What Can Healthcare Providers Learn from a Student Loan TCPA Case?

While on its face, Stauffer v. Navient Solutions, LLC (Case No. 15-cv-1542, U.S. District Court, Middle District of PA) is a student loan case, it offers an important lesson for healthcare providers and decision makers.

By way of brief recap, in March 2017, a United States District Court Judge ruled that Navient Solutions, LLC (Navient) did not violate the Telephone Consumer Protection Act (TCPA) when it contacted the Plaintiff (Stauffer) regarding a delinquent student loan on a cell number she provided in a different, and years-later, loan application to the same loan servicer.

A copy of the court’s Memorandum can be found here, and contains a concise review of the TCPA restrictions and the history of the FCC’s rulings interpreting the TCPA. In case you missed it, insideARM’s Tim Bauer covered the background, the decision, and key insights on the case.

Connect the dots

In the “insideARM Perspective” Bauer concluded,

This is not a case that should be limited only to student loans. It is a fact scenario that exists quite often outside of the student loan world. Many credit grantors deal with this fact situation on a regular basis: A consumer has more than one account with the same creditor; The accounts were not opened at the same time; The consumer provides express consent to be called on his/her cell phone in the account documentation; The express consent is written; The consent language is well drafted; The consumer consents to be called “at the current or any future number that [she] provided for [her] cellular telephone or other wireless device using automated telephone dialing equipment.”

What can healthcare providers take from this case? Does it offer anything beyond just an Express Written Consent parable?

Re-frame information-gathering as a best interests issue

It’s especially noteworthy that the court in Navient seemed to care that the defendant does what many processors do; it services loans at the account level, rather than by individual loan. From this, healthcare providers might reasonably infer that account-level consent, disclosure, and other administrative housekeeping can potentially provide something of a safe harbor. That is, if providers are crystal clear that any information provided at any point in the patient journey will apply to the entirety of the business relationship, it may be helpful on many levels.

There are a great many regulatory hot-button issues that could be well managed by contemplating this simple idea -- keep account-level records, and make it clear to patients that this is your organization’s policy, and it’s in place in order to offer the best care and account service possible.

Keep -- and socialize -- a centralized command center

At least from a best-efforts perspective, it seems like being able to demonstrate intentional account-level processes and clear, up-front patient disclosures is an ounce of prevention that could get in front of many pounds of potential consent and due diligence issues.

Consider obtaining and/or maintaining account-level evidence of:

1. Express written consent to contact patients via phone, text and email that will apply to all future encounters and provide for the deployment of both healthcare and other communications, for a span of time that may extend past a patient’s active relationship with a provider.
2. Documentation of compliance with 501(r) assessments of charity care eligibility, so that those determinations can influence all encounters and color any efforts to collect payment in future.
3. Identity verification, address and other contact information, and any kind of manual or software-generated financial profiling information for those patients found to be ineligible for charity care, so that suitable self-pay arrangements can be made for aggregate balances due -- potentially to manage the recovery of an outstanding sum over several encounters.
4. Any payment arrangements, promissory notes, records of payment, and information arising from financial arrangements to satisfy outstanding self-pay balances.

Patients are prone to understand -- and even welcome -- a clearly-articulated, centralized model for records and account maintenance as one way providers are working to take a “whole patient” view of care. For providers, keeping aggregated, account-level records of consent, disclosures, compliance documentation and financial information is also a best practice for the sake of business efficiency, risk management, and effectiveness.