Managed Medicaid plans and health systems hampered from texting consumers by 30-year-old law

ConsejoSano CEO and founder Abner Mason

Photo courtesy of ConsejoSano

A 30-year-old federal law is preventing many managed Medicaid plans from communicating with their members in the way most consumers prefer to get information: by text.

The Telephone Consumer Protection Act was passed in 1991 to prevent consumers from receiving robocalls from companies that set up automated, randomly dialed numbers. The law specified that companies calling consumers without advance permission would suffer a financial penalty. This is about $1,500 per infraction, according to Abner Mason, CEO of ConsejoSano, who spoke about how the law affects health plans and health systems, on HIMSSTV at HIMSS21. 

Though few were texting 30 years ago, the law also included text messages, Mason said.

"Fast forward to now, text messaging has become the common way people communicate," Mason said. "It's particularly true for lower-income people. It's a fast, inexpensive way to communicate."

Health systems are under the same restrictions, he said, though individual physicians may text their patients.

WHY THIS MATTERS

As health systems and health plans try to stay ahead of retail and other competition in healthcare, presenting the best patient experience has become paramount.

COVID-19 has placed an emphasis on health equity and quality care for vulnerable populations.

The Telephone Consumer Protection Act is hampering both of these efforts, according to Mason.

Under managed Medicaid, plans are paid per each member enrolled. The plans have the responsibility of making sure members take advantage of their benefits. For instance, it's the responsibility of the plan to get members to required screenings or to ensure that their children are vaccinated for polio and measles, Mason said.

"It's the plans that are held accountable," Mason said.

ConsejoSano, in North Hollywood, California, works with health plans to contact hard-to-reach Medicaid members who may have cultural and language barriers that prevent easy communication.

Mason estimates that more than 90% of lower-income individuals have a phone that can get text messages. Most can get an inexpensive phone for free. As many have families in other countries, FaceTime, rather than via phone, has become the common way to communicate.

"Mail doesn't work. You can't knock on the door. Even email doesn't work," Mason said. "What we've found is, you can call." 

But not everyone answers the phone.

"The best way to communicate with these members is the way the members prefer, and 10 to one that's text messaging," Mason said. "That's the challenge for the health plan."

The problem is that even texting a member to ask permission to communicate by text is a violation of TCPA. Some plans are willing to take a risk, he said, but in many cases their legal departments advise that texting is a violation.

THE LARGER TREND

One piece of good news came in April, when the Supreme Court ruled that the TCPA was only meant to stop robocalls that were being generated randomly. This meant that the Supreme Court decided the law did not pertain to health plans that were trying to reach known members, according to Mason.

"As soon as the Supreme Court ruled, the problem should have changed overnight, but it didn't," he said. A big reason is that, as one plan in California put it, "'We're not regulated by the Supreme Court, but we're regulated by Medicaid in California.'" 

What's needed is for Congress to change or amend the law, for individual states to act, or for the Centers for Medicare and Medicaid Services to issue a blanket policy regarding texting based on the Supreme Court ruling, according to Mason. 

In asking to comment, CMS said that the Health Insurance Portability and Accountability Act (HIPAA) is handled by the Department of the Health and Human Services Office of Civil Rights and referred comment there.

ON THE RECORD

"It really affects us because ConsejoSano is a health equity company," Mason said. "We do a lot of work with multicultural people. Most of our work is in Medicaid. For us and our work … the only way to communicate with patients is texting. [The health plans] hire us to create the content that is culturally appropriate. We're prevented from using that tool half the time or more. We don't reach the most vulnerable people."

Twitter: @SusanJMorse
Email the writer: susan.morse@himssmedia.com