TCPA Exception Made for Certain Health Care Related Calls Covered by HIPPA

Under the Telephone Consumer Protection Act(TCPA), certain types of calls are exempt from the Do Not Call provisions. Consumers who have placed their numbers on the Do Not Call Registry can still receive calls from:

• Political organizations, charities, and people conducting surveys,
• Companies the consumer has an existing business relationship with, and
• Companies the consumer has given permission to call

Now the Federal Communications Commission (FCC) and the Federal Trade Commission (FTC) have specifically exempted from their restrictions calls made using an automatic telephone dialing system (ATDS) and prerecorded calls by an entity permitted under the Health Insurance Portability and Accountability Act (HIPAA).

The HIPAA regulations determine whether or how a person’s protected health care information can be disclosed. Under 45 C.F.R. § 160.103, the information protected under HIPAA includes all “individually identifiable health information” that is held or transmitted by a covered entity or business associate, regardless of form or media, and can be electronic, paper or oral. A “business associate” is defined as a person who transmits or maintains health information on the behalf of a covered entity. The definition of “covered entity” includes:

• A health plan;
• Health care clearinghouse; or
• A healthcare provider who transmits health information electronically in connection with certain transactions

Since the calls made on the behalf of a health care provider could inadvertently disclose individually identifiable health information, they are subject to HIPAA. Therefore, these companies need to be aware of the types of calls permitted under HIPAA. Generally, covered entities cannot use or disclose health care information that is protected for marketing purposes. Under 45 C.F.R. § 164.501, calls made only for the purpose of the provision of health care and contain information related to care, services, or supplies related to an individual’s health are permitted.

While determining whether “immunization reminders, health screening reminders, medical supply renewal requests, and generic drug migration recommendations would constitute inducements to purchase goods or services” and therefore violate the TCPA, the FCC and FTC agreed that the regulations under HIPAA are “rigorous” and the “enforcement measures of HIPAA discourage abuse” due to civil and criminal penalties. Therefore the FCC adopted an exemption from the TCPA rules with regards to prerecorded health care related calls that are subject to HIPAA and made to residential lines.

HIPAA provides minimum protection for calls that are made into any state. However, if there is a conflict between state law and HIPAA, then HIPAA will prevail. States can place additional restrictions, beyond those that HIPAA provides, when it comes to the privacy of individually identifiable health information.

It is permitted under HIPAA for ATDS or prerecorded calls to be made by covered entities or on their behalf provided that the calls are not made for the purpose of marketing a product or service or if the consumer has provided prior written consent. Calls to consumers must describe a health-related product or service that is included in a plan by a covered entity, relate to the care or case management of an individual, or be for an individual person’s treatment.

Our experienced attorneys here at Krohn and Moss Consumer Law Center have also provided many helpful resources regarding the Fair Debt Collection Practices Act and how debt collectors should act. For more information, click here to learn more about this act and how it can help you.

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