As texting has become the preferred communication channel for many consumers, healthcare providers and organizations are incorporating a physician text message program into their operational workflows and population health outreach campaigns. From sending appointment reminders to using a physician text message program to conduct personalized chronic care outreach, patient and provider texting is streamlining care communication. The result is improved patient engagement and satisfaction, ultimately leading to higher quality outcomes.

Despite the added benefits of a physician text message program, many healthcare providers and staff are hesitant to implement such technology due to misinformation and fear around implications of the Telephone Consumer Protection Act (TCPA).

The TCPA was established to protect consumers from unsolicited telemarketing phone calls by prohibiting the use of automated voice messages without prior consent from the consumer. Originally mandated for landline phones, the TCPA now applies to mobile phones and text messaging which is important for entities planning to implement a physician text message program.

However, in 2012, the Federal Communications Commission (FCC) issued a healthcare exception, allowing covered entities to deliver calls and text messages related to health screenings, immunization reminders, and other healthcare-relevant information, provided they are compliant with the Health Insurance Portability and Accountability (HIPAA) and abide with the following seven conditions:

  1. They must be sent only to the number provided.
  2. The name and contact information of the healthcare entity must be explicitly stated.
  3. Messages must be healthcare related under HIPAA, and may NOT include any promotional or financial solicitation.
  4. Messages must be concise, with voice messages under 1 minute and text messages under 160 characters.
  5. Message frequency must be no more than once per day, and up to three times per week.
  6. All communications must offer an easy opt-out.
  7. Opt-out requests must be honored immediately.

(Read about 4 Steps to Avoid Non-Compliance with the TCPA in Your Physician Text Message Program.)

Confusion still remains for when and how healthcare organizations and providers comply with TCPA when using a physician text message program. Non-compliance can result in hefty fines and because regulations are strict, it can be helpful to look to the outcomes of law cases concerning TCPA and health care entities to determine how physician text message programs should be used in healthcare.

Here are three case law examples you should read before implementing a physician text message program.

 

Favorable Ruling for Rite Aid’s Flu Shot Reminder Calls

In 2014, Robert Zani filed a claim against Rite Aid after receiving a prerecorded flu shot on his cell phone. In 2018, the Second Circuit ruled that the healthcare message was exempt from TCPA restrictions because the content of the message was a healthcare message. Falling under the FCC’s Healthcare Exemption, the prerecorded call did NOT require express written consent, although it did require express consent which Zani provided when he gave his cell phone number to Rite Aid in connection with receiving a previous flu shot from Rite Aid.

Zani also signed various privacy notices when picking up prescriptions from Rite Aid in the same year, indicating that they “may contact [Zani] to provide refill reminders or information about treatment alternatives or other health related benefits and services that may be of interest.” Since the prerecorded flu shot reminder did NOT include promotional material about Rite Aid, the healthcare message fell within the FCC’s Healthcare Exemption.

Takeaway: Under the healthcare exemption, providing a cell phone number constitutes consent to receiving calls or texts for “care, services, or supplies related to the health of an individual”. When implementing a physician text message program, be sure that the content of your text messages is strictly relevant to the patient’s health and wellness, such as:

  • Appointment or exam confirmations and reminders
  • Wellness checkups
  • Hospital pre-registration instructions
  • Pre-operative instructions
  • Lab results
  • Post-discharge follow-up
  • Prescription notifications
  • Home healthcare instructions

 

HIPAA Violation results in Hospital Implementing New Safeguards for Leaving Voicemails

A hospital employee failed to observe minimum necessary requirements and reasonable safeguards when she left a voicemail on the home telephone number of a patient’s daughter, detailing the mother’s medical condition and treatment. Since the patient instructed the office to contact her directly on her work number, the Office for Civil Rights (OCR) indicated that the employee acted in violation of the privacy rule.

To resolve the issue, the hospital implemented new procedures, including training employees to leave the minimal necessary amount of information in telephone messages and to review patient registration information for communication directives. The new processes were integrated into refresher and annual compliance training courses, now required for all employees.

Takeaway: Phone calls made to both landlines and cell phones must still comply with HIPAA’s reasonable safeguard rules that require covered entities to deploy administrative, physical, and technical precautions when communicating via electronic media with patients to ensure the integrity and confidentiality of protected health information.

Additionally, in a physician text message program, every effort should be made to send calls and messages only to the number provided by the patient. In the event a number has been reassigned, healthcare entities are provided a safe harbor for the first call but thereafter, they should be aware the number is reassigned. In addition, prerecorded voice messages (for cell phones and residential landlines) must be under one minute in length.

 

Unsolicited Advertising Text Messages Result In Significant Fines

In 2013, Kimberly Ferencz and Deborah Birrane pursued a class action against International Men’s Clinic Consultants LLC, Universal Men’s Clinic, Hawaii Male Clinic, Washington Clinic Consultants LLC, MJD Medical P.S., INC., Terry Harmon, and Tom Harmon, as well as all affiliates and successors for receiving at least one text message to their cell phones containing advertisements for the defendants clinics without prior express consent.

The defendants used an automated system capable of sending million of texts a month to consumers, containing unsolicited advertising and public relations messaging. The plaintiffs never provided express consent, nor were they given the option to opt-out of such messages. The defendants were found guilty and the case settled for $3.5 million.

Takeaway: In the case above, the defendant used an automated dialer to generate numbers rather than to call numbers provided by the consumers. When implementing a physician text message program, a phone number must be provided to the healthcare entity in order to send calls or texts related to the “care, services, or supplies related to the health of an individual”. And, if you want to send promotional advertisements, telemarketing messages or billing-related information, you MUST collect written expressed consent for those specific purposes.

In the case where you receive express or written consent, all communications must provide a clear option for recipients to revoke their consent via opt-outs. Whether it’s a STOP opt-out via text, or an alternative option to express a desire to receive no more messages from the caller, opt-outs must be honored immediately. As you design your physician text message program, you must establish policies and procedures to manage and update your notification systems based on patient opt-outs.

 

For more information about how to comply with the TCPA in your physician text message program, talk to one of our experts today.

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