HHS Letter to the FCC on Text Messaging: Model Comments to Inform State Comment Letters in Support
Alexander Dworkowitz, Kinda Serafi and Patricia Boozang, Manatt Health
As state Medicaid and Children’s Health Insurance Program (CHIP) agencies develop their strategies for unwinding the federal Medicaid continuous coverage requirement, many are looking to text messaging and automated phone calls as mechanisms for communicating important coverage information to their enrollees (see here for more on why text messaging is an important communications and outreach strategy for the unwinding). Some text messages, however, are subject to the Telephone Consumer Protection Act (TCPA), a federal law designed to protect consumers from unwanted phone calls and texts. In many cases the TCPA requires the sender of a text message to obtain the recipient’s prior consent before sending a text.
On May 3, 2022, the Federal Communications Commission (FCC) opened a public comment period for feedback on a letter submitted by the Department of Health and Human Services (HHS) Secretary Xavier Becerra and Centers for Medicare & Medicaid Services Administrator Chiquita Brooks-LaSure. The letter requests the FCC’s opinion on the use of text messages and automated calls to enrollees as states resume regular operations at the end of the COVID-19 Public Health Emergency (PHE). The public comment period is an opportunity for states to share how text messages and automated phone calls are needed to reach enrollees in order to remind them to update their contact information, return their renewal forms and follow up with the Marketplace if their enrollment needs to transition. States may also share how these communication strategies aim to prevent gaps in health coverage that will result if individuals do not successfully transition to alternative coverage when their Medicaid enrollment ends.
Below, we provide model comments developed to inform and support state responses to the FCC’s public comment period. We encourage states to submit comments, including by leveraging and building on any of the below language that reflects the state’s strategies and priorities. States must submit all comments by Tuesday, May 17, 2022, via the online portal. Comments should be addressed to:
The Honorable Jessica Rosenworcel
Federal Communications Commission
45 12th Street SW
Washington, DC 20554
Model Comments for State Consideration in Response to the FCC Public Comment Period
We write to express our full support for the thorough and well-detailed petition that the Secretary of the Department of Health and Human Services, jointly with the Administrator for the Centers for Medicare & Medicaid Services, submitted to your agency regarding the need for state Medicaid agencies like ours to send limited communications to enrollees via text messages and automated, pre-recorded calls. We concur with the Secretary’s conclusions, and we respectfully request that the Federal Communications Commission (FCC) issue an opinion that concludes that state Medicaid agencies, local government agencies, Medicaid managed care organizations (MCOs), and other state and local government agency contractors will not be acting in violation of the Telephone Consumer Protection Act (TCPA) when they send such communications.
The Need for Text and Phone Communication with Enrollees
Due to a provision in the Families First Coronavirus Response Act (P.L. 116-127), our agency, like others around the country, has maintained enrollment of nearly all of our Medicaid enrollees throughout the public health emergency under what is known as the “continuous enrollment” requirement. As the Secretary has indicated, the public health emergency may soon come to an end. When it does, we will be required to redetermine eligibility for every Medicaid enrollee who has a pending renewal. Many enrollees will be required to respond to renewal forms and submit updated information or documentation to prove they still qualify for the program.
While some people may lose Medicaid coverage because they are no longer eligible for the program, others who continue to be eligible could lose their health insurance due to the simple fact that we do not have up-to-date contact information for them or because they have failed to respond to renewal requests for information. The pandemic is now more than two years old, and many of our [insert number of state’s enrollees] enrollees have moved to a different address during this time period and/or have never previously responded to renewal requests. Historically, we have communicated with our enrollees by sending them materials in the mail. But if an enrollee moves and has not sent us an updated mailing address, then we often will be unable to supply enrollees with these much-needed documents via the mail.
There is another option. We have the cell phone numbers of many of our enrollees, and we can remind them of the need to update their contact information and/or remind enrollees to respond to renewal requests through text messages and pre-recorded calls. But we have been unable to use this option due to fears that sending such texts and making such calls would result in multi-million dollar litigation against those providing such communications.
The Need for New FCC Guidance
We understand that the FCC has already provided guidance that indicates that state agencies are not “persons” under the TCPA and therefore employees of such agencies are immune from suit under the TCPA to the extent they are acting in their official capacity. However, this guidance does not go far enough because we rely on outside organizations to communicate with enrollees. [State should insert details on how it plans to communicate with enrollees via text and/or pre-recorded calls. This section should address why the state will need to rely on contractors, county/regional eligibility departments, and whether MCOs would play a role in outreach and if so, why.]
We view the Secretary’s request for flexibility on these types of communications as consistent with FCC’s past practice. As you are aware, in a 2015 ruling your agency permitted certain healthcare organizations to send communications without prior express consent for limited purposes such as appointment reminders. Similarly, at the beginning of the pandemic, your agency issued a ruling that concluded that state and local public health agencies, among other organizations, could send COVID-19 related communications also without prior consent. When a particular health-care related communication is clearly in the public interest, your agency has used its authority to provide a needed TCPA exemption.
There are few types of communications that are as much in the public interest as what we propose. Millions of people around the country—many of whom reside in our state—are at risk of losing the health insurance coverage they are legally entitled to simply because Medicaid agencies lack an up-to-date mailing address. The mistaken loss of their health insurance coverage would be yet another terrible consequence of the pandemic. Our agency and our partners should be able to use the information we have, the cell phone numbers of our enrollees, to communicate with our enrollees to ensure they can properly renew their coverage.
To be clear, the proposed communications would be made only for this limited purpose. If we were provided with the necessary flexibility, we would instruct our contractors, counties and MCOs that they would be permitted to send text messages and pre-recorded calls to our enrollees solely for the purpose of obtaining information necessary to determine whether those enrollees remain eligible for Medicaid [state should include reference to CHIP or BHP as applicable]. Our contractors would not be permitted to make communications with enrollees for any other purpose. Marketing and advertising communications would not be allowed. [For managed care states only: We would instruct our MCOs that communications aimed at marketing other products they may offer, such as life insurance or dental insurance, would be strictly prohibited.]
More than two years into the pandemic, many Medicaid enrollees in our state face the devastating possibility of losing their health insurance solely due to the fact that we have an expired mailing address on file and/or because they missed their window to respond to the renewal requests for information. There is a simple solution to prevent this impending crisis from becoming worse: sending text messages and pre-recorded phone calls to enrollees that allows us to obtain the information we need to determine whether an individual continues to qualify for Medicaid. We believe the FCC has the authority to allow our agency and our partners to engage in such communications, and we implore your agency to exercise that authority.