We fundamentally agree with the premise of this hearing that the TCPA is in need of modernization in light of the broad policy goals of the TCPA of eliminating unwanted calls from unwanted callers. It must be updated to ensure that the public benefits from evolutions in telecommunications technology and accounts for the way Americans interact and consume information in the modern world. We also share the goals of maintaining privacy consistent with strict, federal standards, such as the
We would like to use this opportunity to illustrate the positive way modern technologies can improve individuals' health and wellness and create efficiencies in health care treatment, payment, and operations that benefit consumers through lower premiums and earlier treatment and prevention. We also would like to address how the privacy of our members is well guarded through the careful structure of HIPAA, which overlays such communications outreach.
Background on WellCare
Managed health care companies like WellCare administer
TCPA Effect on Health Care Policy Initiatives
While the TCPA serves an important privacy-enhancing purpose, the
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, which are critical public health goals. Many Americans are not receiving recommended health tests and screenings. For example, among adults in the age groups recommended for cancer screenings, about two in five were not up to date with colon cancer screenings, one in four women were not up to date with breast cancer screenings, and one in five women were not up to date with cervical cancer screening. n1 Text messages in particular have proven effective in delivering health care reminders and increasing adherence to treatment attendance at health care appointments. n2 In studies among low-income urban populations, researchers found that 72.7% of parents who received text reminders brought their children in for recommended follow-up vaccination appointments. n3 With some 20,000 children hospitalized annually for influenza, any increase in inoculation rates directly improves public health. n4
Additionally, 20% to 30% of prescriptions are never retrieved by patients and up to 50% of medications are not taken as prescribed. n5 This non-adherence produces between
In order to modernize the TCPA, we must start at the heart of the issue. Today's reality is much different than that of 1991 when the TCPA was first introduced. In 1991, it was never envisioned that by 2015, 47.4% of American households relied exclusively on wireless devices for telephone service, and "more than two-thirds of all adults aged 25-34 and of adults renting their homes" live in wireless-only households. n7
For automated telephonic outreach to be effective, it must reach consumers' residential and mobile phones. Wireless-only households are more likely to have numerous health challenges, such as financial barriers, substance abuse, and lack of influenza vaccinations. n8 Hard-to-reach populations are especially prone to use cell phones as their primary means of telephonic communication. n9 Other means of outreach, such as mailings and calls to landlines, are not effective in reaching many consumers, especially young people and low-income groups.
Available data shows that a large majority of consumers desire access to programs that use telephonic contact for health care, recognizing there are concrete health benefits. A survey of commercially insured consumers found the highest acceptance for health management programs when they are mobile contacts. n10 Additionally, telephonic outreach using automated technologies can save lives. For example, colon cancer is the number two cancer killer in
Telephonic outreach via automated technology also has been shown to be successful in encouraging consumers to receive other important physician-recommended screenings, with improved rates found for diabetic glaucoma screenings (with 51.6% compliance among those receiving intervention versus 42.5% for those who do not), mammography (20.6% versus 10.7%), and cervical cancer screening (15% versus 8.9%). n14 Telephonic outreach has been shown to reduce post-discharge hospital readmission rates, with a study showing that discharged patients receiving follow-up outreach had a readmission rate of 9%, as compared to 15% for patients not receiving outreach. n15
In addition the TCPA increases costs by focusing on the capability of the equipment used to deliver these healthcare messages rather than the actual use. The
As I mentioned earlier, non-compliance with the TCPA carries the potential for large penalties. These penalties also drive concern and the need for reform. In addition to the regulations surrounding the capabilities of the equipment, the TCPA also permits one call to be made without liability after a telephone number is reassigned from the person who gave consent to another person who has not given consent. Id. at [Para.] 72. Even if this call does not yield actual knowledge of the reassignment, the caller is deemed to have constructive knowledge, and will be liable for all calls placed thereafter. Id. at [Paras.] 72, 85. These penalties may have once been effective in deterring unwanted callers, but now may actually penalize those who desire the information the calls contain.
Providing health benefits to the most medically complex individuals is wrought with challenges, least of which is actually making contact with the member. Frequently, our members struggle with permanent housing and other financial challenges. It is not uncommon to have multiple phone numbers for a single member; often times an unintended recipient answers and informs us that either a wrong number has been dialed or the member no longer utilizes the phone number. Sometimes, however, the call goes unanswered. To import knowledge of a "reassigned phone number" based off one-unanswered phone call is to penalize the caller for attempting to comply with the mandate of providing information and education to its members in an efficient and cost effective manner.
Harmony between HIPAA and the TCPA
HIPAA, and the Privacy Rule issued pursuant to HIPAA, authorize and regulate the use of PHI. n17 Courts have held that PHI regulated by HIPAA includes telephone numbers. n18 The Privacy Rule established a "foundation of Federal protection for personal health information, carefully balanced to avoid creating unnecessary barriers to the delivery of health care." n19 HIPAA applies to all Covered Entities, which includes not only health care providers, but also health plans, health care clearinghouses, and their business associates which are service providers to the Covered Entities that need access to PHI to perform their services. n20
The Privacy Rule draws careful distinctions between using and disclosing PHI for permissible health care related communications, which do not require specific prior authorization, and communications that do require prior written authorization. Covered Entities are permitted to make health care-related communications without prior authorization (or, in TCPA terms, prior express consent), for the purposes of treatment, payment, and health care operations under the Privacy Rule's general rules. n21 The
HIPAA already provides for steep penalties, including criminal and civil penalties and robust enforcement by the
The TCPA was intended to protect consumers from annoying and harassing phone calls never consented to by the recipient. In 1991, when the TCPA was first introduced, the consumer did not envision how information would be disseminated in 2016. Today, the consumer is more likely to receive an important health message via cellular phone call, text message and/or email as they would be by regular mail. As detailed, these health messages can mean the difference between obtaining a flu shot before one of the worst flu seasons, reminding a recently discharged hospital patient to change the dressing on a wound to avoid infection and readmission or even life or death. As part of any attempts to modernize TCPA,
Additionally, in modernizing the TCPA,
Thank you for your invitation to testify today, and I look forward to answering your questions.
n1 Many Americans Not Getting Routine Cancer Screenings:
n2 Kati Annisto,
n4 See Stockwell et al., Effect of a Text Messaging Intervention on Influenza Vaccination in an Urban, Low-Income Pediatric and Adolescent Population, 307(16) JAMA 1702-08 (2012); Maanvi Singh, Texted Reminders Help Parents Get Kids In For Flu Shots, http://www.npr.org/sections/health-shots/2014/12/29/373767691/texted-reminders-help-parents-get-kidsin-for-flu-shots (last visited
n8 Id. at 3.
n9 Stockwell et al., Text4Health: Impact of Text Message Reminder-Recalls for Pediatric and Adolescent Immunizations, available at http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3483980/
n12 Ex parte Letter from
n13 See id.
n14 PHE Ex Parte Presentation, slide 16. See also
n15 PHE Ex Parte Presentation, slide 15.
n16 Pub. L. No. 104-191, 110 Stat. 1936, pmbl (1996).
n17 PHI is "individually identifiable health information" that is "(i) Transmitted by electronic media; (ii) Maintained in electronic media; or (iii) Transmitted or maintained in any other form or medium." See definition of "protected health information" at 45 C.F.R. [Sec.] 160.103. "Individually identifiable health information" consists of health information, including demographic information, that identifies an individual or could be used to identify an individual, and includes information which "[r]elates to the past, present, or future physical or mental health or condition of an individual; the provision of health care to an individual; or the past, present, or future payment for the provision of health care to an individual." See id.
n18 See Baisden v.
n19 HHS Use and Disclosure Guidance at 1.
n20 45 C.F.R. [Sec.] 160.103.
n21 45 C.F.R. [Sec.] 164.502 ("Uses and disclosures of protected health information: General rules). And each Covered Entity is allowed to use and disclose PHI without prior authorization for its own treatment, payment and health care operations. 45 C.F.R. [Sec.] 164.506(b)(1).
n22 Standards for Privacy and Individually Identifiable Health Information; Final Rule, 67 Fed. Reg. at 53186.
n24 Standards for Privacy and Individually Identifiable Health Information; Final Rule, 67 Fed. Reg. 53182, 53183 (
n25 42 U.S.C. [Sec.] 1320d-5(d)(2).
n26 45 C.F.R. [Sec.] 160.401.
n27 See, e.g., Baisden v.
Read this original document at: http://docs.house.gov/meetings/IF/IF16/20160922/105351/HHRG-114-IF16-Wstate-TuranoM-20160922.pdf