The Telephone Consumer Protection Act (“TCPA”) protects consumers from unwanted telephone calls and text messages by requiring a business to obtain prior express consent before placing autodialed or prerecorded voice calls to consumers’ wireless phones, and prerecorded voice calls to residential phones. The TCPA provides for uncapped statutory penalties of $500-$1,500 per call, which has driven a wave of consumer class action litigation in all states.
In many instances, consumer consent must be unambiguous and in writing, and it is the obligation of the business to maintain records that establish consumer consent (whether written or otherwise). Importantly though, the TCPA contains an exemption from the written consent requirement for calls or texts that deliver a “‘health care’ message” made by or on behalf of a “covered entity” or its “business associate,” as those terms are defined in HIPAA. Until recently, it was unclear whether such calls require consent at all. The Federal Communications Commission (“FCC”) took steps to resolve that confusion on July 10, 2015 when it issued a Declaratory Ruling and Order (“Order”) clarifying several sections of the TCPA, including the circumstances under which healthcare-related messages are exempt from the TCPA’s consent requirements.
Because the Order relates to healthcare providers such as imaging and radiology centers, there are several important takeaways. First, the FCC confirmed that providers and their “business associates” can rely on a patient’s voluntary provision of a cell phone number as constituting prior express consent under the TCPA, as long as subsequent calls or texts are limited to the purpose for which the patient provided the telephone number in the first place. For example, based on the FCC’s guidance, it does not appear that a patient who provides a wireless telephone number in the course of scheduling an MRI can later be called using an autodialer to let the patient know that the provider also offers screening mammography.
Second, the FCC recognized that certain healthcare calls (i.e., informational calls) provide valuable and time-sensitive messages critical to an individual’s health. Such calls are typically welcomed by patients, and for that reason, the FCC reasoned, they are exempt from the TCPA’s prior express consent requirement. The FCC specifically detailed acceptable calls that fit within the consent exemption: “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; and home healthcare instructions.” Calls by healthcare providers related to accounting, billing, debt collection or containing other financial content are not covered by the exemption.
Viewed in context of the overall consumer-friendly tone of the FCC’s Order, it is unclear whether the FCC, and ultimately courts interpreting the Order, would find that a patient’s provision of a wireless number to her treating physician amounts to consent to receive non-debt collection calls from another provider such as an imaging center. In many circumstances though, such providers should be able to rely on the second portion of the FCC’s Order in placing treatment-related autodialed or prerecorded voice calls to patients.
There are detailed requirements to fit within the exemption for healthcare-related calls. First, the calls and texts must be free to the end user. In the context of calls placed to a patient referred for an imaging procedure, calls should be limited to the telephone number provided by the patient to the referring provider. The calls or texts should state the name and contact information of the provider up front, and include language sufficient for the patient to understand that the call is being placed pursuant to the physician referral. The substance of the call must still comply with HIPAA. In addition, the calls or texts must be brief – one minute or less for voice calls, and 160 characters or less for text messages. A provider (including vendors) may only place one exempt call or text message per patient per day, and not more than three such communications in a week. The call or text must also provide an opportunity within the body of the message for the recipient to opt out of receiving messages, and a provider must honor any such opt out immediately.
The rise in TCPA class actions filed against businesses, including healthcare institutions, corresponds with the increased use of automated telephone technology by businesses and the proliferation of cellular phones as the primary means of communication by consumers. The FCC’s new Order is likely to draw increased attention to businesses’ calling practices, and thus imaging and radiology centers seeking to place exempt calls to patients must understand consent requirements, and be diligent in scrutinizing call scripting and dialing procedures to ensure all requirements are met.
Client Alert 2015-267