Proceed with Caution: Navigating Safely Through the Intersection of TCPA and HIPAA

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The federal Telephone Consumer Protection Act (TCPA) prohibits companies from calling and texting consumers’ mobile devices with marketing messages without consumer consent.  A single violation (one text) can result in damages of up to $1,500, with some recent class actions settling in the tens of millions.  The Federal Communications Commission (FCC) has established an exemption for healthcare messages that are regulated through the Health Insurance Portability and Accountability Act (HIPAA).  On the surface, healthcare marketers appear to have broad latitude in calling and texting patients.  However, since HIPAA doesn’t specifically define what a healthcare message is, there remains a substantial ambiguity that can translate into significant risks.  That confusion can put providers and insurers on dangerous ground.

During the webinar, Manatt attorneys will explain how the TCPA works.They will also provide an in-depth look at the law’s purpose, terminology, and consent requirements and discuss the potential damages for those who don’t tread carefully through the TCPA minefield.  Participants will learn what type of messages are covered under the TCPA exemption, which type of consent each requires, and which approaches have been successful in getting the necessary consumer consent.  In addition, they will learn which health-care related messages are covered by the TCPA exemption and gain important insights into what is – and isn’t – defined as marketing under HIPAA.

The session will help clarify the ambiguities at the intersection of HIPAA and the TCPA and outline the key questions marketers should ask themselves before making automated calls to mobile devices or prerecorded calls to landlines.  It will cover the latest news out of the FCC and technological developments to avoid TCPA-related problems.  Then, through a series of case studies, it will delve into real-world scenarios and challenges, from appointment and refill reminders to market research calls.

Educational Objectives:
• Understand the TCPA, its purpose, and potential damages.
• Gain insight into the TCPA’s healthcare message exemption, the types of calls covered, and the types of consent required for commercial, noncommercial, and dual purpose messages.
• Learn how the HIPAA Privacy and Security Rules regulate how health insurers and providers use and disclose protected health information (PHI) – and how the disconnect between HIPAA and TCPA terminology creates compliance challenges.
• Discover the four key questions all HIPAA covered entities and their business associates should ask themselves before making automated calls to mobile devices or prerecorded calls to landlines.
• Explore the newest regulations and consent requirements – and find out if (and how) consent can be revoked.
• Examine real-world case studies to help evaluate the TCPA and HIPAA risks and the implications of several common call and message types, from promoting wellness programs to providing payment and appointment reminders to performing market research.

Who would benefit most from attending this program? 
In-house or external counsel and compliance officers responsible for guiding organizations on healthcare-related communications and/or telemarketing services; marketing, advertising, strategy, and communications executives in companies and organizations (and their business associates/vendors) providing health-care related message; payer and provider organizations and their business associates that communicate with their constituencies via phone call or texts.

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Marc Roth is a partner in the Advertising, Marketing & Media Division of Manatt, Phelps & Phillips LLP and co-chair of the TCPA Compliance and Class Action Defense Group, resident in the firm's New York office. He is a highly accomplished regulatory and transactional attorney with more than 20 years of experience in consumer advertising and marketing law. Mr. Roth has extensive experience advising clients on federal and state telemarketing laws. During his tenure with the Federal Trade Commission, he investigated and prosecuted abusers of the Telemarketing Sales Rule (TSR) and the FTC Act. Now, Mr. Roth counsels clients on how to develop and manage telemarketing programs that comply with the TSR, the Telephone Consumer Protection Act (TCPA) and applicable state laws. In regard to the TCPA, he advises clients on how to obtain proper consent to send text messages, place calls with pre-recorded messages and comply with do not call and call abandonment rules. Clients benefit from his insight into how the government views this highly sensitive industry. Mr. Roth is a frequent speaker at industry conferences and has authored articles on legal and business developments affecting the telemarketing industry. He serves on the advisory board of Bloomberg BNA's Social Media Law & Policy Report.

Mr. Roth earned a J.D. from Syracuse University, an M.A. of Public Administration from the Maxwell School of Citizenship and Public Affairs and a B.A. from Hobart College. He is admitted to practice in New York.


Ms. Christine M. Reilly is a litigation partner in the firm’s Los Angeles office and co-chair of the TCPA Compliance and Class Action Defense practice group. She represents clients in major litigation in a wide variety of areas, including consumer protection, unfair competition, and false and deceptive advertising. Ms. Reilly regularly defends clients in consumer class actions and investigations and proceedings initiated by the Federal Trade Commission, Federal Communications Commission, Consumer Financial Protection Bureau, and other federal and state regulatory agencies.  In addition to her litigation practice, Ms. Reilly regularly counsels clients on marketing and advertising issues and compliance with various consumer laws. She has represented companies in a variety of industries and service sectors, including sales and marketing, wireless/mobile, Internet, lead generation, manufacturing and electrical, software, telecommunications, television, music and entertainment, automotive parts and services, food, health and beauty.

Ms. Reilly is admitted to practice in California.  She earned her J.D. from the University of California at Berkeley, Boalt Hall School of Law and her B.A., with honors, from Cornell University.


Ms. Anne Karl focuses her practice on a variety of regulatory and transactional matters in the healthcare industry for providers, Medicaid managed care plans, and commercial health insurers. She assists providers and Medicaid managed care plans in negotiating, drafting, and securing regulatory approval for agreements, including those incorporating innovative gain-sharing arrangements. Ms. Karl also advises providers and payers on a wide array of payment and delivery system reform issues, including issues specific to Accountable Care Organizations, the Medicare Shared Savings Program, and other innovative payment models. She conducts research and policy analysis on a wide range of Medicaid payment issues, including pay-for-performance incentive payments and supplemental payments, and she has experience analyzing Medicaid waiver programs. Additionally, Ms. Karl assists commercial health insurers with a wide range of regulatory issues, including analyzing federal healthcare reform requirements pertaining to commercial plans.

Ms. Karl is admitted to practice in New York.  She earned her J.D. from Yale School of Law and her B.A., summa cum laude, from Dartmouth College.