to be contacted by the program regarding eligibility for and enrollment in coverage, although “the application form may not state explicitly that the individual may receive automated text messages or pre-recorded phone calls.” The letter also states that because “the federal or state government is actually the maker of the call,” it is not required to obtain prior consent and their contractors could “qualify for forms of derivative immunity.” The Health Agencies did not explicitly invoke the emergency purpose exception to the TCPA’s consent requirements, although that presumably could also factor in any FCC decision on the request for clarification.

The FCC’s quick action seeking comment on this request suggests that it is on a fast track for FCC consideration. Any FCC guidance that follows could be significant for state and local governments and for government contractors preparing to engage in a range of communications by various governmental entities and parties that manage government benefit programs about the coverage consequences surrounding the end of the PHE. Interested parties should note the short deadlines and consider filing comments or reply comments to this proceeding in the FCC docket 02-278.