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FCC Ruling Allowing Automated Text Messaging Will Help State and Local Agencies With Unwinding Medicaid Continuous Coverage

A key ruling earlier this year from the Federal Communications Commission (FCC) confirmed how state- and locally administered Medicaid programs can send automated texts to enrollees. This will help Medicaid agencies send timely information to the millions of enrollees who will soon be subject to losing their coverage as they undergo renewals now that the COVID-19 continuous coverage requirement is coming to an end.

In response to a Health and Human Services Department inquiry, the FCC confirmed that state governments can send automated text messages without facing Telephone Consumer Protection Act (TCPA) liability. It also suggested avenues for local governments, which face tighter restrictions, to send automated texts without facing such liability.

We provide some important context for both types of jurisdictions below. With pandemic-related benefits ending not just in health but in economic security programs, it’s important that state and local governments coordinate efforts to leverage available options for using the proven success of text messaging to preserve the continuity of benefits for eligible enrollees.

The TCPA places certain restrictions on texting, but the FCC confirmed that state governmental agencies are not “persons” subject to TCPA liability. Therefore, even though prior express consent is given when an applicant provides their phone number on a benefits application, state government callers don’t need prior consent to send automated text messages or make calls regarding eligibility and enrollment to assistance program applicants and enrollees. These entities are also not liable under TCPA if the phone number of an attempted contact has been reassigned and no longer belongs to the enrollee who provided the number.

Importantly, state agencies administering SNAP (the Supplemental Nutrition Assistance Program) should also consider this ruling as authorization to make similar contacts to keep SNAP enrollees informed as COVID-19 flexibilities come to an end. Although the FCC’s ruling is in response to the Centers for Medicare & Medicaid Services’ (CMS) request about the ability of Medicaid agencies (and their partners) to text, the ruling relies on long-standing precedents about the status of state government that apply more broadly.

Turning to local governmental agencies, in some states Medicaid, SNAP, and other programs are administered by counties or other units of local government. The FCC ruling clarified that unlike state governments, local governments and contractors are considered “persons” under the TCPA and could be subject to liability if they send texts without consumer consent. They must receive prior express consent to send automated texts to enrollees and can face TCPA liability, in the form of financial fines, if consent is not obtained. Helpfully, the FCC ruling confirmed that an individual providing their phone number on a benefits application constitutes prior express consent to be contacted at that number regarding enrollment eligibility.

While consent is given at application, enrollees are entitled to revoke their consent, and local governments may be liable under TCPA if automated texts or calls are sent to a non-consenting recipient. In addition, to avoid TCPA liability, local governments must ensure that the recipient of the automated text is the same person who provided consent to text the phone number.

For example, if the person who provides the phone number on the application changes their number, and the original number they provide is reassigned to a new person, local governments can face TCPA liability if they send an automated text to the original number (and if the new owner of the number didn’t provide express consent).

The FCC ruling didn’t go as far as CMS and many health advocates had hoped in reassuring counties (and managed care plan partners) that automated texting during unwinding is without liability. But it did highlight some ways these entities can avoid TCPA liability if they choose to text enrollees.

Here are some of those strategies and tools that local agencies can use:

  • Have the state agency send the text message(s). With state-sent automated texts protected from TCPA liability, state agencies could coordinate with counties to identify enrollees that need to be contacted and send messages to those enrollees. Considerations for this model depend in part on how much variation there is among counties on things like:

    • due dates for redetermination-related forms;
    • what language to use in text messages; and
    • contact points for applicants to receive assistance (for example, a statewide call center and/or online case management portal).
  • Use the Reassigned Number Database (RND). A local government could avoid liability by leveraging the RND to see if the number provided has been reassigned. The RND provides a safe harbor from liability if a local government checks the database before sending the text. Considerations for this approach include the financial resources to cover the nominal usage fee and capacity to execute data match inquires using the RND. For example, using the RND requires the county or locality to identify when the phone number was provided to them, which is not usually tracked in an eligibility system. If the precise data aren’t available, the local government could use a proxy, like the application date, and avoid texting that number if it was reassigned after the application date.