A recent Supreme Court ruling redefining what constitutes an autodialer under federal law may provide healthcare organizations with even greater latitude to send automated text messages to patients.
In April, the court ruled in favor of Facebook in a case involving the Telephone Consumer Protection Act (TCPA) that said the company didn’t have to abide by TCPA because the messaging system it uses doesn’t randomly or sequentially store or generate a telephone number. The new ruling essentially means that the TCPA’s definition of an automatic telephone dialing system (autodialer) is substantially narrowed, thus offering greater leeway to businesses and healthcare providers when sending out automated text messages, according to attorneys with the law firm Foley & Lardner in their Health Care Law Today blog.
Before this, companies ran the risk of running afoul of TCPA if the text messages or calls were made with devices that simply had the capacity to store and automatically dial a phone number.
Foley & Lardner called the Supreme Court’s rolling back of TCPA “a significant win for TCPA defendants” and said that companies, including healthcare providers, may now be able to send text messages without needing prior consent from patients.
“Importantly, the ruling does not distinguish between service-related (purely informational) messages and marketing messages for autodialer purposes, and accordingly applies to both non-telemarketing and telemarketing text messages and phone calls,” they said. “As a result, as long as the dialing equipment does not use a random or sequential number generator, a digital health company will not be required to obtain ‘prior express written consent’ from their patients before sending them a text, provided other aspects of the TCPA are complied with.”
Prior to this, TCPA stipulated that companies obtain consent from consumers prior to sending any sort of text or automated telephone messages, unless an exemption applied. These exemptions included the following:
- Appointment and exam confirmations and reminders
- Wellness check-ups
- Hospital pre-registration instructions
- Pre-operative instructions
- Lab results
- Post-discharge follow-up intended to prevent readmission
- Prescription notifications
- Home healthcare instructions
Items not covered under the law’s previous exemption included healthcare messages related to accounting, billing, debt collection, and other financial content.
However, text messages must still comply with HIPAA and security requirements. Texts that contain protected health information (PHI) still require that providers: warn patients of risk of communicating for healthcare purposes using unencrypted text messaging; obtain patients’ preference and consent; and document the patient’s preference and consent.
Still, whether or not you officially need prior consent, it’s always a good idea to cover your bases and have patients fill out a consent form before you send out messages. Great opportunities to get consent include:
- Asking during the appointment scheduling
- On your digital intake forms
- In the waiting room or exam room
To learn more about how various regulations may impact your texting with patients, check out the guide, “Become a Text and Email Compliance Guru.”