Operating as a hospital or health system requires compliance with a variety of state and federal regulations. These govern everything from patient safety to less-obvious areas such as consumer protection. One such regulation is the Telephone Consumer Protection Act (TCPA), first enacted by Congress in 1991 to prevent telemarketers from making unwanted and/or non-consensual contact with consumers via their phones and fax machines.
What do unsolicited telemarketer phone calls have to do with providers and patients? A lot, actually. In the decades since the law went into effect, two things have happened. The TCPA has broadened—it now covers automated calls and texts to both landline and mobile phones, as well as prerecorded messages. The healthcare industry has also experienced consumerization, which has transformed the way healthcare providers interact with patients. What’s more, ignoring the law could be expensive: Each call or text made in violation of the TCPA can cost up to $1,500 per instance in fines and damages, even if no one answers the call. Together, these factors make the TCPA an essential consideration for hospitals and healthcare providers.
Here are some examples of how the TCPA could affect your revenue cycle operations.
The TCPA doesn’t apply to all calls and texts.
In 2015, the Federal Communications Commission (FCC) clarified some rules for hospitals. When making calls or text messages that are free to the end user and that have an express healthcare-related purpose (such as treatment follow-up, appointment confirmations and reminders, and pre-registration or pre-operative instructions), hospitals are exempt from the TCPA. In these instances, hospitals are not required to receive prior express consent from patients before reaching out via phone/text.
However, calls placed by an auto-dialer related to accounting, debt collection, payment notification, eligibility and other financial issues do require appropriate prior express consent. In order to avoid exposure under the TCPA, in these instances, it’s important to receive that consent from patients.
There are different kinds of consent.
The TCPA makes a distinction between prior express written consent and prior express consent. Express written consent is required for calls, text messages and faxes that are made for telemarketing or advertising purposes. Informational or non-telemarketing calls, including those regarding a patient’s financial responsibility, require prior express consent.
So, what is prior express consent? This has been a great source of contention—and litigation—over the years, so much so that the FCC cleared up rules regarding prior express consent, too. In the same 2015 clarifying-rule spree, the FCC explained that when a patient provides a telephone number to a healthcare provider, such provision constitutes prior express consent for calls related to healthcare.”
To minimize exposure under the TCPA, ensure that your consent policies are explicit, outlining the various possible purposes of communication and that such communication may come not just from the hospital, but also from various business associates performing services on behalf of the hospital, such as a contracted billing service or collection agency. It’s also important to make sure that your consent policies are shared consistently—as a standard component of a new patient registration packet, for example.
Note: This article provides only a glimpse of a healthcare organization’s requirements under the TCPA and as such should not be considered a complete review of the Act and its implications on healthcare providers.