Unfamiliar with the Telephone Consumer Protection Act (TCPA), but alarmed by the lawsuit brought against Prospect Medical? Let’s take a few minutes to calm your nerves with a quick overview of TCPA consent.
In a previous post I explained how the TCPA restricts a calling party’s right to communicate with a patient by way of their cell phone using an automatic telephone dialing system (ATDS), artificial or prerecorded voice message or SMS text message without the patient’s express consent. Today, I will explain how you may obtain that express consent, so you can dial with more assurance:
Step 1: Ask for the Cell Phone Number
The bar could not be any lower when it comes to obtaining a patient’s consent to dial. Simply stated, if they give you their cell number, you have their express consent to call it using an autodialer, artificial voice or prerecorded message. The Federal Communications Commission (FCC), a federal regulatory body empowered to interpret the TCPA and all of its requirements, has opined it does not require any specific method by which a caller must obtain prior express consent. [See,https://www.fcc.gov/document/tcpa-omnibus-declaratory-ruling-and-order, July 10, 2015, par. 49 “(P)ersons who knowingly release their phone numbers in have . . . given their invitation/permission to be called at number . . . absent instructions to contrary”.]
However, the FCC has been equally vocal about the narrow limits it places on a calling party’s right to apply the consent it obtains from its patients. In its July 2015 Ruling and Order, the FCC explained consent should be construed narrowly, and bear a relationship to the product or the service for which the cell number was provided. This means a hospital cannot obtain the consumer’s consent to dial in connection with a tonsillectomy and assume the same consent extends to cellular communications in connection with a subsequent appendectomy. [See, Nigro v. Mercantile Adjustment Bureau, 769 F.3d 804 (2nd Cir. 2014) and Hudson v. Sharp Healthcare, at *6 (S.D. Cal. June 25, 2014).] My best non-legal advice is for hospitals to obtain their patients’ consent to dial using an autodialer, artificial voice or prerecorded message early and often, much like you handle the several HIPAA-related consents you obtain from your patients at every encounter.
Step 2: Keep a record
While obtaining consent might seem like a simple process, the burden of proof is on the calling party to prove when and how it did so. [See, Declaratory Ruling and Order, July 10, 2015, par. 47).] The question is therefore not whether, but how your hospital will prove it obtained the patient’s consent to communicate with them by way of their cell phone using an autodialer, artificial voice or prerecorded message. The FCC has not provided guidance on this question. Instead we must look to the rules of evidence: Writings, audio recordings, IVR transcripts, and other forms of web, digital and electronic communications may all serve as documentation.
For this reason, many hospitals choose to secure a patient’s consent during the admissions process by including a provision in the admission documents which the patient or the patient’s legal guardian signs. Others secure a patient’s consent through a registration process presented on their websites or via an IVR with which the patient or their legal guardian registers assent to dial their cell phone using a click agreement or electronic signature. Still others may obtain a patient’s consent by simply asking them for their cell number during a recorded call.
Yet all are challenged when a patient is admitted through the emergency room or urgent care facility. This is because the FCC clarified in its FCC July 2010 Order the only personwho may provide one with his or her consent to communicate with them using an autodialer, artificial voice or prerecorded message is the subscriber to the cell service or one who customarily uses the cell phone. Most will agree patients presented to an emergency room or urgent care facility are frequently incapacitated or lack contemporaneous proof of insurance and other identifying information at the time of intake. They may also be accompanied by ambulance personnel, advocates, friends or family. This means the risk of receiving the cell number from someone other than the patient/consumer or the customary user of the cell number is very high in an ER setting.
Hospitals are well-advised to not consider cell phone numbers provided by ER patients or those who accompany them (unless they are clearly a spouse or legal guardian) to be TCPA-style express consent. It is my best non-legal advice for the hospital to dial these individuals using a manual contact device or only call them using the patient’s landline number, if any, until they have the opportunity to ask the patient to provide his or her cell number.
Step 3: Follow the Litigation
The recent case of Baisden et ux. v. Credit Adjustments, Inc. (6th Cir.) underscores the important processes and procedures hospitals use to obtain consent prior to authorizing an agent to communicate with their patients using an autodialer, artificial voice or prerecorded message. In the end, your policy and procedure can insulate you and your agents from liability under the TCPA. In this case, a putative class action arose out of the hospital’s collection agency’s attempt to collect a little over one thousand dollars of medical debt incurred by Zachary Baisden and Brenda Sissoko (“plaintiffs”). Plaintiffs claimed Credit Adjustments violated the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227(b)(1)(A)(iii), when it placed debt collection calls to their cell phone numbers using an “automatic telephone dialing system” and an “artificial or prerecorded voice.”
Credit Adjustments neither disputed that it placed calls to their patients’ cell phone numbers nor denied it used the technologies as alleged. Rather, Credit Adjustments explained by virtue of plaintiffs’ provision of their cell phone numbers to the hospital where they received medical care, plaintiffs gave their “prior express consent” to receive such calls and, thus, it did not violate the TCPA. The district court entered summary judgment for Credit Adjustments on this basis, and on appeal the case was affirmed. (http://www.ca6.uscourts.gov/opinions.pdf/16a0037p-06.pdf)
By: Rozanne Andersen