In an age where providers are increasingly taking the management of their patient’s health online and out of the doctor’s office, the creation of scalable and nimble patient engagement tools can serve to improve patient experience, health care outcomes and health care costs. While the level of enthusiasm for these tools is at an all-time high, there is a growing concern about the unexpected deterrent to the adoption of these tools from an unlikely source: the Telephone Consumer Protection Act of 1991 (TCPA).
Many professionals in the health industry have come to share two misconceptions about the TCPA: first, that the TCPA only applies to marketing phone calls or text message “spam,” and second, that the TCPA does not apply to communications from HIPAA covered entities to their patients/health plan members. These misconceptions can be costly mistakes for covered entities that have designed their patient engagement outreach programs without include a TCPA compliance strategy.
As discussed in a previous post, the TCPA was originally intended to curb abusive telemarketing calls. When applying the law to smarter and increasingly innovative technologies (especially those that we see in the patient engagement world), the TCPA poses significant compliance challenges for the users of these tools that arguably threaten to curb meaningful progress on important public health and policy goals.
Despite its initial scope of addressing robocalls, the TCPA also applies to many automated communications between health care providers and their patients, and between plans and their members. There is a diverse array of technical consent requirements that apply depending on what type of phone call you make. For instance, most auto-dialed marketing calls to cell phones require prior express written consent, meaning that the caller must first obtain written consent before making the call. To make compliance more compliance, callers remain responsible for proving consent and the accuracy of the numbers dialed.
Indeed, the TCPA presents a serious challenge for patient engagement tools, especially when violations of the TCPA can yield statutory damages of up to $1,500 per call or text message. While Federal Communications Commission orders over the past several years have added some clarity and a “safe harbor” for HIPAA-covered entities to help entities achieve compliance, there is still no “free pass” from the TCPA’s requirements. Therefore, covered entities and the business associates who work for them should not assume that compliance with HIPAA offers any security of defense against a successful claim under the TCPA.
Strategies for Patient Engagement Tools
TCPA compliance is about identifying and managing risk in a way that does not hinder the benefits that these patient engagement tools can create for providers and patients alike. This means that covered entities should consider a number of important questions when designing patient outreach programs using patient engagement tools, including:
- What consent is required, and how will you prove that you obtained it?
- What will you do to ensure that your vendors and other third parties comply with the TCPA when they make calls on your behalf?
- How will you respond to and effectuate a consumer’s request to revoke their consent to receive calls and text messages?
McDermott lawyers Jennifer S. Geetter, Matthew Knowles and Amy C. Pimentel recently authored an article published in Bloomberg BNA’s Health IT Law & Industry Report, which contains a fuller discussion and analysis of the compliance challenges and strategies for patient engagement tools.