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Navigating New TCPA Regulations: A Guide for Healthcare Communications

In the ever-evolving landscape of healthcare communications, staying compliant with regulatory changes is paramount. One such significant transformation occurred on July 20, 2023, when new requirements under the Telephone Consumer Protection Act (TCPA) came into effect. These changes directly impact how healthcare organizations engage with their patients and members, including significant implications for HIPAA-related calls. Understanding the intricacies of these regulations is essential to avoid hefty fines and legal complications.

At mPulse, we recognize the challenges and complexities that healthcare organizations face, which were previously mostly exempted. With our expertise and innovative solutions, we are well-positioned to help healthcare organizations navigate these changes seamlessly and ensure they remain compliant, safeguarding both their reputation and financial well-being. 

In this blog post, we’ll explore the key aspects of the TCPA changes that took effect on July 20, 2023, and shed light on how mPulse can assist healthcare organizations meet these regulatory demands through our digital health solutions, especially as they relate to HIPAA-related communications.

Three notable impacts of the Telephone Consumer Protection Act on healthcare pre-recorded voice calls

  1. The TCPA now sets a call limitation on healthcare-related calls without prior express consent, allowing for one artificial or pre-recorded call per day and up to three artificial or pre-recorded calls per week. This is a significant change, as there was previously no limit on calls without prior consent. However, even with these TCPA changes in effect, if recipients have willingly provided their prior express consent—often obtained through providing a telephone number or completing a registration process—there is still no limit to the number of calls that can be made.

mPulse solutions are thoughtfully designed to make an impact with the fewest touch points possible, well within the call limits, to comply with the TCPA changes when there is no prior express consent. With consent, we can also offer configurations involving multiple solutions that may need more touchpoints, enabling healthcare organizations to achieve their communication goals. 

2. The callers* must provide the following to help recipients opt out of the artificial or pre-recorded healthcare-related call:

  • State the identity of the entity*
  • State the entity’s phone number* that allows the recipient to make a do-not-call request during regular business hours. 
  • The message must include an automated, interactive voice and/or key press-activated opt-out mechanism within two seconds of the identification message. 
  • Brief instructions on how to use the mechanism.
  • If the recipient elects to opt-out, the mechanism must record the recipient’s number to the do-not-call list and immediately terminate the call. 
  • If the call is left on an answering machine or a voice mail service, the automated message must leave a toll-free number that leads the recipient to the opt-out mechanism above. 

mPulse diligently adheres to these requirements in our IVR scripting, ensuring that all information is provided, including contact information and instructions for opting out using our key-press-activated mechanism. Moreover, our technology enables the management of do-not-call information at an account level for do-not-call requests made directly to mPulse.**

3. Ensure that the entity* making the healthcare-related calls has a do-not-call policy. The do-not-call policy must be in writing, and the personnel must be trained on do-not-call practices. As for the specifics, consumer do-not-call requests must be honored within 30 days of receipt. The party seeking to be placed on the do-not-call list must provide their name (or their entity’s name) and number(s) for inclusion on the do-not-call list. Furthermore, companies must maintain records of do-not-call requests for five years.

It’s important to note that while mPulse offers a robust platform for managing these communications, the responsibility for creating a written policy and training personnel on the do-not-call list primarily lies with the healthcare organization. We understand our partners’ needs and procedures may vary, and we aim to provide the necessary tools and support to facilitate compliance. With mPulse software, we ensure that do-not-call requests are promptly recorded and retained for five years, which is vital to regulatory adherence. However, it remains our partners’ duty to maintain a holistic list that captures all do-not-call requests – especially ones made directly to their call center.

Navigating the complexities of TCPA regulations can be daunting, but with mPulse, healthcare organizations can find a reliable partner to help them navigate these intricacies seamlessly. We understand the nuances of TCPA and are well-equipped to guide healthcare organizations toward compliance while ensuring that their digital engagement remains robust and effective. Moreover, mPulse offers diverse health communication solutions, including text messaging, email, and mobile web, providing healthcare organizations with a comprehensive toolkit to engage consumers and achieve the best possible outcomes. With our expertise and multifaceted approach, we are here to support healthcare organizations in delivering top-notch services while adhering to regulatory standards.

Please visit the Code of Federal Regulations website to learn more about TCPA changes.

*Refers to healthcare organizations mPulse partners with

**mPulse is not liable for a complete do-not-call list as the healthcare organizations we partner with may have multiple lists from historical vendors, direct requests from members, or other various do-not-call requests in the healthcare organization’s database. To comply with TCPA, it’s imperative that the healthcare organization manages and owns the holistic do-not-call list with or without mPulse technology and that the correct list is sent to mPulse prior to the launch of the solution.

Medicaid Redetermination: 180 Days After the Return to Regular Operations

Three years after the start of the COVID-19 pandemic and after over two years of continuous Medicaid enrollment, we finally saw the return to normal operations in April 2023 as the national public health emergency (PHE) was officially decoupled from Redetermination.

Now, almost 180 days out from the start of the unwinding process, it’s time to look back at how states have handled this massive undertaking, how Medicaid beneficiaries have fared, and the strategies of those plans who have been successful with the redetermination process these last six months.

The 2023 Medicaid Redetermination Process So Far

Having been in Phase 1 of the unwinding process (outreaching to members for updated contact information) for the majority of 2022 and into 2023, the market finally saw a shift into phase 2 in April 2023 when states officially began the process of redetermining eligibility for millions of members

Sourced from KFF.org. Of all people who were disenrolled, 73% were terminated for procedural reasons, as of October 2, 2023.

While it’s true that it was expected many people would lose their coverage, we are unfortunately seeing large numbers of people losing coverage for procedural reasons rather than due to a lack of eligibility. Recent data from the KFF Medicaid Enrollment and Unwinding Tracker shows that of the over 7 million people who have lost their Medicaid coverage since the start of the unwinding, 73% of those fall into this bucket of people losing coverage not as a result of merit or financial requirements but rather on a lack of replies, incomplete information, and the like. 

In light of this, Congress has paused the redetermination efforts of 30 states due to their exceedingly high numbers of procedural disenrollments. Nearly half a million individuals will be reinstated after CMS found some states processing eligibility checks at the family level thus leaving out children who have lower or fewer requirements for coverage.

These 30 states have had to return to Phase 1 and 2 efforts to reach out to individuals to update their contact information and process their eligibility. Some are taking action to re-enroll everyone they presume might no longer be eligible, while others are asking their members to re-enroll based on their initial enrollment month. 

An All Hands On Deck Approach 

There’s been no shortage of assistance from state and federal organizations providing guidance and resources on approaches to drive the redetermination process and encourage people to re-enroll and maintain as much coverage as possible.

Furthermore, to reduce some of those procedural issues, health plans are now also allowed to help individuals fill out enrollment forms, which we hope will drastically reduce the amount of procedural disenrollments.

Another game-changing move was a declaratory ruling by the FCC earlier this year that health plans can now leverage SMS texting and IVR calls to conduct outreach and support continuation of coverage efforts.

This brings us to a discussion around digital strategies and asking the question, will doing the same thing deliver different results? If states are encountering issues around procedural disenrollment, what other approaches can they adopt? 

Digital Strategies to Tackle Medicaid Redetermination 

If traditional outreach methods haven’t been as effective as we hope in some states, it only makes sense to consider alternate strategies when it comes to member outreach. One channel we have seen work very successfully in redetermination efforts is SMS texting. A widely adopted channel, it can produce engagement rates of up to 60% for the most valuable and tailored programs sent to engaged populations.

To employ the SMS channel in your redetermination efforts, there are four best practices to consider.

Deliver Outreach Aligned to Language Preferences

Be sure the messages you are sending are personalized and relevant to the member. Reaching your Limited English Proficient (LEP) members can be difficult, especially when you don’t know who they are or what their preferred language is. Even if you are using pre-approved language for your redetermination outreach, an easy action to implement when leveraging a text channel is to ensure you align your messaging to the language preferences of your members. For example, mPulse technology allows for you to go beyond typical language challenges or compliance required taglines by automatically transitioning between English and Spanish in our two-way SMS conversations.

Include Educational Content to Address Health Literacy Gaps

Streaming health empowers behavior change and overcomes member barriers in 60 seconds or less.

Use captivating and engaging content in these outreach programs that educate individuals on why they should reapply. While creating awareness is the first step, educating members on why it’s important to reapply in an effort to maintain their coverage is vital. Think about it: if you don’t understand the benefits of Medicaid and how it contributes to your long-term health, why would you spend the time and energy filling in forms to prove your eligibility? Providing members with educational tools designed to build knowledge and confidence will increase the likelihood that they’ll take action.

Incorporate Behavioral Science Strategies into Messaging

Behavioral science has become a crucial component of health engagement programs and has been proven to directly impact health outcomes. Loss aversion, a cognitive bias that describes why the pain of losing is psychologically twice as powerful as the pleasure of gaining, or social proof, the phenomenon where we look around us for clues on how to behave, are examples of behavioral science strategies you can incorporate into messaging to foster greater trust, dispel concerns and increase the likelihood that your hard-to-reach members will engage and respond to outreach materials. This will help create a need for members to act.

Use Conversation AI Outreach to Identify Barriers

Leverage conversational AI and two-way texting to uncover barriers and encourage action. These AI powered, bidirectional texts allow automated, tailored responses to address individual barriers. If members reply to the texts, conversational AI uses natural language understanding (NLU) to “listen” for known barriers and other expected replies and provide relevant, automated responses to create logical conversation flows to address these barriers. This is also an opportunity to build health literacy and raise awareness about the need to maintain coverage. You can imagine how helpful these kind of capabilitiies are when trying to determine barriers to reapplying for coverage and encouraging action among your members. 

An Activation Solution 

While organizations may feel hampered by the requirement to use pre-approved state language, there’s no reason you can’t use it as an interim solution or in tandem with additional, tailored outreach. 

This is exactly the approach that one health plan adopted in preparation for the unwinding. Their goal was to activate Medicaid members with high-impact messaging and content to educate, set intent, and reduce the perceived effort of completing the redetermination process.

They achieved this by utilizing automated two-way programming to uncover and address member barriers, integrating fotonovelas, in multiple languages, into the outreach messaging. They delivered relatable stories to members that leveraged the endowment effect and loss aversion to build intent to keep coverage, and they used natural language understanding (NLU) to uncover and address common barriers and address members’ issues at scale. 

As a result, 33% of targeted members engaged with the program and by leveraging NLU, 18% of targeted members responded to the program which uncovered and addressed common barriers.

So, what does this prove? SMS is an effective channel for member outreach. It allows for delivering messages via a high-reach, high-touch channel and gives people something they can either act on in the moment or return to after the fact.

In the example above, the outreach was delivered in both English and Spanish, and made all the difference in overcoming barriers to action. Considering the best practices for member outreach that we mentioned earlier, it’s clear that addressing people in their own language, at the right time, on the right channel is key. 

Looking Ahead to Better Health Coverage 

While procedural disenrollment is a concern, several systemic issues have been identified, and the administration is taking steps to address them to keep people connected to care. Better processes and partnerships are expected to come into play, enabling easier approvals and ways to share data between states and health plans.

This includes partnering with managed care organizations, community health workers, walk-in centers, and more to raise awareness and assist enrollees in completing and submitting their renewal forms, even over the phone.

And while state-based content and language is a great starting point for communication, if you’re looking for ways to enhance your outreach efforts, start by considering what’s worked, what hasn’t worked, and where you can integrate these best practices to produce better outcomes.

How can you improve the content, add more languages, or add additional outreach modalities such as phone, email or SMS? Most importantly, how can you include streaming content and facilitate two-way conversations to overcome barriers and inspire your member populations to take action?

Not sure where to start? Reach out to learn more about the power of SMS and how you can establish a robust redetermination solution to reduce coverage loss and create high-value member touchpoints. 

The Importance of Annual Wellness Visits for Providers, Payers, & Patients

Why The Annual Wellness Visit is So Important

The Annual Wellness Visit (AWV) is an incredibly effective tool for consumer health management and is key to keeping people healthy now and in the future. This valuable time spent between provider and patient gives space to check in on progress, discuss health issues, and create a care plan–not to mention it allows for the opportunity to order conduct needed screenings and preventive care, making it an easy way to close multiple gaps in care at once.

Research has shown that establishing a stronger relationship between provider and patient can positively impact health. There are also multiple indirect benefits to plans, providers, and patients, such as reduced network leakage and education on proper ER and urgent care use.

Annual Well Visit Statistics: Underutilized, Underestimated

Unfortunately, AWVs are surprisingly underutilized. Only 25% of Medicare Advantage beneficiaries receive an AWV (even though 45% of all Medicare beneficiaries have four or more chronic conditions). Many hard-to-reach populations within Medicaid and Medicare are not taking the time to schedule and attend their AWV, and many patients do not understand the importance of this visit at all.

But it is important–to both the patient and healthcare organizations. Beyond the benefit of catching and controlling health issues, the AWV is a critical component of Hierarchical Condition Category (HCC) recapturing.

In fact, an 85% AWV completion rate can result in an 80% or higher HCC recapture rate. This can mean a significant power over reimbursement dollars for plans and providers.

Learn more about improving HCC Recapturing through cutting-edge engagement strategy by watching our on-demand webinar »

Example Scenario

Our 75-year-old male patient can have two different outcomes determined by his AWV. With proper coding of his full health status in the second scenario, you see a significant increase in reimbursement–over $5,000 annually for this one patient. If you multiply that by over 500 patients, you will see an increase of $2.5 million annually (or a loss if you neglect to code correctly).

But what happens if this patient never schedules his visit or if his visit isn’t coded correctly? You’re leaving good money on the table.

Patient Demographics HCC (Hierarchical Condition Category) Risk Adjustment Factor
75-Year-Old Male   0.428
E11.41 Type 2 Diabetes mellitus w/diabetic mono neuropathy HCC18 Diabetes w/chronic complications 0.625
Total RAF   1.053
Payment Per Month   $684.45
Payment Per Year   $8,213.4

Example scenario: If this patient never schedules his visit or if his visit isn’t coded correctly. Good money is left on the table.

Patient Demographics HCC (Hierarchical Condition Category) Risk Adjustment Factor
75-Year-Old Male   0.428
E11.41 Type 2 Diabetes mellitus w/diabetic mono neuropathy HCC18 Diabetes w/chronic complications 0.625
K50.00 Crohn’s disease of small intestine w/o complications HCC35 Inflammatory bowel disease 0.279
M05.60 Rheumatoid arthritis of unspecified site w/ involvement of other organs and systems HCC40 Rheumatoid arthritis and inflammatory connective tissue disease 0.423
Total RAF   1.755
Payment Per Month   $1,140.75
Payment Per Year   $13,689
Example scenario: With proper coding of this patient’s full health status, you see a significant increase in reimbursement.

Using Technology to Unleash the Power of Annual Wellness Visits

Suppose your goal is to increase the number of members or patients you have going in for their AWV and to recapture their HCC codes properly. In that case, it’s critical to have effective outreach to educate, motivate, and drive behavior change in those hardest to reach–a challenging but attainable goal.

Behavioral Science

One of the most important tools available to increase motivation and inspire behavior change is your approach to the conversation. With behavioral science, we take what we know about human behavior and tendencies and use that knowledge to not only predict the response to our outreach but to sway people toward one action or another.

When we reach out to members and patients regarding AWVs, saying, “Hi, Susie. You’re due for your no-cost annual wellness visit,” has a measurable impact on response.

In this message, we employ the Endowment Effect, a behavioral science principle that assigns higher value to objects and tasks when consumers feel a sense of ownership and personalization. By telling Susie it’s her no-cost visit, we are making it more likely she will take action.

AI Technology

Let’s go beyond the planned messages, though. Not everything can be scripted when you start a real conversation with a real person. With Conversational AI and Natural Language Understanding (NLU), plans and providers can communicate with patients in a personalized, conversational, and real way.

Instead of one-way interactions where the healthcare organization is talking at the patient, AI and NLU broaden out your abilities into a fully-fledged two-way conversation where the patient can freely respond the way they would naturally speak, and the system can understand and carry the conversation naturally in an almost human-like manner.

If a plan is reaching out to encourage an AWV and the member says, “I don’t have a doctor,” NLU can easily recognize that response and follow up with a list of in-network doctors near the patient.

Health Equity

This technology and ability for two-way interaction opens the experience to so many more possibilities–an important one being barrier analysis.

With the ability of NLU to interpret barriers to access (such as not having access to a doctor or not having transportation to the appointment) and uncover possible social determinants of health (SDoH), the healthcare organization gains more information about the circumstances of each individual.

With AI and NLU capabilities, the healthcare organization can respond accordingly with resources, education, and support to break down the barriers tied to inequity and provide a more accessible healthcare experience.

mPulse Mobile's two-way SMS technology identifies barriers and effortlessly guides patients to schedule their Annual Wellness Visit
Revolutionizing Patient Outreach: mPulse Mobile’s two-way SMS technology identifies barriers and effortlessly guides patients to schedule their Annual Wellness Visit. Transforming care, one text at a time.

Instructional Strategy

One barrier to health equity that we often encounter is the issue of health literacy. Many health consumers need help understanding what an AWV consists of, why it’s important, or how to find a doctor to obtain one. This is where education becomes an essential part of any outreach strategy.

The video below features Dr. Archelle Georgiou, a leading physician, healthcare executive, and author, explaining why annual wellness visits are critical to preventing chronic disease and keeping a person healthy.

Including this short three-minute video can answer many questions the patient may not know they have, raise their health literacy, and increase their motivation to schedule.

Putting it All Together

These individual strategies ultimately come together to form one highly effective solution aimed at increasing the number of members and patients who schedule and attend their AWV.

mPulse Mobile’s Annual Wellness Visit solution incorporates these and can effectively drive behavior change, even among unengaged and hard-to-reach populations. With AI technology to uncover and address barriers, an omnichannel outreach method to ensure you’re reaching every member possible (no matter how hard to reach), and both behavioral science and streaming health content to inspire self-efficacy and build knowledge, healthcare organizations deploying this solution have seen up to a 61% visit rate for targeted members living near in-network clients.

mPulse Mobile's optimized patient journey ensures a seamless, informed, and empowered healthcare experience
Experience the Transformation: mPulse Mobile’s optimized patient journey ensures a seamless, informed, and empowered healthcare experience. Every step, reimagined for you.

And though this can have an impressive impact on the bottom line of healthcare organizations, it also significantly and directly impacts people’s lives and health.

The ability to catch early signs of disease and the chance to educate someone about their health and lifestyle makes the AWV one of the more powerful tools in the healthcare industry’s arsenal–so let’s make sure we are using it to its full potential.

Join 200+ leading healthcare organizations leveraging our cutting-edge solutions to improve Annual Well Visits attendance and ensure optimal health engagement through our digital health solutions. Explore how mPulse Mobile can transform AWV experiences, drive behavior change, and elevate health outcomes for your members.

The Return to Normal: Medicaid Redetermination Edition

By the time the end of March rolls around, we will have seen just over 1,100 days of continuous Medicaid and CHIP enrollment. Federal guidance within the 2023 Consolidated Appropriations Act effectively decoupled continuous enrollment provisions from the Public Health Emergency (PHE) and will allow states to resume their redetermination process as soon as April 1st. 

Most states and many plans have already completed the first phase of the unwinding by encouraging enrollees to update their contact information to ensure they receive their renewal paperwork when it arrives in the mail. And while most all of us reading this piece are well aware of where we’ve been over the last year and what the next one might look like, a recent Urban Institute study in December 2022 found 6 in 10 adults in Medicaid-enrolled families were not aware of an upcoming return to the regular Medicaid renewal process.

You’re probably thinking, “How is this possible? It’s all we’ve been talking about and planning for months and months!” Well, maybe we shouldn’t be so surprised. Medicaid/CHIP enrollment increased by 20 million individuals since February 2020 accounting for nearly 30% of all covered lives. That’s 20 million individuals who likely have never completed a traditional or pre-pandemic redetermination and three years since the last time everyone else has. Lest we forget a lot has changed and occurred over the last three years in general.

Stats and surprises aside, we still have a long road ahead of us and a lot of work to do. Thankfully our regulatory friends like CMS and the FCC have stepped up to help keep individuals from slipping through the cracks. CMS has provided a strategic toolkit calling for states and plans to work together in timely sharing of enrollment data and contact information, for states to expedite content approvals or provide pre-approved language for member outreach, and for enhanced processes for moving individuals who no longer qualify for state-based programs to marketplace offerings. The FCC’s recent declaratory ruling that clearly states the provision of a phone number on an enrollment form constitutes as express consent allowing federal and state agencies and their partners to make Medicaid enrollment calls and send text messages without violating call or text prohibitions. Plans should take full advantage of the resources provided to them by incorporating each toolkit and clarified regulation into their overall member engagement strategy.

Learn more about outreach strategies for the end of continuous enrollment by viewing our redetermination webinar series featuring Kaiser Permanente and Mostly Medicaid »

Key Engagement Factors for the Return of Redetermination

Now let’s talk engagement strategy. Most plans will be using CMS or state-approved content and timelines are tight, so there may not be as much room for the creativity we see when dealing with other engagement topics like closing gaps in care or encouraging timely rx refills. That doesn’t mean, however, that you can’t still take a strategic approach in areas where you can still have an impact, such as channels, personalization, and branding. 

Channels: We know one single communication channel isn’t going to be enough, and it’s just not how people are consuming information or connecting to resources. Adult Medicaid beneficiary smartphone or tablet ownership rates are similar to the general US adult population, and 47.4% of dually eligible Medicare beneficiaries report using the internet to get information. An effective and successful engagement strategy is delivered through multiple channels by combining digital outreach like SMS and email with traditional modes of communication like mail and phone calls. mPulse is currently working with over 30 Managed Care Organizations across more than 20 states within different phases of their redetermination efforts to support engagement on all channels and channel combinations.

Personalization: After selecting your channels, be sure the messages you are sending are personalized and relevant to the member. Even if you are using pre-approved language for your redetermination outreach, make sure your salutation and any other merged fields are in the proper case and not all caps. Even an Excel novice can easily convert cells in all caps to proper case by applying a =PROPER formula to your selected cells. Proper case is easy, but what about language preferences? Reaching your Limited English Proficient (LEP) members can be difficult, especially when you don’t know who they are or what their preferred language is. For example, mPulse technology allows for you to go beyond typical language challenges or compliance required taglines by automatically transitioning between English and Spanish in our two-way SMS conversations.

Branding: Brand awareness and recognition leads to trust. You want your members to automatically know who all messages are coming from so they will not only trust it but also complete the desired request or action. Consider other communications that may be coming from your organization around the same time and coordinate your naming conventions to maximize brand awareness. Help get your brand on the right side of the inbox or in their known contacts by encouraging your members to store your phone number or SMS short code on their device or enhance those efforts by deploying mPulse Virtual Contact File (VCF) messages. 

The New Normal for Medicaid

The return to normal, or rather the return to the new normal is here, and there is no slowing it down. This is still uncharted territory with a lot of work yet to be done, but if we have learned one thing here today, it is that working together, maximizing resources, and leveraging technology to provide a personalized member experience will be the key to successful redetermination efforts.

For more insights into how to deliver this experience to your medicaid population, view our on-demand webinar series for Redetermination.

What Plans Need to Know About DHCS Latest Release of Guiding Principles

In March 2022, DHCS released key guiding principles and considerations Medi-Cal plans will need to consider when designing programs for their Medicaid members, specifically youth and families. With 1 in 3 Californians insured under Medi-Cal, and over 13 million members at stake, these principles will become key focus areas for plans in 2023 and beyond.

The Challenge

To set the stage, in 2019–20, Medi-Cal brought in more than $65 billion in federal funds and accounted for nearly 16% of all state general fund spending. People with disabilities comprise 9% of Medi-Cal enrollees, and account for 31% of total spending. Children account for 17% of enrollees, but only 6% of the total spend.

And quality measures haven’t seen much improvement, with more than half of the measures staying the same or declining from 2009 to 2018. In summary, quality of care has declined on four measures, and hasn’t improved on 12 measures. What’s worse, three of the four measures that did decline were related to the care of children covered under Medi-Cal. Six of the nine measures related to children declined or stayed the same, with only three measures seeing improvement. The decline in quality prompted state-wide action, which led to DHCS creating 8 guiding principles to improve health outcomes at scale.

This article will look at three of the eight principles and provide plans with insights and opportunities to apply DHCS strategy in supporting families and children covered by Medi-Cal while enhancing health outcomes for the nation’s most vulnerable population.

Want to read about all 8 of the Guiding Principles and recommendations for implementing each one? Download our Medi-Cal Brief »

Strengthen the Coverage Base for California’s Children

  • Premiums will be reduced to zero to ensure accessibility for all Medi-Cal families.
  • Presumptive eligibility will expand to ensure families and children in need can receive care more quickly.

Opportunity

California has ensured a simplified enrollment and eligibility process for Medi-Cal, which has enabled the state to rank among the top third in the county in its child health coverage rates. California reduced the uninsured rate for Latino children to less than half the national average. Unfortunately, progress has declined in recent years, and the uninsured rate is beginning to gradually increase. With zero-dollar premiums and presumptive eligibility, plans will need to onboard and educate members about their benefits faster.

mPulse Improves Member Knowledge of Plan Benefits by 91%

Strategy: Deploy 2-way text messaging to gauge new members’ understanding of plan benefits and available resources, educate and improve utilization of plan benefits.

By using demographic datasets from our SDoH Index, we assessed and segmented the target population. Interactive polls, on-demand resources and open-ended questions were sent to members to continually gather insights while pointing them toward tailored resources.

Outcome: 91% of members found the text messages helped improve their understanding of the plan’s benefits and services. The number of members who reported they would visit the ER for a minor condition dropped from 11% to 4%. The engagement score, based on response and sentiment, was 2.5 times higher than the control group.

Fortify the Pediatric Preventive and Primary Care Foundation

  • A new population health management (PHM) strategy will be implemented to establish a checklist for plans to identify and serve children in need of care coordination.
  • New resources will be implemented in practice transformation for pediatric providers and primary care providers serving pregnant and youth members.
  • An educational outreach campaign will be deployed for EPSDT for members, providers, and MCPs.
  • Improve criteria and procedures used to determine when children receive behavioral health services, specialty mental health services, and substance use disorder treatment.
  • Expansion of preventive pediatric dental benefits.
  • Participate in CMS infant well-child visits learning collaborative for health care payment learning and action network state transformation collaborative (STC).
  • Continued support for the ACEs Aware Initiative and provider training grants.

Opportunity

Early Periodic Screening, Diagnostic, and Treatment (EPSDT) is the foundation for necessary adolescent care. Contract requirements in the upcoming Medi-Cal MCP procurement will create greater visibility and enforcement of EPSDT services under DHCS. Ensuring members receive education and information on the importance of these services is essential in building member self-efficacy.

mPulse Drives 66% Well-Child Visit Attendance

Strategy: Better manage children’s health outcomes by driving awareness of well-child visits, immunizations, and primary care visits via 2-way text messages.

Outcome: 66% of members attended at least one well-care visit. 83% of targeted members had their child vaccinated. 29% of members aged 18-21 successfully transitioned from a pediatrician to a primary care provider.

Get more outcomes and guiding principle recommendations by downloading the complete content »

Strengthen Access to Pediatric Vaccinations

  • Deploy COVID-19 pediatric vaccines to meet California’s “Vaccinate All 58” goals.
  • Develop a Vaccines for Children (VFC) plan with CDPH to increase vaccinations and increase vaccine education.
  • Increase vaccination rate of pregnant Medi-Cal members.

Opportunity

The United States saw a country-wide decline in vaccination rates throughout the pandemic with a 40% reduction in childhood vaccination rates in April 2020. California saw a vaccination rate of 35% in children for 2020. To prioritize increasing the Medi-Cal vaccination rate, more work will be required by plans in developing programs and initiatives that support vaccine education and helping overcome vaccine hesitancy.

mPulse Uses Streaming Health Education to Increase Vaccine Readiness

Strategy: Build self-efficacy and increase vaccine readiness by providing visual storybooks and using behavioral science techniques to help overcome barriers and vaccine hesitancy. 2.6 million messages were sent, and 1.8 million dialogues were initiated in both English and Spanish translation.

Outcome: 18.9% of members replied to a message or clicked a link. 72% of members who interacted with our vaccine storybook were more likely to get vaccinated.

Why Plans Should Leverage Text Messaging Outreach

In 2019, more than 94% of California households had internet access, although significant gaps remain with families of color and lower incomes having less access than white households. With organizations like iFoster, the California Emerging Technology Fund (CETF), and California LifeLine working to provide internet access and cell phones to those who need it most, cell phone and internet access will only continue to increase.

Compliance Considerations

When it comes to healthcare, communicating with members through text messaging can be somewhat daunting. mPulse Mobile is HITRIST, HIPAA, and TCPA-compliant and has deployed programs with leading Medi-Cal plans while ensuring compliance and member privacy is top of mind.

The TCPA healthcare exemption enables health organizations to deliver messages without prior express consent, as long as they abide by the following rules:

  • Must be HIPAA compliant, and not promotional or soliciting.
  • Messages can only be sent to the phone number provides and must state the name and contact information of the sender.
  • Voice messages must be under 1 minute, and text massages less than 160 characters.
  • Messaging frequency needs to be less than once per day, and no more than three times per week.
  • Messages must offer an opt-out and opt-outs must be honored accordingly.

As a company 100% focused on health engagement, security and compliance are mPulse Mobile’s highest priority, and all our solutions are designed with compliance as the foundation.

Conclusion

To improve quality measures and enhance outcomes for Medi-Cal youth and families, DHCS will be enforcing these policies and principles alongside Medi-Cal plans to increase utilization of new resources and services. mPulse Mobile’s suite of solutions are designed to drive engagement and increase utilization of plan benefits. Our frictionless engagement methods are proven to empower health literacy and self-efficacy. By partnering with us, plans can proactively implement DHCS principles into their enterprise strategy to deliver outcomes that matter most: healthier communities and greater quality of care for California’s most vulnerable members.

D-SNP Spotlight, Part 2: Engagement Opportunities within the 2023 Ruling

The CY 2023 Medicare Advantage and Part D Final Rule places a magnifying glass on vulnerable D-SNP members with additional regulations that will require plans to integrate services, adopt new products designed to deepen engagement, drive growth and retention, and inspire meaningful behavior change. Plans must consider these new guidelines when designing their D-SNP engagement programs. Visit Part 1, D-SNP Spotlight: Engagement Opportunities within the 2023 Ruling, to read a summary of the ruling and related changes to D-SNP regulations.

Why D-SNP? 

D-SNP members offer plans a unique engagement challenge, particularly due to their hard-to-reach reputation and growth potential. There are roughly 4 million D-SNP members nationwide, with 7 million additional individuals remaining eligible. This rapidly expanding population saw a growth increase of 52% since 2018, with an increase of 16.4% in 2021 alone. 

This fast-growing member population qualifies for both Medicaid and Medicare due to their complex needs and requirements. D-SNP members often have a disabling condition, suffer from mental health disorders, receive care from multiple doctors for a variety of health conditions, and/or receive in-home care or other specialized health and social service care. D-SNP members also have access to additional benefits which often include dental care, discounted over-the-counter pharmaceuticals, hearing exams, annual eye exams, and no-cost transportation to health care visits.  

Despite their complex needs, D-SNP members open the door to several opportunities due to the requirements in place that enforce plan coordination and whole person care engagement models. Here are a few opportunities to consider.

Opportunities to Engage and Drive Outcomes  

Cut Through the Competition 

Creating meaningful relationships is the key to retaining members, and the stakes are high when it comes to D-SNP. To retain members, each individual needs to feel seen and addressed. Scaling communications across an entire population is no small feat, particularly when each member has their own unique needs and challenges. 

Personalized omnichannel messaging is essential to creating a valuable experience and allows for resources and services to be delivered on a case-by-case basis through each member’s preferred channel of communication. Conversational AI allows messaging to remain dynamic, while Natural Language Understanding (NLU) analyzes each response. mPulse Mobile uses a combination of industry, public and private data sets combined with plan data to create highly accurate predictions, and continually optimizes dialogs using conversational insights. By sending the right message at key moments, and providing resources and information each member needs most, we can begin building meaningful relationships that reduce churn. 

Break Down the Barriers 

Reaching and getting D-SNP members to engage is a great start, but instilling behavior change and self-efficacy to create action? Definitely a challenge – particularly when we consider the unique needs D-SNP members face. Members face a combination of mental health and physical health challenges, which can include ailments such as substance abuse and comorbidities. They often receive in-home care, reside in long-term care facilities, or have designated caregivers. These situations can create even more barriers to engaging and activating D-SNP members. Despite obstacles, providing relevant and critical care information and resources, particularly benefits they may not be aware they have access to, through their preferred communication channel is a great first step. But how do we create meaningful behavior change? 

We can begin building health literacy by providing powerful media experiences that include interactive and educational modalities. mPulse Mobile offers streaming health education across a variety of health topics. All content is designed by our team of production designers and learning strategists, with the goal to build skills that empower members to own their health and adopt healthier behaviors over time. Not only do we design for health literacy, we design for entertainment and boast a 71% member self-reported likelihood to take action after engaging with our streaming content.  

Drive Value Again and Again 

D-SNP members offer plans tons of flexibility. Because Medicare and Medicaid benefits are tied into a single member, premium dollars increase and open the door to curating much-needed exceptional member experiences. Allowing plan resources and benefits to reach, engage and educate this rapidly growing and vulnerable population is crucial. To attain and retain the market share, developing partnerships with organizations designed to drive repeated value is key. Understanding your member’s needs, using behavioral and learning science to engage and educate them, and driving action at key moments increases member retention, and delivers better health outcomes. 

How mPulse drove a 58% D-SNP Engagement Rate 

mPulse partnered with a national payer who serves over 17 million members nationwide, with D-SNP member eligibility available in 28 states.  

Goals 

The program focuses on welcoming new D-SNP members to the plan, with an emphasis on increasing awareness and utilization of available benefits and services. By providing a white glove experience, the plan aimed to increase retention of D-SNP members and create meaningful relationships with these members at scale. Additional goals included HRA completion. 

Execution 

Over the course of three weeks, more than 45,000 D-SNP members were enrolled into a 3-week SMS program. Each week promoted a different service offering, including healthy food card and over-the-counter pharmaceutical discounts, as well as assistance in finding a provider and ensuring members received their ID cards.  

Results 

SMS text messages saw a 99% delivery rate with 58% engagement. More than 30% of engagement included link clicks to related plan benefit offerings, which included over-the-counter pharmaceutical discount cards, healthy food cards, and provide finder links.

What’s next?  

By understanding how to reach members with complex needs, plans can cut through the competition and provide unrivaled experiences for D-SNP members. mPulse Mobile is the leader in Conversational AI solutions for the healthcare industry and operates to continually drive outcomes using tailored and engaging digital experiences. Our rich understanding of diverse populations enables our team of behavioral and learning scientists to curate highly tailored programs designed to impact the lives served by our 180+ client roster.

Longest. Unwinding. Ever. The Continuous Wind Down of Continuous Enrollment

912 days sit between the beginning of the Public Health Emergency (PHE) and today, July 26, 2022. The PHE has been renewed 10 times, with the latest extension set to expire on October 13, 2022. There has been no shortage of speculation around the last two extensions, especially after the Biden-Harris administration committed to providing states with at least a 60 day notice prior to its plans to terminate or allow the PHE to end.

In March of 2020, the Families First Coronavirus Response Act (FFCRA) was signed into law. This particular piece of legislation focused on many programs impacting children and families, including but not limited to Supplemental Nutritional Assistance Program (SNAP), the Women Infants and Children (WIC) program, family and medical leave, school lunch, emergency paid sick leave, and state based programs for Medicaid and Children’s Health Insurance Program (CHIP) eligibility and enrollment requirements. The latter of these provisions effectively froze Medicaid disenrollment during the PHE allowing for continuous coverage for current beneficiaries. Prior to the pandemic, states were required to reprocess eligibility for most of its enrollees on an annual basis, this process is referred to as redetermination.  

Medicaid and CHIP enrollments have increased by approximately 19% or 13.6 million enrollees between February 2020 and September 2021 with an additional 1.2 million enrollees added to the roster since the September report. To offset increased program spending coupled with decreased state tax revenue, the FFCRA authorized a 6.2 percentage point increase in the Federal Medical Assistance Program (FMAP) and in return expected continuous enrollment. This FMAP bump will continue through the end of the first quarter in which the PHE ends. 

When the End Comes…

Now that we’ve covered some of the basics, let’s look what it means for the plan when the PHE and continuous enrollment ends, and redetermination resumes for its beneficiaries. The end of continuous enrollment is expected to create the single largest health coverage transition since the first Marketplace Open Enrollment. Due to the high volume of unprocessed eligibility renewals and the increase in membership, states have been given a 12-month unwinding period to manage this administrative task. The Department of Health and Human Services (HHS) has issued an Unwinding Toolkit and CMS has encouraged states to only process 1/9 of its total caseload in a single month; processing more than this creates an increased risk of people falling through the cracks and being unnecessarily disenrolled resulting in a loss of coverage and potential increase of additional administrative work to bring them back in.  

Keep in mind each state will have its own pathway and plan to work through this transitional phase. For example, some states have indicated they will target enrollees who appear to no longer be eligible first and others plan to conduct renewals on a monthly basis based on the individual’s initial enrollment month and some states have also reported they plan to process the backlog as soon as 3-6 months with others using the full 12 plus months.  

Projections for total Medicaid and CHIP growth during the pandemic and scenarios calculating total loss of coverage continue to shift and grow with varying levels of certainty and range from 5 to 14 million enrollees losing coverage. Even at the lowest end of the loss projections, five million people is an awful lot! While some loss may not be preventable, complete, and total disruption can be avoidable for those who be eligible for coverage on a Marketplace (aka Affordable Care Act or ACA) plan. This shift to retention will be more bearable and less burdensome if American Rescue Plan Act (ARPA) subsidies continue for the estimated 13 million Marketplace enrollees currently receiving a premium reducing subsidy.  

Planning for the Unwinding of Continuous Enrollment

So, we’ve covered some basics on what it means for the plan (a lot of work ahead), what it means for the member (a lot of uncertainty still remains), and now about what it means to everyone in between which in this instance is us, mPulse and that’s where I start to get excited. There are phased approaches and best practices from our friends in California who have been given the green light to reach members in just about any way possible even allowing plans to solicit opt-in consent for future updates by text message to the East coast where communications to CoverVA enrollees in Virginia are being encouraged to update their contact information by signing up for email or text alerts and following via social media.  

I’m no math whiz, but this one is easy: X + 14 = Regular Redetermination Resumes 

With X being the unknown number of additional PHE extensions and 14 the number of total months allowed to manage the backlog at the end of the PHE you’ll find yourself back where you were before COVID-19 was a household name. Regardless of where you are in your own state’s phase approach, you can count on trusted partners like mPulse to engage the unengaged and reach the unreachable in your membership. Not sure where to start? Reach out to learn more about the power of SMS and find out how many of your contact numbers are mobile vs. land lines.

CMS 2023 Ruling’s Impact on D-SNP Populations, Part 1

The Centers for Medicare & Medicaid Services (CMS) released the Contract Year 2023 Medicare Advantage and Part D Final Rule. The ruling places a spotlight on the vulnerable D-SNP population, and places health plans in a challenging yet opportunistic position to engage these notoriously difficult-to-reach members.

2023 Ruling’s Impact on D-SNP at a Glance 

Enrollee Participation in Plan Governance 

MA organizations offering a D-SNP must establish at least one enrollee advisory committee in each state to solicit input from member experiences. The sample must include those enrolled in D-SNP and garner input from members regarding access to services, coordination of services and health equity. 

Opportunity: Feedback will help identify and address barriers to care, which will allow plans to further assess their series and processes to ensure a better member experience, while also collecting valuable data regarding their unique member population.

Standardizing Housing, Food Insecurity, and Transportation Questions of Health Risk Assessments (HRAs)

Initial and Annual assessments will be conducted to evaluate each member’s physical, psychosocial, and functional needs. HRAs must include one or more questions on housing stability, food security, and access to transportation.  

Opportunity: Visibility of member needs will enable plans to address the unique needs of each member, allowing better access and resource allocation of plan offerings and services.

Refining Definitions for Fully Integrated and Highly Integrated D-SNPS 

Beginning in 2025 and in years following, FIDE SNPs will have aligned enrollment and cover Medicare cost-sharing and Medicaid benefits for home health services, medical supplies, and behavioral health services between the state and the MCO, with the same legal entity as the FIDE SNP. Additionally, HIDE SNPs have service that overlaps the plan’s Medicaid managed care plan with the state. This rule will organize Medicaid long-term services while supporting Medicaid behavioral health services affiliated with FIDE SNPs and HIDE SNPs.  

Opportunity: Create better integration between FIDE SNPs and HIDE SNPs, whose definition and intricacies have previously lacked consistency.

Additional Opportunities for Integration Through State Medicaid Agency Contract

D-SNP contracts will be required through the state agency to provide benefits/ arrange a provision of benefits. New pathways will require aligned enrollment and establish contracts that only include one or more D-SNPs within a state and use integrated materials and notices for members. 

Opportunity: Members have clarity of their coverage and benefits. Star Ratings are assigned at the contract level, which means this rule provides greater transparency on D-SNP quality ratings and will allow CMS to identify disparities between beneficiaries and interventions. This will improve federal and state oversight and scale information sharing.

Attainment of the Maximum Out-Of-Pocket (MOOP) Limit

Plans must establish a limit on beneficiary cost-saving for Medicare Part A and B services after the plan pays 100% of the costs. Current guidance allows MA plans, including D-SNPs to not count Medicaid-paid amounts or unpaid amounts towards the MOOP limit, which results in increased state payments of Medicare cost-sharing and disadvantages providers serving D-SNP members. The MOOP limit within the plan will be calculated based on total cost sharing, regardless of whether it was paid by the beneficiary, Medicaid, secondary insurance, or left unpaid. 

Opportunity: More equitable payments for providers serving D-SNPs. This will result in increased bid costs, and increased Medicare spending, which will be offset by lower federal Medicaid spending. The net federal 10-year cost is estimated at $614.8 million. 

As plans heighten their attention and focus on D-SNP members with the new ruling in mind, several opportunities surface and a more robust engagement model that provides an exceptional experience becomes critical. Look out for Part 2, D-SNP Spotlight: Engagement Opportunities within the 2023 Ruling, to learn how plans can upgrade their engagement strategy to drive proven outcomes with D-SNP members. 

Member Communication for the Home COVID-19 Test Coverage Mandate and Other Rapid Response Programs

Beginning January 15th, the Biden Administration required health insurers to cover the costs of up to 8 at-home COVID-19 tests per month for their privately insured members. This not only helps reduce or eliminate up-front costs of Americans seeking an at-home solution to COVID-19 testing, but it also helps dull the pain points of finding testing facilities when needed.

The mandate, which quickly became breaking news, was a welcome announcement for health care consumers, but it threatened to strain insurers who were given official notice just days prior to its effective date. In the last two weeks, we’ve heard from many of our healthcare partners about the challenges this presents during an already busy season. Plans found themselves in a difficult position needing to communicate as quickly and accurately as possible while maintaining their current programs and managing their open enrollment period (OEP).

Easy Rapid Roll-out Practices for Your Members and Organization

Between call-center re-routes, at-home test kit availabilities, and managing the member experience, staying agile after this announcement can become both overwhelming and costly. This is not the time to trial and error communication with your populations.

Relying on the methods you have already been using for member communication is your best bet in yet another unpredictable turn during the pandemic, and there are several distinct best practices plans can follow to handle unexpected situations like this as they arise.

To start, use the quickest and most impactful means of communication with your members first. 3.8 billion people own a smart phone and SMS is a reliable source of fast communication. If that line of communication is already set up with your population, connecting them with resources after any sudden event will be much simpler. The minimum data requirements we recommend for our at-home testing mandate outreach or similar programs are the member’s first and last name, date of birth, mobile phone number, and address.

Channels like SMS are ideal for reaching consumers quickly but implementing a multi-channel approach by including email and even IVR channels is an option, too. For example, using a consumer’s preferred method of outreach, like IVR, to authenticate mobile numbers and direct them to two-way automated workflows can be an effective tool, allowing your organization to provide cost saving information within hours while still utilizing all lines of preferred communication.

Whatever the channels you choose, we recommend providing comprehensive education and resources by redirecting consumers to trusted information sources, such as an interactive FAQs page or links to valuable sites like USPS How to find a test site. This reduces the chance of them calling their plan for information that is thorough and easily accessible elsewhere. In the case of this at-home test mandate, providing them information on their pharmacy or a link to all in-network pharmacies near them can also help the plan save money on reimbursement costs.

Orchestrating this outreach early and getting in front of the member with the correct messaging before they reach out to your call centers can help mitigate costs in any situation, but it can be especially helpful after the at-home mandate announcement. It will not only help ease the influx of calls to a costly call center, but it will also lead your membership to the resources they need to secure their at-home tests at a more reasonable cost to the plan.

Another rapid roll-out best practice we recommend is partnering with a solution provider which has the technology in place to quickly deploy two-way messaging at scale. The ability to have bi-directional conversations to address the specific questions of each member individually (ideally through natural language understanding technology) will significantly improve the efficacy of your program. And with this partnership in place, you won’t need to focus on setting up member communications in the middle of figuring out execution. You can lean on your solution provider to build and deploy the program for you.

Interested in learning more? Watch our on-demand webinar on at-home covid-19 mandate best practices and rapid response solutions »

The most important factor, however, is acting quickly. If your outreach provider has contingencies in place for last-minute events like this, they will most likely be able to stand up a solution that has all our best practice elements included in a timeframe of two to three weeks or less.

How Does This Fit Into the Member Journey?

Though communication surrounding this mandate is trickier than other rapid responses, swift messaging to member populations is still essential. When a health plan reacts quickly to market changes and provides helpful information to ease members and patients through a complicated and cumbersome process, they become trusted partners throughout that member’s journey. The right communications from a trusted authority, reduce the complexity this new mandate has presented, and others to come, and will prevent misinformation that members face. If your organization has a communications partner with experience standing up programs quickly, then it can feel easier on the member to get common questions answered, find vaccine sites, and submit claims, etc. – further reducing barriers to crucial and accurate information.

And with CAHPS right around the corner, what better timing to solidify that spot as your member’s trusted source of information that is preventative and timely? Further strengthening trusted relationship between plan and member.

Understanding your membership and leaning on the information you have, such as their preferred language, the channels your healthcare consumers use, and the right contact information will go far when your organization needs to pivot and deploy information timely and most efficiently.

COVID-19 Home Test Coverage Takeaways

If your organization is currently using SMS to outreach to your populations, you are in the perfect position to outreach quickly and at scale, and you only have to switch out standard messaging with the right messaging for the moment. An easy framework for rapid rollout solutions your organization has at the ready, is a sure-fire way to communicate all new breaking information.

Then working with your solution provider to craft the perfect messaging or leaning on your solution provider’s behavior science technology will impact how swiftly your organization can easily respond in moments when messaging is not able to take the priority–like we saw just a few weeks ago many other times throughout the pandemic. The focus can remain on execution while your automated solution provides your membership with what they need to feel like they can come to you for the most reliable trusted resources at any time.

Analysis of April 1, 2021 Supreme Court Ruling on the TCPA

Big news for healthcare organizations that have been hesitant to fully leverage text messaging due to conservative interpretation of the Telephone Consumer Protection Act (TCPA). On April 1, 2021 the Supreme Court ruled that automated messaging did not fall under the TCPA if the system sending the messages was not an automatic telephone dialing system (ATDS). The court’s definition of an ATDS was very narrow. Whether storing or producing numbers to be called, the equipment in question must use a random or sequential number generator to be considered an ATDS. Therefore, if organizations, healthcare or not, are not using an ATDS to send messages, then those messages do not fall under the TCPA. The ruling provides additional protections that should persuade more conservative organizations to adopt prior express consent strategies. The TCPA was established in 1991 to protect consumers from the growing number of telephone marketing calls. In 2013 and 2015 a series of carve-outs added provisions for healthcare related calls and messages where consumers who have knowingly released their phone numbers to a HIPAA compliant entity (or its Business Associate) have effectively given their invitation or permission to be called at the number which they have provided, absent instructions to the contrary. The call or message must fall within the scope of the consent that it was provided. Most commonly, this means if an individual provides their mobile phone number e.g. filling out an application form (paper or online) for health coverage or signing up to a medical practice, then they have provided consent for that company or another operating under a BAA to use that number to contact that individual. If you applied to a state Medicaid agency for health coverage and provided your mobile number on that enrollment form, then after coverage was granted you received a message from the managed care organization you had been assigned to, it would not a be a surprise. More likely it would be a good experience. Maybe even expected. But some healthcare organizations have taken a more conservative interpretation of the law and require the strictest consent requirements: prior express written consent. Applying prior express written consent to the above example, in addition to providing their number when enrolling at the state level, the member would have to specifically provide written consent (typically, by providing their number again, checking a box to confirm consent, or texting in a keyword) in order to receive automated communications from that health plan managing their benefits. This approach significantly reduces the percentage of members who can benefit from valuable informational messages to help them manage their health. Unless healthcare organizations are using a system that has the capacity to generate and store random or sequentially generated phone numbers, which is extremely unlikely, this Supreme Court ruling means messages they send to patients and members do not fall under the TCPA. There is no law regulating their messaging, minimizing any risk of class action litigation. However, member consent is part of providing a positive experience. That’s best practice. So, what the ruling effectively means is that in addition to the protections afforded by consent, healthcare organizations have another layer of protection by falling outside of the ATDS definition. Depending on how organizations have previously interpreted TCPA, here is some guidance to help align on a new approach: Organizations that have historically obtained prior express consent
  • These organizations do not need to adjust their approach. Using prior express consent means they can engage the majority of the members and drive optimal value out of the SMS channel.
Organizations that have historically required prior express written consent
  • Business leads should work with their legal teams to transition to a prior express consent strategy. Any concerns about the prior express consent approach are mitigated by the additional protections afforded by the Supreme Court ruling.
Organizations that have historically received phone numbers from a 3rd party
  • Business leads should assess the context of how individual numbers were originally provided. If the number will be used to engage individuals on topics related to the scope of how it was provided, then the business leads should work with their legal teams to transition to a prior express consent strategy.
The definitions of ATDS apply to both pre-recoded voice calls and text messages. However, following the Supreme Court ruling, adapting consent strategies for text messaging is clean compared to pre-recorded voice calls or IVRs. Within the TCPA, pre-recorded voice calls have additional areas of regulation pertaining to how the mobile number was gathered and these areas must be taken into account when conducting automated calls. There are more protections for sending automated text messages than there are for pre-recorded voice calls. The ruling is favorable for organizations across industries, but it is unlikely to lead to dramatic changes to how organizations use the SMS channel. Firstly, considerable industry self-regulation exists, such as carriers’ ability to block automated spam calls. The CTIA (industry body for the wireless communications industry) provides strict guidance on how messaging programs should be managed and has the power to shut down non-compliant messaging programs. Secondly, it is in the interests of brands to follow best practices and deliver excellent consumer experiences. The Federal Communication Commission (FCC) that oversees the TCPA may react to the Supreme Court ruling by updating the law, but the manner and urgency of its response will in part be driven by whether brands put consumer interests at the fore and self-regulate best practices for consumer messaging engagement. If the FCC does act, and it has no obligation to do so, any new consent rules would have prospective effect only. For healthcare organizations that have been slow to adopt text messaging engagement due to TCPA regulations, the ball is firmly in their court. The TCPA is vague in parts and while many organizations see the opportunity the prior express consent approach, they hold-back because of uncertainty of the language. Now that the risk of class-action litigation has been largely ruled-out, these organizations have a significant opportunity to leverage the SMS channel more.