Please support Telehealth.org’s ability to deliver helpful news, opinions, and analyses by turning off your ad blocker. As more and more patients/clients are using smartphones, telehealth providers and remote patient monitoring (RPM) companies are communicating with clients via texting and push notifications. While text messaging is familiar to most, a push notification is a short message that is generated, for example, by a remote patient monitoring company’s app, as a convenient way to send messages to end-users. Whether the communication is by text or push notification, providers need to be aware that there are TCPA regulations covering the use of both. Failure to follow the regulations can result in the Federal Communications Commission (FCC) levying fines/penalties. Further, plaintiffs have filed private lawsuits for violations which have resulted in statutory damages awarded from $500 to $1500 per text message.
Text Messages and TCPA
The Telephone Consumer Protection Act (TCPA) is a law stating that potential recipients of calls or texts to residential lines or cell phones must agree in writing to receive the messages. Providers would be wise to obtain prior “express written consent” which includes:
- Acknowledgment that the person authorizes the provider/seller to deliver telemarketing calls using automatic telephone dialing systems or an artificial/pre-recorded voice.
- Acknowledgment that signing such an agreement is not a condition of receiving goods or services. In other words, a person cannot be denied goods or services if they refuse to agree to receive calls/texts. Permission must be written, but it can be provided electronically, following the guidelines of the federal e-sign act and state electronic signature laws. Digital consent given by email, website click sign forms, text, telephone keypress, and voice recordings are permissible forms of signature.
Exception to TCPA for Health Care Providers
Health care providers are allowed to place pre-recorded voice and text messages to cell phones without a patient’s prior consent if the message intent is to convey important healthcare information, such as scheduling and appointment reminders, prescription pick-up reminders, etc. The exception to TCPA, however, does have some rules, including:
- Patients cannot be charged for the call or message
- Only three messages can be sent per week
- The messages must be limited to healthcare information and not contain marketing, advertising, other business-related information, etc
- The messages must also be HIPAA compliant and clients given opt-out choice, which must be acted upon promptly. For more information on HIPAA compliant texting and telehealth see HIPAA Compliant Texting.
Push Notifications Not Regulated by TCPA
Remote patient monitoring (RPM) companies may use Bluetooth-enabled medical devices that are linked to a downloadable app on the user’s smartphone. For more information on RPM see Four Types of Telehealth: Advantages and Uses. These companies find push notifications to be a convenient way to send patient messages or prompts to take some kind of action related to the device. Push notifications are not considered to be a text message or phone call, and therefore do not fall under TCPA regulation. They are, however, regulated by state privacy laws and in some cases, by HIPAA.
Ethics of Texting: Do’s and Don’ts
Explore clinical, legal & ethical requirements for text messaging with clients & patients.
I have been using a consent form of my own making for several years which covers email, text and phone communications which is required prior to accepting the case. It explains the limits of confidentiality, requires the patient to be responsible for access to electronic communications once received and provides an opt out clause. Patients have been very receptive.
I have a client from years ago who continues to send text messages off and on. She has been informed that text messaging is not HIPAA compliant and wants to send anyway. What do I do?
Michelle,
Depending on your prior relationship with her and your own clinical judgement of how to best approach her, you may wnat to consider sending her a letter via surface mail explaining the situation. If it helps, you may want to include a copy of our articles on this issue. If she persists, you will need to decide if you want to respond in text or not. But officially, as per most state laws, once you terminate and put your terms of engagement in writing, you should be good to go. It might also be helpful to consult a lawyer in your state to see if there are any state laws that would require you to do more. Professional associations and malpractice insurance companies often have a lawyer on retainer for you to consult at low or no cost about these types of issues. Best of luck to you.