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Our Reaction to the Two New TCPA Rulings from the FCC

This past Thursday, June 25, 2020, was a busy day for the Federal Communications Commission (FCC) and their oversight on the Telephone Consumer Protection Act of 1991 (TCPA). 

That law, and the FCC rules enforcing it, create the primary regulatory structure that guides how automated outreach via phone and text to cell phones lawfully happens in the US. As a result, mPulse is always monitoring FCC rulings, federal court cases, and Congressional actions that relate to how our customers can ensure they are always compliant with the TCPA. So, when the Commission issued two binding Declaratory Rulings relating to the TCPA last week, we knew it was important to examine what was (and wasn’t) changing as a result. Here is our breakdown of the two new rulings. (Note: I’m not a lawyer and this should not be taken as legal advice.) 

P2P Alliance Petition 

What it isThe FCC ruled on a 2018 request from the Peer 2 Peer (P2P) Alliance asking for clarification on what constitutes an “auto-dialer” that calls or texts cell phones. This definition is key to determining if the TCPA applies to a technology platform.  

What happened: The Commission’s Consumer and Government Affairs Bureau (CGB) made two key rulings. First, they clarified that an auto-dialer must store or generate random or sequential phone numbers and call them without human intervention. They specifically clarified that a technology platform where a human had to manually enter each number prior to calling or texting would not be subject to the TCPA, no matter how fast they would be able to call or text. Second, the FCC reiterated a long-standing view that, even when using an auto-dialer subject to the TCPA, calls and texts made to cell phones with the consumer’s prior express consent are permitted. They also took a moment in the ruling to note, “The Commission has repeatedly made clear that persons who knowingly release their telephone numbers for a particular purpose have in effect given their invitation or permission to be called at the number which they have given for that purpose, absent instructions to the contrary.” They finished by saying that if P2P was an auto-dialer, but was only calling or texting consumers who had provided their cell phone numbers to the calling parties, those calls/texts would be permissible because they were made with prior express consent. 

What it means: Because of our scale and the crucial nature of the calls and texts (among other channels) our platform powers for our healthcare customers, mPulse has always operated under the assumption we fall under the TCPA, even as the definition of an auto-dialer has been debated in federal courts. So, our operations won’t change due to any update to that definition. The reiteration that providing a mobile phone number constitutes prior express consent, absent instructions to the contrary, is a good and clear reinforcement of the FCC’s view of how consumers can opt into non-marketing text and phone outreach.   

Text of ruling:  

Anthem Petition 

 What is it: The CGB also ruled on a 2015 request from Anthem that was asking for an expansion of the exemptions for healthcare messaging under the TCPA. Specifically, Anthem asked for the FCC to rule that calls and texts from Anthem (and plans or providers in general) that concern healthcare should not need to have prior express consent as long as consumers have an easy opportunity to opt out. The existence of a prior established relationship between the plan and members is enough, in their argument, to start that outreach. Second, they asked that broader healthcare calls/texts should be exempt from the TCPA entirely because they are welcomed by consumers and represent urgent healthcare concerns. Specifically, Anthem listed calls/texts on subjects like preventive medicine outreach, case management, to “educate members about available services and benefits,” and the use and maintenance of benefits.   

What happened: The Commission declined to grant Anthem’s requests. They emphasized that consent must be obtained prior to starting outreach regardless of an existing relationship, but noted that healthcare callers should have little problem obtaining that consent. The FCC also disagreed with a few of the Anthem petition’s arguments for making a content-based exception to the TCPA for non-emergency healthcare calls and texts.  

What it means: The FCC’s ruling is positive in a number of ways. This was the first time that the FCC directly addressed calls and texts that health plans typically send their members. The FCC’s treatment of Anthem as a healthcare entity – consistent with their definition of a “healthcare provider” as a HIPAA-covered entity and/or their business associates as those terms are defined under HIPAA – helps health plans get clarity that the TCPA protections for healthcare calls and texts – which require prior express consent instead of the prior express written consent that general marketing calls require – apply to their health-related messaging as well as those from hospitals or doctors’ offices. Ultimately the FCC’s move to look at health plan calls and texts and determine that no change was needed gives us confidence in the compliance procedures we have helped our plan customers follow for over a decade.

Text of ruling:

The Importance of Tailored Telehealth Engagement for Low-Income Populations

Throughout the COVID-19 pandemic, mPulse and our customers have placed a major focus on delivering programs geared toward vulnerable, hard-to-reach and culturally diverse populations. We have been encouraged by the results so far. Early analysis of 2,500,000 messages across multiple mPulse customers sent to approximately 319,000 Medicaid plan members in Cook County, Illinois (primarily the greater Chicago area), showed individuals who had greater SDOH barriers were actually more likely to engage with our COVID-19 programs than those with lower SDOH barriers. There are several factors that contributed to this reversal in normal engagement levels. Lower income populations were disproportionally infected with COVID-19 cases, which created urgency for engaging with COVID-19 content. Outreach that provided information about free resources and subsidies were most valuable to members who were more adversely impacted by SDOH. And lastly, content was tailored to culturally diverse populations. Program content was developed in multiple languages, and our customers leveraged our mobile-optimized fotonovela outreach. Every healthcare organization understands the importance of engaging hard-to-reach populations, and as we look to the ‘new normal’ post-COVID, there are important learnings from this period that should be a part of every engagement strategy.

One of the more prominent aspects of the new normal will be the accelerated and important role of telehealth in care delivery. The pandemic has forced rapid adoption by providers, plans, and patients. This is a positive step for many reasons: more cost-efficient delivery of care, and much improved access and convenience for healthcare consumers.  However, low income populations have some of the lowest levels of adoption of telehealth services, so as healthcare adapts and new innovative care deliver approaches are developed, we must ensure the hard-to-reach are included in the shift to virtual care, and apply proven strategies for engaging these populations on topics that are important to their health.

Telehealth has been sold as an equalizer for disadvantaged and rural communities, but there are challenges with this. Safety net providers have been slower to adopt telehealth in comparison to larger health systems. Rural and community health clinics lack the funding to keep abreast with the latest technology, but also manage populations who lack internet coverage and/or are at poverty levels that prevent them from accessing the technology needed to connect virtually. 2019 data suggests only 50% of low-income households have home broadband, and over 30% of these households are smartphone-reliant for internet.

The low adoption of stable home internet and desktop/laptop computers in these populations means government-subsidized mobile phone programs must include smartphones with capabilities to support virtual visits. The data needed to support these visits must be included in the phone’s data plan, so patients are forced to decide whether to use their own mobile plan data to have a health consultation or connect with their friends through social media. And the telehealth platform itself must be a high-quality experience comparable to leading healthcare providers for any chance of success.

But providing the technology is not enough. As with almost all health services and benefits, awareness and education are critical for lasting adoption. Health plans and providers must invest in telehealth engagement, so that their members and patients know the service exists, how and when to access it, and provide support so they become fluent with the technology. All these potential barriers are accentuated with lower-income and culturally-diverse populations. But those populations must be areas of significant investment in engagement and education, if there is any chance of healthy equity in the new normal.

Key Takeaways from Last Week’s Webinar on Improving Member Engagement

The Strategic Solution Network hosted mPulse Mobile and Martin’s Point Healthcare to discuss Improving Member Communication on Tuesday June 9, 2020 as part of the 11th Medicare Stars, HEDIS, Quality and Risk virtual event. Josh Edwards, Stars Program Manager at MartinPoint Healthcare, discussed best practices, while mPulse’s Solution Marketing Manager Jim Burke covered how data can change the conversation with the senior population and transform member engagementHere are our biggest learnings from the event: 

1. Meet Seniors Where They Are 

Jim talked about how 90% of seniors who have phones (which is also around 90%) text regularly, while only 22% of that same audience are looking for new apps. App adoption and use among seniors is also declining slightly, according to the AARP. Member communication is difficult, so plans should not make it harder by asking members to engage in channels that they don’t normally use. mPulse has found mobile channels, especially conversational SMS, to be the best way to reach the Medicare population at scale. These members, when compared to other groups that mPulse engages, truly embrace the channel: they tend to prefer longer multi-turn conversations, view follow-up reminders as caring rather than annoying, and use emojis at a higher rate than any other age group.  

2. Let the Data Drive  

Getting a clear view of your population through data was a major theme for both presentations. Leveraging data from outreach itself gives you the tools to drive behavioral actionable outcomes. Jim noted that when outreach is conversational, the information flows two ways: the member is connected to resources and servicesand the plan gains insights on member experience and barriers stopping members from taking key actions. Those insights can be difficult to gather without automated conversations and are some of the most actionable available to quality improvement teams. 

3. Reimagine the Communication Cycle  

Josh talked about the way rethinking the communication cycle can ease processes and improve engagement in the long term. He referenced his favorite process from what he calls the Pink Book” or Making Healthcare Communication Programs Work from the National Cancer Institute ( )  as a great tool that has helped him and his teamPutting a process in place, whether from the pink book” or elsewhere, keeps quality teams thinking strategically about member communication. 

It is equally important to make sure vendors are on the same page with any communication strategy. The last thing your organization wants to do is muddle the message you are trying to send members because your vendors have a different idea of what the message is or was in the first place. Josh emphasized the need to coordinate across partners and include them in the big picture of your communication process. 

4. SDOand Your Audience  

Both Jim and Josh emphasized the importance of putting your members in context. Who are you trying to reach and what type of barriers do they face to complete a key screening or refill a prescription? Uncovering barriers and tailoring content to fit your members’ challenges should be a core part of any quality improvement and member engagement strategy. SDOH effects all aspects of healthcare, including member communicationJim showed how mPulse is using SDOH Indexing before starting outreach to identify likely impact of SDOH factors on engagement. This helps adapt strategies to fit the population and anticipate engagement challenges earlier. 

5. Language Matters  

It may seem like a basic reminder, but many plans still struggle to meet member preferences around language. The very first question from the audience was about serving populations that need outreach in more than just English. Josh from Martin’s Point said the ability for outreach vendors to switch between languages is keyJim agreed that any automated system must be able to capture the preferred language both prior to sending out any communication and as members identify a preference during outreach. He also noted that content should be created within the native language when possible, as opposed to a direct translation from English.