Did you know that sending an unsolicited text to a potential patient or even to an existing patient could subject you to a fine of up to $1,500 per text? The Telephone Consumer Protection Act (TCPA) prohibits anyone from calling or texting you using an automated dialing system, unless they had your prior permission. In addition, the Health Insurance Portability and Accountability Act (HIPAA), a 1996 Federal law that restricts access to individuals’ private medical information, also prohibits marketing to patients unless they “opt in” for marketing purposes.
The TCPA was made into law in 1991. It created the National Do Not Call List. Although the law originally focused on robocalls, courts have extended its application to texts. In order to be compliant, you should do the following:
- Never contact someone on the National Do Not Call Registry. National Do Not Call Registry
- When onboarding new patients, have the patient sign a document that states they opt in to receive marketing materials and marketing messages via text and email. We have seen many clients incorporate it into their Notice of HIPAA Privacy Practices.
- Create a documentation policy for patients who opt in and patients who decline or opt out. In the event of a violation, it will show regulators that the violation was not willful, which subjects you to 3 times the penalty, or $1,500 per text or violation of the TCPA.
- Allow all text messages to have the ability to STOP. Most SMS providers allow persons to opt out by sending the keyword STOP, or equivalent keywords such as END, CANCEL, UNSUBSCRIBE, and QUIT. To stay compliant, ensure your provider does this as well.
In 2015, the Federal Communications Commission issued a TCPA Declaratory Ruling clarifying the following issues:
- Telephone service providers can offer robocall blocking to consumers.
- Telemarketers may not use automated dialing to call wireless phones and leave pre-recorded telemarketing messages without consent.
- Consumers may revoke consent to receive calls or SMS messages in any “reasonable” way, at any time.
- Callers must cease calling any reassigned phone numbers (wired and wireless).
- Consent “survives” when a person ports their landline phone number to a wireless number.
- Some “urgent circumstances” still allow a company to call or send SMSes to wireless phones without prior consent, such as alerts about potential fraud or reminders of urgent medication refills. However, the company instigating such communications must offer consumers an “opt out” option.
Enforcement around the TCPA appears to be increasing. Generally there are around 3,000 TCPA lawsuits filed a year. A lot of plaintiff attorneys are looking for class-actions suits. In 2017, Dish Network had to pay approximately $341 million in damages for violating the TCPA. Members of the class-action suit alleged that Dish had knowingly called numbers on the Do Not Call registry. Dish argued that their telemarketing provider, Satellite System Network, was at fault, not them. The jury rejected this argument and awarded $400 per call. In 2013, Domino’s Pizza settled a TCPA class-action lawsuit for nearly $10 million dollars. Similar to the Dish Network case, the court found that consumers had received unsolicited marketing calls. Additionally, it was found that Domino’s sent promotional texts without receiving consent first. In April of 2021, a TCPA class action was filed against JP Morgan for sending unsolicited robocalls to potential customers. The lead plaintiff is seeking $170,000 for the 88 calls he received.
In addition to the Federal TCPA, many states have enacted their own telephone consumer protection laws. Florida, for example, just enacted its own version of the TCPA. It is important to know the restrictions in both the Federal TCPA as well as any unique restrictions your state might have. In all states, it is essential to get written documentation of your client’s consent to receive marketing material and to be contacted via text. And if they ask you not to contact them, don’t contact them.
*The above is meant as general guidance and not legal advice. It is important that you consult with an attorney well versed in the TCPA and the laws of your state.