Supreme Court Ruling May Help Providers With mHealth Messaging Strategies

A recent Supreme Court ruling gives healthcare providers a little more freedom to send automated text messages to patients.

The court earlier this month sided with Facebook in a case involving the Telephone Consumer Protection Act (TCPA), ruling that the company didn’t have to adhere to TCPA guidelines because it doesn’t use a messaging system that randomly or sequentially stores or generates a telephone number. In doing so, the court essentially redefined an automatic telephone dialing system, or autodialer.

Writing in the Health Care Law Today blog, attorneys for the Foley & Lardner law firm said the court’s ruling will allow healthcare providers to send out “health care messages” by text without needing prior written consent from patients.

The ruling gives providers a little bit more leeway in using mHealth platforms to send out texts about news like upcoming appointments, prescription notifications and exam reminders, though they still have to adhere to HIPAA privacy and security requirements. They also can’t charge patients for those messages, can’t send more than three messages per week and can’t use the platform for billing, advertising, marketing or other services.

“The ambiguity in the TCPA regarding the definition of an autodialer meant that digital health companies were at risk of the TCPA’s private right of action and statutory penalty provisions by texting with their patients,” Foley & Lardner attorney Chanley Howell, a partner with the firm, Aaron Maguregui, a special counsel, and Kevin Hotchkiss, an associate, wrote. “The Supreme Court in Facebook unanimously overturned the Ninth Circuit’s broad interpretation of an autodialer, delivering a significant win for TCPA defendants.”

“If your dialing equipment makes calls to telephone numbers maintained in your patient management system or your customer relationship management platform and does not utilize a random or sequential telephone number generator, text messages and calls using that system or platform are not required under the TCPA to obtain prior express written consent before sending a text or making a phone call,” they continued. “Importantly, the ruling does not distinguish between service-related (purely informational) messages and marketing messages for autodialer purposes, and accordingly applies to both non-telemarketing and telemarketing text messages and phone calls. As a result, as long as the dialing equipment does not use a random or sequential number generator, a digital health company will not be required to obtain ‘prior express written consent’ from their patients before sending them a text, provided other aspects of the TCPA are complied with.”

The ruling gives care providers a chance to use mHealth messaging to enhance patient engagement and care coordination, focusing on tasks that are often handled via phone calls or even mailed notices. And it highlights a messaging platform that’s become increasingly popular.

HIPAA requirements come into play when these messages contain any sort of unencrypted personal health information (PHI). In that case, providers need to make sure that patients are asked for their preference on messaging platforms and consent to receive messages with unencrypted PHI, that they’re warned of the risks of communication via unencrypted texts or e-mails, and that patient consent and provider efforts to comply with HIPAA are fully documented.