The wrong patient communication plan could be costly

June 9, 2021
The Telephone Consumer Protection Act (TCPA) regulates some forms of calls and texts sent by businesses. Is your practice, in its communications with patients, complying with the TCPA?
Telephone Consumer Protection Act (TCPA)

If you’re thinking about using an automated service to call or text your patients, it is important to understand the rules.

The Telephone Consumer Protection Act (TCPA) prohibits some forms of unsolicited communications with consumers. Michael Stokes, J.D., AOA General Counsel, explains the implications of the act for optometric practices.

1. What is the purpose of the TCPA?

The purpose of the TCPA, originally passed in 1991 and revised from time to time, is to give individuals control over automated communications directed to their telephone numbers by businesses. This includes both landlines and mobile phones (and even faxes), but the rules for each are slightly different. TCPA regulations are enforced by the Federal Communications Commission (FCC). The law and regulations enforcing it have changed over time to adapt to new means of communication.

2.What modes of communication does the act pertain to?

The TCPA applies to telephone calls and texts sent using a prerecorded or artificial voice, as well as to communications sent using any type of automated equipment (such as computers or automatic telephone dialing systems), without express permission from the individuals receiving the communication.

The rules for communications sent to an individual’s mobile phone are more restrictive than for residential landlines. The TCPA prohibits sending any type of communications using automated equipment—even nonmarketing communications—to mobile phones without permission. For landlines, only marketing calls are subject to restrictions.

The TCPA does not apply to calls or texts placed by actual persons or to informational or transactional calls or texts if the recipients are at the phone number given to you by the recipients as a contact method. Any business-related call or text should only be sent between the hours of 8 a.m. and 9 p.m. (recipient’s time zone).

The TCPA contains an exemption for health care messaging. For most practices, understanding and abiding by this exemption is the key to compliance with the TCPA.

3. What is the health care exemption?

The health care exemption allows health care providers to contact a patient’s mobile phone via calls or texts using automated methods by following these guidelines: 

  • Use only a number provided to you by the patient. Under the health care exemption, a patient who provides their mobile number is considered to have given you express consent to receive health care-related calls or texts at that number.
  • State your name and contact information at the beginning of the call.
  • Keep the length of the call to one minute or less, or 160 characters or less for a text message.
  • Provide an opt-out method in each communication.
  • The calls should only concern the recipient’s health care. Do not include any billing or collection information or any marketing message. Examples of health care-related communications include appointment reminders, test results or prescription information.
  • You may send no more than one communication per day and three communications per week.

 4. What about contacting a patient to remind them that they are due for an annual exam?

If the patient has already made an appointment, sending a reminder message or text would fall under the health care exemption and be subject to its rules. If the patient does not have an appointment set, such a communication may be considered marketing. For marketing communications, in order to send such a communication via automated means, you must have express written consent from the patient permitting you to send marketing communications to a particular number. Otherwise, you may send a postcard or letter or ask staff to directly place a voice call.

5. How do I get prior express written consent/authorization for communications outside of the health care exemption (such as marketing calls)?

By having the patient sign a consent document permitting marketing calls/texts using automatic dialing or texting methods or pre-recorded voices. The document should list the phone numbers to be contacted. The consent must be granted before any communications are sent.

6. What are the consequences for violating the act?

The TCPA is primarily enforced through private lawsuits, because it gives plaintiffs the right to seek penalties directly against violators. The standard penalty is $500, with penalties tripled for knowing and willful violations. Increasingly, the TCPA is being enforced through class-action lawsuits against violators, which seek to combine claims from hundreds or thousands of potential claimants.

7.Where can I get more information on TCPA?

The FCC website contains information about the TCPA. TCPA rules are complicated, so it is recommended that any business wishing to use pre-recorded voices or automated equipment to send marketing communications seek professional guidance. If marketing communications are directed to phone numbers that the business did not directly obtain from the individual, there are additional considerations with regard to the National Do Not Call registry. For most optometry practices, understanding and abiding by the rules of the TCPA health care exemption will avoid possible violations.

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