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Whitepaper | April 2009

"This Call May Be Recorded…" Legal Issues Related to Call Recording

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Disclaimer: The information presented in this whitepaper comes from years of experience in the contact

center industry and direct research on the subjects of state recording laws and compliance standards.

However, while information is believed to be accurate at the time of printing, it does not constitute legal

advice. We strongly encourage anyone seeking more detailed information or firm validations of our

findings to enlist the legal services of a professional who is versed in the requirements for their specific

industry and/or state.

© Copyright 2009, CallCopy, Inc. All rights reserved.

No part of this document may be transmitted or distributed, or copied, photocopied, scanned, reproduced, translated, microfilmed, or otherwise duplicated on any medium without written consent of CallCopy. If written consent is given, the same confidential, proprietary, and copyright notices must be affixed to any permitted copies as were affixed to the original. The information contained in this document does not constitute legal advice, and should not be considered a replacement for sound legal counsel. CallCopy shall be in no way liable for any use or misuse of the information presented herein.

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Table of Contents Introduction ........................................................................................................................... 1

Motivations for Call Recording .............................................................................................. 2

Dispute Resolution ........................................................................................................................................... 2 Compliance with Industry Regulations .................................................................................................................. 2 Insurance Claims ................................................................................................................................................... 2 Billing Support ....................................................................................................................................................... 2

Agent Training ................................................................................................................................................... 2

Industry Regulations ....................................................................................................................................... 3

Legal Issues Related to Call Recording ................................................................................ 4

Two-Party States ............................................................................................................................................... 4

Interstate Calling ............................................................................................................................................... 5 Rock, Paper, Scissors? ......................................................................................................................................... 5

Obtaining Consent / Caller Notification ................................................................................................... 5 Employer Agreements ........................................................................................................................................... 5 Caller Notification .................................................................................................................................................. 6

Beep Tones................................................................................................................................................................... 6 Recommendations ............................................................................................................................................ 6

Notify Your Callers ................................................................................................................................................ 6 Inbound ......................................................................................................................................................................... 6 Outbound ...................................................................................................................................................................... 6

Ensure Notification by Agents ............................................................................................................................... 7 Automated Scripts .................................................................................................................................................... 7 Quality Monitoring ................................................................................................................................................... 7 Speech Analytics ........................................................................................................................................................ 7

Recording Blocks and Filters ................................................................................................................................. 8

Industry Regulations ............................................................................................................. 9

Cross-Industry ................................................................................................................................................... 9 Payment Card Industry (PCI) Compliance ............................................................................................................ 9

Implications/requirements .................................................................................................................................. 9 Who does it apply to? .............................................................................................................................................. 9

Public Company Accounting Reform and Investor Protection Act (Sarbanes-Oxley) .......................................... 10 Implications/requirements ................................................................................................................................ 10 Who does it apply to? ............................................................................................................................................ 10

Telemarketing / Sales .................................................................................................................................. 11 Telemarketing Sales Rule (TSR) ......................................................................................................................... 11

Requirements ........................................................................................................................................................... 11 Who does it apply to? ............................................................................................................................................ 13

Telephone Consumer Protection Act (TCPA) ...................................................................................................... 14 Implications/requirements ................................................................................................................................ 14 Who does it apply to? ............................................................................................................................................ 14

Financial Services .......................................................................................................................................... 15 Truth in Lending Act (TILA) ................................................................................................................................. 15

Implications/requirements ................................................................................................................................ 15 Who does it apply to? ............................................................................................................................................ 15

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Collections ........................................................................................................................................................ 16 Fair Debt Collection Practices Act (FDCPA) ....................................................................................................... 16


Healthcare ........................................................................................................................................................ 18 Health Insurance Portability and Accountability Act (HIPPA) Privacy Rule ......................................................... 18


Medicare Improvements for Patients and Providers Act (MIPPA) ....................................................................... 19 Implications/requirements ................................................................................................................................ 19 Who does it apply to? ............................................................................................................................................ 19

About CallCopy ................................................................................................................... 20

"This Call May Be Recorded…" 1

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Introduction We’ve all heard the announcement: “This call may be recorded for quality and training purposes.” Many

companies across diverse industries record some or all of their telephone traffic. But there are some

legal issues that must be addressed before implementing a recording program. For example, some

states have laws requiring consent from both parties being recorded. If there is not informed consent,

you may be breaking the law in many states by recording a call to or from a person in that state. Other

regulations, such as the compliance standards set by the Payment Card Industry (PCI) Security Standards

Council, have restrictions on the storage of and access to data that contains payment card account

information.

Recorded calls and computer screens can contain credit card numbers and other sensitive data, and the

recordings may be subject to the same security standards as other information systems. The jury is still

out on the full impact these regulations have on call recording applications. In this whitepaper, we will

take a deeper look at the restrictions that may put your call logger at risk, and effective ways to mitigate

that risk.

2 CallCopy, Inc., 1177 Olentangy River Rd, Columbus, OH 43212 Tel: 888.922.5526 | Email: [email protected] | www.callcopy.com

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Motivations for Call Recording There are many reasons that companies record calls. For some it’s not a matter of choice – industry

regulations mandate that they record some or all of their customer transactions. For others, call

recording is a vital part of coaching and training programs. Properly utilizing recordings can yield

tremendous returns in regard to agent development.

Dispute Resolution

Most companies providing sales and service support via the telephone can benefit by using recorded

calls to resolve disputes. For companies that are recording to meet industry regulations, these same

recordings have potential for use in dispute resolution.

Compliance with Industry Regulations

While many industry regulations, such as the Fair Debt Collection Practices Act (FDCPA), do not explicitly

require that calls be recorded, a recorded call may be used to settle a claim against a company’s

behavior in relation to the act. While the perceived need for this recording is subjective, the benefit

from being able to effectively resolve or settle this type of dispute is clear.

Insurance Claims

Recorded calls can also be used to resolve disputes related to insurance claims, where a recording of the

primary claim is leveraged to validate what coverage was granted or denied based on the information

provided by the caller at the time of the claim. An insurance company may have its own policies

regarding the need for recording and acceptable use of recorded calls.

Billing Support

The Telemarketing Sales Rule (TSR) is effective in preventing many billing disputes by requiring full and

complete disclosure of the terms of the sale, and express verified consent for payment. However, as

many a call center manager will tell you, customers are prone to forgetting that they gave consent and

agreed to the terms of sale. Using recordings in billing support is an effective way to resolve disputes.

And, in the event your agent did err in his or her sales efforts, the ability to properly determine the

correct course of action for the customer is paramount to retaining that customer.

Agent Training

It may be the most well known recording of all time. Many can recite its words by heart. It is heard

daily by millions: “This call may be monitored or recorded for quality and training purposes.”

Using pre-recorded calls in the training room is preferred over live monitoring. With recorded calls, you

are able to ensure that the content of the call is appropriate for where you are in your training


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curriculum. By doing this type of observation in the training room and not on the live call floor you are

able to provide a more consistent learning experience. Because all agents are learning from the same

calls and the same agents, you eliminate the randomization and the wild cards inherent in live

monitoring.

Industry Regulations

Many industries have federal and other regulations that make call recording a necessity. Financial

institutions need records of all customer transactions, including telephone calls. Retailers,

telecommunications companies, catalog houses, and ecommerce businesses need to record sales

verifications.

For more detailed information, please see the Industry Regulation section.


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Legal Issues Related to Call Recording Each state has its own laws regarding the recording of telephone calls. The key differentiator in these

laws is the number of parties to the call that must provide informed consent to the recording. In most

states, only one party must consent. However, in the remaining twelve states, all parties must consent.

Two-Party States

Although commonly referred to as “two-party”, the states below actually require that all parties on a

call consent to recording. There are 12 two-party states in the United States:

California

Connecticut

Florida

Illinois

Maryland

Massachusetts

Michigan

Montana

Nevada

New Hampshire

Pennsylvania

Washington

Figure 1: States requiring two-party consent


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Interstate Calling

Questions sometimes arise when a person in a one-party state calls a person in a two-party state. For

example, a call center agent on Ohio, a one-party state, calls a person in neighboring Pennsylvania, a

two-party state. If the recording takes place in Ohio, is it under Ohio’s laws and jurisdiction, or do

Pennsylvania’s laws apply to its citizen? If you must record the call for compliance or regulatory

requirements, you may be at risk with federal legislation if you do not record the call.

Rock, Paper, Scissors?

Generally speaking, intrastate calls (calls within a single state) fall under the jurisdiction of that state. All

interstate calls (state-to-state calls) are subject to federal law. However, most federal laws do not

supersede state law if the state law is more restrictive. Because of the rock, paper, scissors question, it is

best to evaluate the laws of both states, as well as federal laws when recording interstate calls.

Obtaining Consent / Caller Notification

There are a number of methods for notifying callers that their conversation with your company is being

recorded. There are also many ways to inform your employees.

Employer Agreements

Employer-Employee Agreements are perhaps the most suitable means of gaining consent from your

employees. Many companies have an employer-employee agreement that specifically states that the

employee understands that their company phone calls may be recorded. This is typically a signed

Which Law Applies?

Federal Law

State 2 Law

State 1 Law


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agreement. If consent to be recorded is an item that is included in an employee handbook or similar

document, the document should include a signatory page to verify the employee has received and read

the handbook.

Caller Notification

Inbound callers are usually notified through an announcement stating “This call may be monitored or

recorded.” One thing to consider is where in the call path the announcement is played. It is often

played after any touch-tone or voice prompting and before the caller is connected to an agent or a

queue. Playing the notification as a message in queue is not recommended, as this will result in either

bypassing the message if the caller is connected directly to an agent, or redundant announcements.

Beep Tones

Beep tones may also be used as a means of notifying callers that recording is taking place. There

are specific requirements for a beep tone related to its frequency and duration: the beep tone

must be within 1260-1540 Hertz, and it must last .17 to .25 seconds. It must be played every 12

to 15 seconds while the call is being recorded, and it must be audible to all parties being

recorded.

Recommendations

Notify Your Callers

There are many ways to notify your callers on both inbound and outbound calls.

Inbound

Most inbound callers are notified of the potential for recording by an automated message. Yes,

this is the famous “This call may be recorded…” announcement!

Outbound

Outbound notification is very different. If you are using a predictive dialer, or other automated

dialing technology, you may have the ability to insert a recorded notification after your

customer picks up and before the call is connected to your agent, but do you want to? In a sales

or collections environment this is not an ideal way to begin your interaction.

In outbound calling, we recommend you have your agents notify the customer. This can be

done immediately at the beginning of the call through a scripted introduction. For example,

“Hello, this is Rick with CallCopy calling on a recorded line…”

One item of caution for this type of notification: if you are speaking with more than one party, it

may be necessary to restate the greeting for all parties. For example, if a person answers, hears

your greeting, and then hands the phone to another member of the household you should

restate the greeting when the other party comes on the line.


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If you do not want to open your call with a recording notification, we recommend you do not

record outbound calls to two-party states, or that you use a record on-demand function to

record only the portions of the call that are required, and do so after a different notification

script is used later in the call.

Ensure Notification by Agents

For any situations where your agents are providing the notification, you should have checks and

balances in place to ensure your staff is adhering to the requirements. Using tools in your CRM or other

systems to present scripts or reminders to the agent is helpful. You can also check for script adherence

in your quality monitoring and use speech analytics software to find calls that do – or do not – contain

the required scripts.

Automated Scripts

Even your best agent is prone to forget something some time. If your technology permits, you

can create automated scripting flows or reminders in a CRM application. Having reminders or

guided scripts will help minimize human error. It also reduces the training requirement. Without

reminders, your agents must always remember to recite a notification script. To train a person

to do this requires repetition of the learning exercise in order for the script to stick in long-term

memory. If agents are trained to follow the scripted flow, less repetition is needed in learning

the correct verbiage for the actual scripts.

Quality Monitoring

If script adherence is a critical part of job performance, it should be a critical field on an

evaluation form. Some quality management systems, including CallCopy’s cc: Discover and cc:

Quality, will allow you to set dynamic point values for each question / response in the form. This

enables you to set a higher point value and add weight to questions that have a significant

impact on your business. You can also consider the use of an auto-fail flag to further weight the

scoring.

By including this metric on your evaluation forms, you should then be able to report on this

specific metric to identify trends in agent or team adherence. This provides valuable insight in

regard to who is or isn’t following the required scripting.

Speech Analytics

Speech analytics is a technology that will analyze recorded calls and spot key words and phrases.

A key differentiator among the available solutions is the method of analysis: large vocabulary

continuous speech recognition (LVCSR), or phonetic-driven engines. Both types of analytics

should be sufficient for script adherence measurements, identifying calls where scripts are or

are not used. One key to maximizing the effectiveness of speech analytics applications is to

control the consistency in how the script is read. The longer the phrase that is to be spotted,


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the lesser the chance for false positives. Eliminating variations from the script is crucial. For

example, you would not want one agent to say “Is it OK if I record this call” while another says “I

would like to record this call now, is that alright?” While speech analytics technology is not 100%

accurate, it can be effective in identifying trends in agent and team performance.

Recording Blocks and Filters

A final recommendation for managing recording to and from two-party states is through recording

blocks and filters. This is a feature that may not be available in all call logging systems. This type of

functionality would use call data, such as ANI (automated number identification, very similar to caller ID)

or DNIS (dialed number identification service, a number identifying what number was dialed by the

caller). Other data may be used such as routes in the phone system (sometimes called applications,

vectors, VDN, depending on the phone system in use).

By filtering calls to or from two-party states, and then using on-demand recording in conjunction with

proper scripting, you will be able to minimize or eliminate the risk of recording calls without proper

consent while still recording the calls or portions of calls that are needed for compliance.


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Industry Regulations Many industries have federal and other regulations that make call recording a necessity. For example,

financial institutions are required to maintain records of all customer transactions, including telephone

calls. Retailers, telecommunications companies, catalog houses, and ecommerce businesses need to

record sales verifications.

Cross-Industry

Payment Card Industry (PCI) Compliance

The Payment Card Industry (PCI) Data Security Standards (DSS) have gained significant attention in the

call center market. Founded by American Express, Discover Financial Services, JBC, MasterCard

Worldwide, and Visa International, the PCI Security Standards Council’s mission is “To enhance payment

account data security by fostering broad adoption of the PCI Security Standards”.

Implications/requirements

Identity theft is pervasive in today’s economy, and consumers need to be protected. The PCI DSS

take great measures to help safeguard consumer account information and minimize or eliminate

the potential for identity theft. The PCI DSS require that companies:

Install and maintain a firewall configuration to protect cardholder data.

Do not use vendor-supplied defaults for system passwords and other security

parameters.

Protect stored cardholder data.

Encrypt transmission of cardholder data across open, public networks.

Use and regularly update anti-virus software.

Develop and maintain secure systems and applications.

Restrict access to cardholder data by business need-to-know.

Assign a unique ID to each person with computer access.

Restrict physical access to cardholder data.

Track and monitor all access to network resources and cardholder data.

Regularly test security systems and processes.

Maintain a policy that addresses information security.

Who does it apply to?

PCI security standards apply to all merchants and organizations that store, process or transmit

this data, regardless of size or number of transactions. Compliance with the PCI set of standards

is mandatory for their respective stakeholders, and is enforced by the major payment card

brands who established the Council.


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Exceptions

PCI DSS requirements are only applicable if a PAN (Primary Account Number) is stored,

processed, or transmitted. Otherwise, PCI DSS requirements do not apply.

Public Company Accounting Reform and Investor Protection Act (Sarbanes-Oxley)

The Sarbanes-Oxley Act of 2002 (Sarbox or SOX), also known as the Public Company Accounting Reform

and Investor Protection Act of 2002, is a federal law implemented in response to corporate accounting

failures such as those experienced at Enron, WorldCom, Tyco, and Adelphia. The Act is wide ranging,

with a strong focus on accounting oversight. Call recording is beneficial to companies working to meet

Sarbanes-Oxley Act requirements, as it provides an auditable source of transactional information.


Sarbanes-Oxley is a far-reaching legislation, with implications for all public companies. Highlights

requirements include:

Corporate Disclosure and Governance

o CEO and CFO certification of financial reports

o Real time disclosure of material events

o Material correcting adjustments identified by auditors; Off-balance sheet

transactions; Pro forma financial information

o Revised audit committee independence standards and responsibilities

Insider Accountability and Disclosure Obligations

o Disgorgement of compensation and trading profits if financial reports restated

o Accelerated deadline for insiders to report changes of beneficial ownership

o Company loans to insiders prohibited

o Insider trades restricted during pension fund blackout periods

o Disclosure of code of ethics for senior financial officers

Auditor Independence

o Non-audit services restricted; Rotation of audit partner

o Auditor conflicts of interest; Improper influence

o Increase auditor oversight


The Act applies to all public companies that are required to file periodic reports with the SEC

and contains a number of significant changes relating to the responsibilities of directors and

officers and the reporting and corporate governance obligations of SEC-reporting companies.


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Telemarketing / Sales

Telemarketing Sales Rule (TSR)

The Federal Trade Commission (FTC) issued the amended Telemarketing Sales Rule (TSR) on January 29,

2003. This legislation gives the FTC and state attorneys general law enforcement tools to combat

telemarketing fraud, give consumers added privacy protections and defenses against unscrupulous

telemarketers, and help consumers tell the difference between fraudulent and legitimate telemarketing.

Requirements

Disclosure of Material Information

The TSR requires sellers and telemarketers to clearly provide certain information before the

consumer pays for the goods or services, allowing them to make an informed purchase decision.

Sellers and telemarketers may provide the information either orally or in writing. Recorded

verification is often the preferred method, as it enables the seller to close the sale on the spot.

The following information must be disclosed:

Cost and quantity.

Material restrictions, limitations, or conditions.

No-refund policy.

Prize promotions.

Credit card loss protection.

Negative option features.

Outbound Telemarketing Disclosures

Outbound telemarketers must promptly disclose the following information truthfully, clearly,

and conspicuously:

The identity of the seller.

That the purpose of the call is to sell goods or services.

The nature of the goods or services being offered.

In the case of a prize promotion, that no purchase or payment is necessary to

participate or win, and that a purchase or payment does not increase the chances of

winning.

Outbound Calls to Solicit Charitable Contributions Disclosures

Telefunders must make two disclosures promptly, clearly and conspicuously:

The identity of the charitable organization on whose behalf the solicitation is being

made.

That the purpose of the call is to solicit a charitable contribution.


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Misrepresentations

The TSR prohibits sellers and telemarketers from making false or misleading statements to

induce anyone to pay for goods or services or make a charitable contribution.

Payment Methods Other than Credit or Debit Cards

Because payment methods other than credit or debit card lack built-in protection against

unauthorized charges and dispute resolution rights, sellers and telemarketers must meet a

higher standard for proving authorization. In lieu of written authorization, sellers may utilize

audio recording of the consumer giving express oral authorization. The audio recording must

demonstrate that the consumer received and understands the following pieces of information:

The number of debits, charges, or payments (if more than one).

The date the debits, charges, or payments will be submitted for payment.

The amount of the debits, charges, or payments.

The customer or donor’s name.

The customer or donor’s billing information, identified in specific enough terms that the

consumer understands which account will be used to collect payment for the

transaction.

A telephone number that is answered during normal business hours by someone who

can answer the consumer’s questions.

The date of the consumer’s oral authorization.

The Rule also requires that audio recorded oral authorization be made available upon request to

the customer or donor, as well as to the customer or donor’s bank or other billing entity.

Obtaining Consent in Telemarketing Transactions Involving Pre-acquired Account Information

Pre-acquired account information is any information that enables sellers and telemarketers to

place a charge against a consumer’s account without getting the account information directly

from the consumer during the transaction for which the account will be charged. When pre-

acquired account information is used and the offer includes a free-to-pay conversion feature,

telemarketers must:

Obtain from the customer at least the last four digits of the account number to be

charged

Obtain the customer’s express agreement to be charged for the goods or services and to

be charged using the account number for which the customer has provided at least the

last four digits

Make and maintain an audio recording of the entire telemarketing transaction


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Recordkeeping Requirements

The TSR requires most sellers and telemarketers to maintain the following records that relate to

their telemarketing activities for two years from the date that the record is produced:

Advertising and promotional materials

Information about prize recipients

Sales records

Employee records

All verifiable authorizations or records of express informed consent or express

agreement.

If authorization is via audio recording, a copy of the recording must be maintained. While the

recording may be retained in any format, it must include all the information that must be

disclosed to the consumer, as well as the consumer’s oral authorization.


With some exceptions, any businesses or individuals that take part in selling or telemarketing

involving interstate telephone calls must comply with the TSR. This applies to both inbound and

outbound calls.

Exceptions

Some businesses are not subject to the FTC’s jurisdiction, and not covered by the TSR. However,

any individual or company that contracts with one of these three types of entities to provide

telemarketing services must comply with the TSR.

Banks, federal credit unions, and federal savings and loans.

Common carriers (such as long-distance telephone companies and airlines) when they

are engaging in common carrier activity.

Non-profit organizations.

Similarly, some calls also are not covered by the Rule, regardless of whether the entity making

or receiving the call is covered. These include:

Unsolicited calls from consumers.

Calls placed by consumers in response to a catalog.

Business-to-business calls that do not involve retail sales of nondurable office or

cleaning supplies.

Calls made in response to general media advertising (with some exceptions).

Calls made in response to direct mail advertising (with some exceptions).

Calls relating to the sale of 900-Number pay-per-call services (partial exemption).


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Calls relating to the sale of franchises or certain business opportunities (partial

exemption).

Calls that are part of a transaction that involves a face-to-face sales presentation (partial

exemption).

Telephone Consumer Protection Act (TCPA)

The Telephone Consumer Protection Act (TCPA), passed in 1991, regulates general consumer contact,

most notably “Do Not Call” requirements. The TCPA does include provisions regarding the use of pre-

recorded messages in outbound calling, but this is different than the recording of a phone call.


From a telemarketer's perspective, the most significant part of the TCPA regulations concern

commercial solicitation calls made to residences. Those making the calls are required to:

Limit the calls to the period between 8 A.M. and 9 P.M.

Maintain a "do not call list" and honor any request to not be called again.

Have a clearly written policy, available to anyone upon request.

Have a clearly defined training program for their personnel making the telephone

solicitations.

In the case of a contracted company, forward all "do not call” requests to the company

on whose behalf they are calling. It is that company that is legally liable under the TCPA,

not the contractor.

Exceptions

A call is exempt from the TCPA if it:

Is made on behalf of a non-profit organization.

Is not made for a commercial purpose.

Does not include an unsolicited advertisement.

Is made to a consumer with whom there is an established business relationship.


The TCPA regulations apply to common carriers as well as to other marketers.


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Financial Services

Truth in Lending Act (TILA)

The Truth in Lending Act (TILA) was enacted on May 29, 1968, as title I of the Consumer Credit

Protection Act. The TILA, implemented by Regulation Z (12 CFR 226), became effective July 1, 1969. The

act is designed to protect consumers in credit transactions by requiring clear disclosure of key terms of

the lending arrangement and all costs.


The TILA is intended to ensure that credit terms are disclosed in a meaningful way, so that

consumers can better compare credit terms. Prior its enactment, it was difficult for many

consumers to compare loans because of the varying credit terms and rates, and because they

were seldom presented in the same format. In addition to providing consistent credit

terminology and expressions of rates, and a uniform system for disclosures, TILA:

Protects consumers against inaccurate and unfair credit billing and credit card practices;

Provides consumers with rescission rights;

Provides for rate caps on certain dwelling-secured variable rate loans; and

Imposes limits on home equity lines of credit and certain closed-end home mortgages.


In general, the TILA applies to individuals or businesses that offer or extend credit when four

conditions are met:

The credit is offered or extended to consumers.

The offering or extension of credit is done regularly (generally, more than 25 times

annually).

The credit is subject to a finance charge or is payable by a written agreement in more

than 4 installments.

The credit is primarily for personal, family, or household purposes.

If a credit card is involved, however, certain provisions apply even if the credit is not subject to a

finance charge, or is not payable by a written agreement in more than 4 installments, or if the

credit card is to be used for business purposes.

In addition, certain requirements apply to persons who are not creditors but who provide

applications for home equity plans to consumers.

Exemptions

The following transactions are exempt from Regulation Z:

Credit extended primarily for a business, commercial, or agricultural purpose.


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Credit extended to other than a natural person (including credit to government agencies

or instrumentalities).

Credit in excess of $25,000 not secured by real property or personal property used or

expected to be used as the consumer’s principal dwelling.

Public utility credit.

Credit extended by a broker-dealer registered with the Securities and Exchange

Commission (SEC) or the Commodity Futures Trading Commission (CFTC), involving

securities or commodities accounts.

Home fuel budget plans.

Certain student loan programs.

Collections

Fair Debt Collection Practices Act (FDCPA)

The Fair Debt Collection Practices Act (FDCPA), effective March 20, 1978, is designed to eliminate

abusive, deceptive and unfair debt collection practices. While the FDCPA does not require call recording,

a recorded call may be used to settle a claim against a collector’s behavior in relation to the act.


Under FDCPS regulations, debt collectors may not:

Harass, oppress, or abuse you or any third parties:

o Use threats of violence or harm.

o Publish a list of names of people who refuse to pay their debts (but they can

give this information to the credit reporting companies).

o Use obscene or profane language.

o Repeatedly use the phone to annoy someone.

Make false statements:

o Falsely claim that they are attorneys or government representatives.

o Falsely claim that you have committed a crime.

o Falsely represent that they operate or work for a credit reporting company.

o Misrepresent the amount you owe.

o Indicate that papers they send you are legal forms if they aren’t.

o Indicate that papers they send to you aren’t legal forms if they are.

o Falsely claim that you will be arrested if you don’t pay your debt.

o Falsely claim that they’ll seize, garnish, attach, or sell your property or wages

unless they are permitted by law to take the action and intend to do so.

o Falsely claim that legal action will be taken against you, if doing so would be

illegal or if they don’t intend to take the action.


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Give false credit information about you to anyone, including a credit reporting company.

Send you anything that looks like an official document from a court or government

agency if it isn’t.

Use a false company name.

Engage in unfair practices:

o Try to collect any interest, fee, or other charge on top of the amount you owe

unless the contract that created your debt – or your state law – allows the

charge.

o Deposit a post-dated check early.

o Take or threaten to take your property unless it can be done legally.

o Contact you by postcard.


Covered Debt

The FDCPA applies only to the collection of debt incurred by a consumer primarily for personal,

family or household purposes. It does not apply to the collection of corporate debt or to debt

owed for business or agricultural purposes.

Covered Debt Collectors

Under FDCPA, a debt collector is defined as any person or institution that regularly collects debts

for an unrelated institution. This includes reciprocal service arrangements where one institution

assists another in collecting a defaulted debt from a customer who has moved.

Debt Collectors That Are Not Covered

Under the FDCPA, an institution is not a debt collector when it collects:

Another's debts in isolated instances.

Its own debts under its own name.

Debts it originated and then sold but continues to service (for example, mortgage and

student loans).

Debts that were not in default when they were obtained.

Debts that were obtained as security for a commercial credit transaction.

Debts incidental to a bona fide fiduciary relationship or escrow arrangement.

Debts regularly for other institutions to which it is related by common ownership or

corporate control.

Debt collectors that are not covered also include:

Officers or employees of an institution who collect debts owed to the institution in the

institution's name.

Legal process servers.


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Healthcare

Health Insurance Portability and Accountability Act (HIPPA) Privacy Rule

The HIPPA Privacy Rule provides federal protections for personal health information held by covered

entities and gives patients an array of rights with respect to that information. At the same time, the

Privacy Rule is balanced so that it permits the disclosure of personal health information needed for

patient care and other important purposes.


For all covered entities, the HIPPA Privacy Rule requires activities, such as:

Notifying patients about their privacy rights and how their information can be used.

Adopting and implementing privacy procedures for its practice, hospital, or plan.

Training employees so that they understand the privacy procedures.

Designating an individual to be responsible for seeing that the privacy procedures are

adopted and followed.

Securing patient records containing individually identifiable health information so that

they are not readily available to those who do not need them.


The Privacy Rule applies to health plans, health care clearinghouses, and to any health care

provider who transmits health information in electronic form in connection with transactions

regulated under HIPAA.

Health Plans

Health plans include health, dental, vision, and prescription drug insurers, health maintenance

organizations (HMOs), Medicare, Medicaid, Medicare+Choice and Medicare supplement

insurers, and long-term care insurers (excluding nursing home fixed-indemnity policies). Health

plans also include employer-sponsored group health plans, government and church-sponsored

health plans, and multi-employer health plans.

Health Care Clearinghouses

Health care clearinghouses are entities that process nonstandard information they receive from

another entity into a standard, or vice versa.

Health Care Providers

Every health care provider, regardless of size, that electronically transmits health information in

connection with certain transactions, is a covered entity. These transactions include claims,

benefit eligibility inquiries, referral authorization requests, or other transactions for which HHS

has established standards under the HIPAA Transactions Rule.


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Medicare Improvements for Patients and Providers Act (MIPPA)

The Medicare Improvements for Patients and Providers Act of 2008 (MIPPA) established new

restrictions on how agents can market their Medicare-related products. In order to “protect Medicare

beneficiaries from deceptive or high-pressure marketing tactics”, many of the new MIPPA restrictions

target areas (such as unsolicited calls) that have been a source of abusive sales practices in the past.


Effective September 18, 2008, prior to any marketing appointment, the beneficiary must agree

to the scope of the appointment and that agreement must be documented by the plan. When

scheduling appointments over the phone, a recording of the call provides the most efficient

method of obtaining this documentation.


MIPPA regulations apply to all health plans that sponsor:

Medicare Advantage (MA)

Part D Prescription Drug Plans (PDP)


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Documents

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