Healthcare payers, providers and Federally Qualified Health Centers (FQHCs) understand how important communication is to increase patient engagement and quality outcomes. However, sometimes uncertainty around laws and regulations such as the Telephone Consumer Protection Act (TCPA) deters organizations from implementing text message programs, thereby limiting their ability to effectively reach their entire patient population.
Established in 1991, the TCPA was designed to protect consumers—and patients—from telemarketing calls by prohibiting automated voice messages using auto-dialers without prior consent. Today, this covers SMS text messaging as well, given the proliferation of mobile phone use among consumers.
The TCPA guidelines that went into effect on July 20, 2023 added call limits and opt-out requirements for the following types of artificial or prerecorded voice calls:
- Non-commercial calls to a residence
- Commercial calls to a residence that do not include an advertisement or constitute telemarketing
- Tax-exempt nonprofit organization calls to a residence
- HIPAA-related calls to a residence.
Under these rules, to be exempt from the TCPA’s consent requirements, callers are limited to three calls per week (one per day) for healthcare-related calls. They must include an opportunity to opt out of prerecorded calls as part of the message.
The Importance of TCPA Compliance
As text messaging has become the preferred communication channel for many patients, healthcare organizations need to clearly understand how they can leverage automated patient outreach software to engage their patients without breaking the law.
While TCPA regulations are strict and noncompliance can result in multi-million dollar lawsuits, federal regulations for text messaging programs in healthcare aren’t as intimidating as many people perceive.
Read on to learn the truth about three common myths surrounding the TCPA and your text messaging program.
Myth #1: You Must Always Obtain Prior Written Consent to Text Patients
Truth: When the FCC strengthened TCPA regulations in 2012, they began requiring businesses to collect prior express written consent before sending automated telemarketing messages to consumers. However, healthcare-related messages—including text messages—are specifically exempt from collecting prior express written consent because they are not telemarketing messages.
If a patient has already provided their mobile phone number to a healthcare organization, they have already supplied the consent required under the TCPA. Often, contact information is collected as one of the first interactions with a healthcare payer, practice or Federally Qualified Health Center. Following this, healthcare organizations, have all the permission they need to start sending health-related messages using text messaging programs.
Patients must always be given the option to opt out of messages immediately, and it’s important that your healthcare organization has a well-documented process for tracking and honoring these requests in order to stay compliant with the TCPA.
Myth #2: The TCPA Prohibits Healthcare Organizations from Leveraging Text messaging Programs
Truth: Fortunately, healthcare is one of the least restricted industries for messages under the TCPA. In fact, the Federal Communications Commission (FCC) issued a healthcare exception in 2012 that allows healthcare organizations to deliver healthcare-relevant information via phone calls and text messaging programs, including:
- Appointment or exam confirmations and reminders
- Hospital pre-registration instructions
- Lab results
- Pre-operative instructions
- Post-discharge follow-up
- Prescription notifications
- Wellness checkups
It’s important to note that in order to abide by the exception, the content in text messaging programs may NOT be related to promotional marketing or financial collection. Rather, messaging in a physician text message program must be specifically relevant to the patient’s health and wellness, adhering to the following seven conditions:
- They must be sent only to the number provided.
- The name and contact information of the healthcare entity must be explicitly stated.
- Messages must be healthcare-related under HIPAA and may NOT include any promotional or financial solicitation.
- Messages must be concise, with voice messages under one minute and text messages under 160 characters.
- Message frequency must be no more than once per day and up to three times per week.
- All communications must offer an easy opt-out.
- Opt-out requests must be honored immediately.
Unlike traditional telemarketing messages, many consumers actually want to receive text messages related to their health, which is why the FCC classifies healthcare messages as informational under TCPA regulations.
Myth #3: Text Messaging Programs Are Not HIPAA-Compliant
Truth: The HIPAA Privacy Rule “allows covered healthcare providers to communicate electronically, such as through email, with their patients, provided they apply reasonable safeguards when doing so,” according to the U.S. Department of Health and Human Services.
Patients actually have the right to receive text messages from their healthcare provider should that be their preferred form of communication. While it’s true that healthcare organizations must take precautions to ensure the safety and security of patient information when communicating via text message programs, mobile messaging can certainly be HIPAA-compliant provided they deploy administrative, physical, and technical precautions.
Reasonable safeguards are subjective and heavily influenced by a number of factors, including the size of the healthcare organization and the nature of the text message. The same effort your healthcare organization takes to safeguard patient health information through electronic communication should be applied to your text messaging programs.
If your healthcare practice is considering or already implementing a text messaging program, be sure to have a clearly defined process for analyzing risk to ensure the integrity and confidentiality of protected health information – just as you would for any other communication platform.
Reduce Your Risk, Gain Optimized Operational Efficiency
Communication with patients is critical for advancing population health as an individual’s well-being is ultimately determined by decisions made outside of the clinical setting. Generally, patients want to share in the responsibility for their care. Therefore phone reminders and text messaging programs are playing a large role in connecting providers, insurance payers and patients.
While misinformation about the laws and regulations related to text messaging often prevents healthcare organizations from using technology to communicate with patients, both HIPAA and the TCPA encourage healthcare organizations to leverage mobile phones and text messaging programs to effectively manage the health of their populations. As the healthcare industry increasingly relies on mobile text messaging programs to improve patient care, you can minimize your liability under TCPA by understanding the healthcare exemption and abiding by messaging restrictions.
The truth is that text messaging programs aren’t as risky as they seem, even if you don’t have a legal background. In fact, forward-thinking healthcare organizations can’t afford not to text their patients. Text messaging boasts an opportunity to improve patient engagement and satisfaction, which is proven to drive quality outcomes. Schedule a demo with us today to learn how our HIPAA-compliant two-way text messaging solution increases operational efficiency and optimizes patient care.