Guide to TCPA Regulation for Healthcare Providers for Text Message (SMS), Phone Call and Email Communication
Disclaimer: The information provided in this blog post is for general informational purposes only and should not be considered legal advice. Every legal situation is unique, and it is important to consult with a qualified attorney for personalized advice. No attorney-client relationship is formed by reading or accessing this blog post. While we strive to provide accurate and up-to-date information, we make no representations or warranties of any kind, express or implied, about the completeness, accuracy, reliability, suitability, or availability of the information contained in this blog post. Any reliance you place on the information is strictly at your own risk.
Communication Has Become More Convenient and Instantaneous than Ever Before
With the rise of mobile technology, text messaging and phone calls have become ubiquitous means of reaching out to individuals and businesses alike. However, as the volume of these communications continues to escalate, so do concerns about privacy, consent, and compliance with regulatory frameworks.
One such vital regulation that governs text and phone communications in the United States is the Telephone Consumer Protection Act (TCPA). Enacted in 1991, the TCPA aims to protect consumers from unsolicited and intrusive communications, setting guidelines for businesses to follow when engaging in text messaging and telephone campaigns. Failure to comply with TCPA regulations can lead to significant legal consequences, including hefty fines and damage to a company’s reputation.
By understanding TCPA compliance and its importance in text and phone communication, businesses can strike a delicate balance between efficient outreach and safeguarding consumer privacy. With a solid foundation of knowledge on TCPA regulations, organizations can navigate the complex landscape of modern communication, build positive customer relationships, and avoid the potential pitfalls that non-compliance can bring.
Telephone Consumer Protection Act (TCPA)
In general, the TCPA prohibits telemarketing calls to residential landlines using an artificial or prerecorded voice without the prior express written consent of the called party. Additionally, the TCPA prohibits calls and texts to cell phones using an artificial or prerecorded voice or an automatic telephone dialing system (ATDS) without the prior express consent of the called party. There are a few exemptions under the TCPA that apply to certain healthcare related calls:
- Calls to residential landlines using an artificial or prerecorded message that deliver a “healthcare” message from a HIPAA covered entity or business associate are exempt from the TCPA’s requirements and can be made without the consent of the called party.
- Calls and texts to cell phones using an artificial or prerecorded message or ATDS that deliver a healthcare message from a HIPAA covered entity or business associate are still subject to the TCPA but only require prior express consent of the called party (rather than prior express written consent which is required for telemarketing calls).
What is Considered a Healthcare Message Under the TCPA
To determine if a call qualifies as a healthcare message under the TCPA, three factors are considered:
- Whether it relates to a health-related product or service
- Whether there is an established relationship between the healthcare provider and the patient, and
- Whether it concerns the individual recipient’s healthcare needs.
The FCC clarified that providing a phone number to a healthcare provider constitutes prior express consent for healthcare calls subject to HIPAA if the calls are within the scope of the consent given. This interpretation also applies to general (non-healthcare) messages.
Certain healthcare treatment purposes are further exempted from the TCPA’s consent requirement for calls and texts to cell phones. These purposes include appointment and exam confirmations, wellness checkups, hospital pre-registration instructions, and more. Specific conditions must be met, such as using the wireless number provided by the patient, stating the healthcare provider’s name, excluding telemarketing content, and offering an opt-out mechanism.
A Note on Email Communication
The TCPA does not apply to email communications, even if received on a cell phone. However, if an email is converted to a text (SMS) message then courts have been inclined to view such messages as “calls” that would be subject to the requirements of the TCPA.
HIPAA Considerations
The TCPA and HIPAA requirements are independent from one another and must be analyzed separately depending on the nature of a message. The requirements under both will vary depending on the content of a given message, and there are categories of messages where no consent may be required under the TCPA, but where consent will be necessary under HIPAA. Thus, healthcare providers must also understand HIPPA requirements for phone and text communication. We discussed complying with HIPAA in more detail in a previous article you can find here.
Tailoring Consent and Compliance
Given the varying requirements of HIPAA and TCPA, and differing rules depending on message content, healthcare providers can ensure compliance by obtaining broad consent from patients to receive calls and unencrypted text messages.
Compliance with the Telephone Consumer Protection Act (TCPA) is Essential
The TCPA sets guidelines to safeguard consumer privacy and prevent unsolicited and intrusive communications. Non-compliance with TCPA regulations can lead to significant legal consequences and reputational damage for organizations. Understanding and adhering to TCPA requirements allows healthcare providers to strike a balance between efficient outreach and protecting patient privacy. It is important to note that TCPA and HIPAA requirements should be analyzed separately, considering the nature of the message. Healthcare providers must also comply with HIPAA regulations for phone and text communication. By obtaining broad consent from patients and ensuring secure communication channels, healthcare organizations can maintain compliance and protect patient privacy. It is crucial for organizations to consult with qualified legal professionals for personalized advice regarding TCPA and HIPAA compliance, as every legal situation is unique.