Michelle Turano says plans want more consideration for their needs to contact enrollees. (Image: House hearing screen capture)

Federal Communications Commission efforts to protect mobile telephone users from annoying cell phone calls are interfering with health plans’ efforts to keep people healthy, a health insurance executive told members of Congress Thursday.

Michelle Turano, a vice president at Tampa, Florida-based WellCare Health Plans, an insurer active in the Medicare and Medicaid plan markets, testified at a hearing in Washington that FCC is being even tougher on health insurers than the U.S. Department of Health and Human Services when it comes to regulating plans’ use of automated telephone dialing systems.

A health plan or its vendor “calling to offer a flu shot or a reminder of an upcoming doctor’s appointment should be afforded the ability to contact their members and offer their services without the creation of legal liability,” Turano said at the hearing, which was organized by the House Energy & Commerce communications subcommittee.

“These are the exact same calls that health care providers can make today, but the FCC is silent as to whether managed health care companies can make these same sorts of calls,” Turano said.

The committee posted a video recording of the hearing on its section of the House website.

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Lawmakers organized the hearing to look into the possibility of updating the Telephone Consumer Protection Act of 1991, a law that governs telemarketing.

In 2003, the Federal Communications Commission and the Federal Trade Commission used a regulation connected with the TCPA to create a national Do-Not-Call list, or registry for people who want telemarketers to stop calling them.

The FCC has also used TCPA regulations to limit use of automated dialing systems, and to try to protect cell phone users with usage-based payment plans against calls and messages that might increase their charges.

In 2015, the FCC issued a declaratory order stating that a health care provider can call or send text messages to a cell phone number provided by a patient, if the provider keeps calls to less than a minute and text messages to less than 160 characters; if the provider attempts three or fewer communications to the cell phone per week; and if the communications deal solely with issues such as appointment confirmations and lab test results, not with billing matters or other financial matters.

The FCC ruled that a health care provider can place automatically dialed calls to cell phones “only if they are not charged to the recipient, including not being counted against any plan limits that apply to the recipient,” according to the order text.

An organization that violates the TCPA automated dialing rules by, for example, calling a wrong number because the owner of a cell phone has changed numbers, could owe more than $500 per violation. The FCC noted when it released the 2015 order that it had imposed a $2.9 million TCPA violation fine on one company in 2014.

The Health Insurance Portability and Accountability Act of 1996 and related regulations do let health plans make automated calls to enrollees’ cell phones in connection with billing problems, wellness concerns and other matters other than marketing, Turano said at the hearing.

Turano said that, given how important cell phones and text messages now are in consumer communications, health plans need the ability to use those methods to encourage all consumers to get flu shots, and for consumers who have just left the hospital to change the dressings on open wounds.

If a consumers gives a cell phone number to a health insurer or its business associate, that should constitute prior express consent for the plan and its vendors to use the cell phone number in communications about health care treatment, payment and plan operations matters, Turano said.

If that rule applied, Congress could protect consumers’ privacy by letting consumers revoke the insurer’s authority to use the cell phone number for plan-related calls, Turano said.

The FCC should also let insurers avoid penalties by operating a reasonable compliance program, rather than by imposing strict liability rules in connection with calls to wrong numbers, Turano said.

Related:

Industry Concerned About FCC’s Do-Not-Call Rule

Can I still call under “Do Not Call?”

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