ACAP Letter to FCC on TCPA 2017 Implied Consent

“ACAP Letter to FCC on TCPA 2017 Implied Consent.” March 27, 2017.

March 27, 2017


Federal Communications Commission
445 12th St. SW
Washington, DC  20554

Submitted electronically to the Federal Communications Commission’s website:

Re: [CG Docket No. 05-338]

Dear Commissioners:

The purpose of this letter is to indicate the Association for Community Affiliated Plan opposition to the Petition for Rulemaking and Declaratory Ruling of Craig Moskowitz and Craig Cunningham, CG Docket No. 05-338.  As we understand the petition, it seeks to overturn previous orders that recognize prior implied consent when a health plan member provides a cell phone number to the state Medicaid program or the health plan as the member’s contact number and require the agency to go through a rule-making process.

ACAP is an association of 57 nonprofit and community-based Safety Net Health Plans. Our member plans, located in 26 states, provide coverage to more than 17 million individuals enrolled in Medicaid, the Children’s Health Insurance Program, Medicare Special Needs Plans for dually-eligible individuals, and Qualified Health Plans. ACAP plans are members of their communities, partnering with states to improve the health and well-being of their members who rely upon the Medicaid program.

The petition would only serve to restrict the use of non-marketing, member health education calls. These vital non-marketing calls allowed under HIPAA are a necessary, practical and often contractually required by State Medicaid purchasers as a means to interact with members, many who no longer have land lines and rely exclusively on mobile phones. Examples of the vital nature of health plan outreach calls to members include reminders to members when important and potentially life-saving preventive care such as vaccines and well-child visits are due, encouraging members to adhere to appropriate medication use schedules and providing timely follow-up following hospitalizations or emergency room visits. Empirical studies demonstrate that health care-related texts and calls lead to more engaged patients, better patient outcomes, and lower health care costs for consumers. These are critical public health goals.

We wholeheartedly agree with this assessment. In fact, the Lifeline program was enacted to ensure that telephone service is available to address the critical needs of the most vulnerable members of society. Making Lifeline mobile phone service available to validated Medicaid beneficiaries and leveraging those phones to deliver critical health education, monitoring and support that is proven to improve critical health outcomes for Medicaid families achieves that aim only if the phones can be used to contact members.

In fact, as suggested in the Joint Petition of Anthem, Inc., Blue Cross Blue Shield Association, Wellcare Health Plans, Inc., and the American Association of Healthcare Administrative Management for Expedited Declaratory Ruling and/or Clarification of the 2015 Telephone Consumer Protection Act (“TCPA”) 2015 Omnibus Declaratory Ruling and Order (the “2015 Declaratory Order”) (CG Docket No. 02-278) filed on July 28, 2016, we believe the Commission should take action to clarify and further align the use of health plan member telephone numbers under the TCPA with the regulation of the same use under the Health Insurance Portability and Accountability Act (“HIPAA”).  In doing so, the Commission should protect non-telemarketing calls allowed under HIPAA in light of their unique value to and acceptance by consumers.

If you have any questions concerning this letter, please feel free to contact Deborah Kilstein, VP for Quality Management and Operations at (202) 341-4101 or by email at


Margaret A Murray


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