Federal Ruling Provides Text Messaging Flexibility to Support State’s Unwinding Efforts
Patricia Boozang, Kinda Serafi and Alex Dworkowitz, Manatt Health
On January 23, 2023, the Federal Communications Commission (FCC) issued an important ruling that provides states with new flexibility to support enrollee outreach and communication efforts as part of their processes to unwind the Medicaid continuous coverage requirement. The ruling permits state agencies and their partners—Medicaid managed care organizations (MCOs), eligibility and enrollment contractors, counties, and state-based marketplaces (SBMs)—to send text messages and make phone calls to individuals about enrollment-related issues not only for Medicaid but for other state-run health insurance programs, including marketplace coverage.
The Need for Texting
With Medicaid continuous enrollment coming to an end on March 31, 2023, states will begin to resume their standard Medicaid redetermination processes. In many cases, these processes rely on Medicaid enrollees providing information to states that demonstrate they remain eligible for the program. However, states fear they will struggle to obtain the information they need because the contact information they have for many enrollees is out of date. Many Medicaid enrollees have moved in the three years since the COVID-19 pandemic began. Sending mailings to old addresses will result in enrollees missing important notices, and could result in millions of eligible individuals losing health insurance coverage due to procedural reasons.
State Medicaid programs and others who provide government subsidized insurance coverage have turned to text messaging as a solution to this problem. States have found that their enrollees are more likely to respond to prompts to provide information when they are contacted by text than other means such as mail or email. States therefore hope that the use of text messaging will serve as an important tool to obtaining updated contact information and following up on returned mail in order to obtain the information they need to maintain continuous coverage.
The Telephone Consumer Protection Act Dilemma
Federal law places limits on how states and their partners may communicate with enrollees. The Telephone Consumer Protection Act (TCPA) requires “any person” to obtain the recipient’s prior express consent before making certain phone calls. This restriction applies to calls made to wireless numbers using an automatic telephone dialing system (also called an “autodialer”) or an artificial or prerecorded voice. Importantly, the FCC has found that a text message qualifies as a “call” and therefore organizations subject to the TCPA also generally cannot send text messages using autodialers without prior consent. Further, the TCPA calls for steep penalties for texts and calls that violate the law, and an organization that engages in a widespread text campaign can face expensive litigation if they fail to comply with the TCPA.
Prior guidance from the FCC has indicated that neither the federal government nor state agencies are considered “persons” subject to the TCPA, and therefore both federal and state agencies can send text messages to their enrollees using autodialers without violating the TCPA. But this TCPA exception does not provide full flexibility for states, as it only applies when state employees physically place the call or text. States often use contractors to communicate with enrollees and those contractors, unlike the state itself, are not immune from the TCPA. Further, TCPA immunity typically does not apply to counties, MCOs, or SBMs that are not themselves state agencies; these organizations are often instrumental in communicating with enrollees.
Concerned about how the TCPA could interfere with states’ efforts to keep eligible individuals enrolled in Medicaid and other programs, the Department of Health and Human Services (HHS) wrote to the FCC in April 2022, seeking an opinion that would provide more flexibility under the TCPA. The FCC followed with a public notice seeking comments.
New Federal Communications Commission Ruling
In its declaratory ruling, the FCC indicates that when an individual provides a phone number on an application that is used to determine eligibility for Medicaid, the Children’s Health Insurance Program (CHIP), Basic Health Program (BHP), or marketplace coverage, that individual has provided consent to be called and texted at that number. Such consent applies to “local governments, governmental contractors, and managed care entities when acting under contract and pursuant to the authorization and direction of a federal or state agency … regarding eligibility for and ongoing enrollment in those program.” The FCC explains: “Consumers who have applied for benefits in governmental healthcare programs expect and likely welcome calls and texts that inform them of requirements that may affect the provision of healthcare benefits for which they have applied, including the potential loss of coverage.” The agency adds “any reasonable consumer would view a call or text designed to prevent termination of benefits as closely related to the purpose for which they provided their telephone number.”
In short, by including a cell phone number on a Medicaid, CHIP, BHP, or marketplace application, an individual is providing consent to be called and texted at that number for purposes related to eligibility for and enrollment in those programs. Therefore, state agencies that run these programs – as well as counties, contractors, MCOs and SBMs working with such agencies – may send text messages to these enrollees without violating the TCPA.
The FCC also describes communications options where an individual has never provided consent for the receipt of texts which could occur, for example, if the individual did not include their cell phone number on a health insurance application. The FCC notes that there is no need for obtaining consent prior to making calls to residential telephone lines, as opposed to calls/texts sent to wireless numbers. Further, TCPA restrictions do not apply if live operators are used to make calls or texts, or if the communication occurs via email or mail. In addition, since states themselves are not subject to the TCPA, if state employees are the sole people involved in sending the texts/making calls, then TCPA requirements would not apply at all.
While the end of the Medicaid continuous coverage requirement motivated HHS to seek FCC guidance, the ruling is not limited to communications that relate to the potential termination of Medicaid coverage. The ruling also applies to CHIP and marketplace coverage. Further, there is no time limit on the guidance, and therefore it would apply to communications made in future years as well.
While the FCC ruling opens the doors to states, counties, MCOs, SBMs, and their contractors sending text messages to enrollees for enrollment and eligibility purposes, the agency also emphasized that these organizations should consider certain safeguards in order to promote TCPA compliance:
- At the State’s Direction: In cases where state employees are not actually sending the text, the sender should be acting at the direction and authorization of the state. The FCC does not describe what this means, but this requirement suggests at the very least that the state should direct the organization to initiate the text messaging campaign.
- No Marketing: The FCC reminds users that the messages may be made solely for eligibility and enrollment purposes, and that enrollees have not consented to the receipt of marketing communications simply by filling out a state health insurance application.
- Content of Message: The FCC notes that HHS’ letter indicated that all messages will identify the agency on whose behalf the message is being sent and provide an option for opt-out, suggesting the agency expects senders to follow this requirement.
- Message Limit: The FCC similarly notes that HHS represented that no more than six to eight calls or messages will be sent to any one individual, and therefore may view such a limit as a best practice.
- Revocation: Senders should honor consent revocation requests.
- Reassigned Number Database (RND): In some cases, an applicant may include a cell phone number on a Medicaid application but switch numbers after applying; this could result in someone else receiving the applicant’s old phone number and therefore mistakenly receiving the texts. FCC strongly encourages parties to check the RND, which indicates when a number is assigned to someone else, before sending texts.
The FCC makes clear that the first two requirements – acting at state direction and avoiding marketing – are mandatory, but the agency does not specify whether the others are required. However, following all of these safeguards could help reduce the threat of lawsuits, since plaintiffs’ attorneys could still sue despite the FCC guidance.
In addition, while not addressed in the FCC ruling, states should remember that Health Insurance Portability and Accountability Act (HIPAA) guidance separately urges senders to encrypt text messages if those messages included protected health information and the recipient has not been warned of the risks of unencrypted communications.
With the end of the continuous coverage requirements fast approaching, states have an imperative to review their consumer outreach and communications strategies and evaluate whether and how they want to deploy text messaging as a tool for conducting outreach to support smooth redeterminations and address on-going workforce constraints. States can leverage State Health and Value Strategies template communication materials developed by communications experts at GMMB that includes communications resources, including sample text messages, as they prepare for the various stages of work needed to inform stakeholders and consumers about the end of continuous coverage.
States will be looking to the Centers for Medicare & Medicaid Services to provide clarifying guidance on whether text messaging will meet the requirement under the 2923 Consolidated Appropriations Act (CAA) that a state must conduct outreach through an alternate modality prior to termination upon receipt of returned mail (more information on the unwinding provisions in the CAA is available here). States should also identify what additional guidance, memorandum of agreements, and/or contract amendments are needed to get a text messaging process in-place.
For more information on state strategies to support Medicaid/CHIP coverage retention and plan for the end of the continuous coverage requirement, see the SHVS resource page.