Now that the FCC has clarified rules for contacting patients about payments, hospitals and health systems are risking multi-million dollar settlements by failing to take the law seriously.
This article was originally published on February 22, 2016.
A California hospital chain is learning the hard way that the Telephone Consumer Protection Act (TCPA), clarified by federal authorities last year, creates new hurdles for health systems that want to use cell phones as part of their debt collection efforts.
CFOs and revenue cycle managers must now ensure that they are in strict compliance with the limitations on cell phone calls, or declare a moratorium on all such calls until they can be sure, experts say.
In 1991, Congress responded to consumer complaints about telemarketing calls to their mobile phones by enacting the TCPA, which restricts the use of automatic dialing systems, prerecorded voice messages, and text messages. The medical debt collection industry was hindered by the rule and in the summer of 2015 asked the FCC to clarify the TCPA, hoping to gain more flexibility on the use of auto-dialing to cellphone numbers, among other issues.
The move backfired, however, with the FCC clarifying that debt collectors must obtain express consent before dialing a cell phone number.
Almost immediately after the interpretive ruling, lawsuits were filed against companies in a wide range of industries, and Prospect Medical Group's Southern California Hospital at Culver City recently became one of the first healthcare providers to be sued.
It is facing a class-action suit alleging that it used an automated dialer to call a patient on her cell phone about collecting a debt, without her express consent. The rule allows consumers to seek $500 in damages for each call made in violation of the statute or $1,500 for each call made willfully in violation of the statute.
Hospitals are Lagging
Hospitals and health systems are risking multi-million dollar settlements by failing to take the TCPA seriously, says Mary Lee DeCoster, recently vice president for revenue cycle at Maricopa Integrated Health System in Phoenix, AZ, and now vice president for consulting services at Adreima in Phoenix. While with Maricopa, DeCoster also served on the Healthcare Financing Management Association's debt collection task force, which addressed legal and ethical issues.
"Hospitals need to focus on adding language to that section of the conditions of admission where the patient agrees to be responsible for charges incurred. The language should be very specific, with the patient saying 'I agree that you may call me on whatever phone numbers I give you, including land lines, cell phones, Skype numbers, or anything else,'" DeCoster says. "Hospitals are lagging in getting that information into their documentation."
The challenge for many hospitals is that when a patient provides a primary phone number, it is not always identified as a cell phone, notes Diane Watkins, vice president for revenue cycle at Saint Luke's Health System in Kansas City, MO. With more and more people foregoing a land line and using their cell phone exclusively, Saint Luke's Health System revised the Consent and Agreement for Health Care Services form to include language regarding consent to contact.
"By signing the form, the patient consents to any phone number the patient provides to be used to contact the patient regarding any unpaid balance on their account even if the number is a mobile or cellular number," Watkins explains. "By communicating up front with our patients we set a shared understanding of how phone numbers are used and ensure Saint Luke's compliance with the rules."
Collectors are Skittish
DeCoster notes that collection agencies are becoming more sensitive to TCPA liability and will act in their own best interest if they do not have necessary data from the healthcare provider.
"At the back end, the collection agencies are hamstrung. They don't know if the hospital got that permission or not, and they are now starting to behave very cautiously," DeCoster says. "It is affecting their ability to collect."
Health systems should ensure that collection agencies are provided accurate information regarding which patients may be called on mobile phones, DeCoster says. That information could be captured as a data point in the listing that would give the collection agency the go-ahead to load that information into the auto-dialer, she suggests.
8 Things Providers Should Know
Understanding the TCPA is the first step toward compliance, and many healthcare leaders know less than they think they know, says Rozanne M. Andersen, vice president and chief compliance officer with Ontario Systems in Muncie, IN, which provides debt collection support for the healthcare industry. Andersen offers these facts about the TCPA:
1. It is not just about debt collection.
The same restrictions apply to calls reminding patients of an appointment, a test result, or any other message. If that call is made to a patient's cell phone, the TCPA requires express permission from the patient.
2. The TCPA does not require permission for all calls to a patient's cell phone.
A provider may call a patient's cell phone as much as it likes, even without the patient's permission, as long as an auto-dialer is not used and no pre-recorded messages are left.
3. Avoidance of auto-dialed or prerecorded messages does not assure compliance.
If a provider's debt collection agencies or other vendors use non-complaint methods, the provider can still be held responsible for violations of the TCPA.
4. Consent is provided when the cell phone number is obtained.
When the subscriber to the phone service or the customary user of the phone provides the cell phone number to the provider, that person is providing consent to be contacted at that number by the hospital or health system, its accounting department, its collection agencies, or anyone else calling on the provider's behalf. Providing the cell phone number is considered express consent to call and to use auto-dialers and recorded messages under the TCPA, Andersen explains. But if the cell phone number was obtained in any other way, there is no consent.
5. It is always a good idea to get written consent anyway.
Obtaining written consent should not be difficult because providers can add a statement to the admission forms that grant the provider permission to reach the patient at any number provided. Even better would be a statement such as "I hereby provide you my mobile number to communicate with me regarding my treatment or services rendered." The courts have made clear that providers do not have to state explicitly that the permission includes the use of auto-dialers and pre-recorded messages, Andersen says, but acknowledging that those methods may be used could provide an extra layer of protection.
6. A cell phone number in the patient's record does not necessarily include consent. For instance, if a spouse or friend fills out the paperwork for a patient admitted through the emergency department, it is not safe to assume the healthcare provider has consent for that cell phone number. The TCPA says consent comes when the subscriber or customary user provides the number, and though a person may be authorized to act on the patient's behalf regarding the paperwork, it is risky to assume there is consent for cell phone contact.
The best course of action in that situation may be to employ a method of scrubbing all such ED-originated cell phone numbers from records before they are entered into the main system, or to flag them as potentially problematic. For instance, cell phone numbers originating in the ED could be automatically blocked for use until someone manually calls that number to confirm that the patient consents to its use.
"Front door admissions I don't lose much sleep over, but with numbers you get through the ED, who knows who you're calling?" Andersen says. "There's just too much chance that someone is going say they never wanted that number given to you and you didn't have permission to use it.
7. Consent does not transfer from one episode of care to another.
If a patient gave her cell phone number during admission for a tonsillectomy in 2013 but not when she was admitted for a splenectomy in 2015, the provider does not have consent to call that cell phone number with an auto-dialer or prerecorded message regarding the splenectomy. This can be an easy pitfall for providers, Andersen says, because when patient data is merged, there may be no indication when and how the number was obtained.
8. The TCPA requires that revocation of consent be documented.
The FCC's recent clarification of the TCPA indicates that any user of a cell phone number has a duty to track and record revocation of consent. If anyone in the organization contacts the patient by cell phone and the patient says he or she doesn't want to be contacted by that number anymore, the provider must immediately document that revocation. Then the provider must have a process by which the number is removed from its systems or flagged as unusable, Andersen says.
Court rulings in favor of plaintiffs in TCPA cases are usually small. But for lawyers and corporations, the losses costs can be in the millions.
"In 2014, the average consumer received $4.12 from a TCPA class-action settlement. Plaintiffs' lawyers received an average of $2.4 million," according the Wall Street Journal. TCPA lawsuit settlements with Walgreen's Pharmacy over the last two years totaled $11 million.
Gregory A. Freeman is a contributing writer for HealthLeaders.