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Telemedicine and remote patient monitoring companies usually want to maintain an open communication channel with patients, whether it is scheduling, medication reminders, participating in inspections, or even new product and service updates. Texting and push notifications are currently the communication methods that attract patient users. Digital healthcare entrepreneurs can use these tools, but they should understand the Telephone Consumer Protection Act (TCPA). This article shares some of the ideas of TCPA. Telemedicine and remote patient monitoring companies can consider incorporating it into their software product design and user interface development.
TCPA is a federal law. Calls and text messages are limited to residential phones and mobile phones unless users agree in writing to receive these messages. In addition to the Federal Communications Commission’s (FCC) federal fines and penalties enforcement measures, private plaintiffs also filed lawsuits (including class actions) under the TCPA, with statutory damages ranging from US$500 to US$1,500 per text message.
If a company wants to send a text message to a user’s smartphone (whether it sends a marketing message or not), the best practice is to obtain the user’s “explicit prior written consent.” The written agreement should include clear and conspicuous disclosure to inform users:
The user’s written consent can be provided electronically, provided that it is considered a valid signature under the Federal E-SIGN Act and the state electronic signature law. However, because the Federal Trade Commission (FTC) allows patients to send the patient’s digital consent via email, website clicks on signature forms, text messages, phone buttons and even voice records, the product design is innovative and flexible.
TCPA has an exception for healthcare messages. It allows healthcare providers to place manual/pre-recorded voice and text messages on mobile phones to convey important information “healthcare messages” without the patient’s prior explicit consent. Examples include appointment confirmations, prescription notifications, and exam reminders. However, even under the “healthcare messaging” exemption, there are some restrictions (for example, patients or users cannot be charged for phone calls or SMS messages; no more than three messages can be initiated per week; the content of the messages must be strictly restricted to allow Purpose, and cannot include marketing, advertising, billing, etc.). All messaging must also comply with HIPAA privacy and security requirements, and opt-out requests must be accepted immediately.
Many early telemedicine companies (especially direct-to-consumer (DTC) telemedicine companies) prefer text-based browser-based patient dashboards instead of developing dedicated downloadable applications. Remote patient monitoring companies, even in the early stages, are more likely to link downloadable applications to medical devices that support Bluetooth. For companies with mobile apps, one solution is to use push notifications instead of texting. This can completely avoid TCPA’s jurisdiction. Push notifications are similar to texting because they all pop up on an individual’s smartphone to deliver a message and/or prompt the user to take action. However, because push notifications are controlled by app users, not text messages or phone calls, they are not subject to TCPA supervision. Apps and push notifications are still subject to state privacy laws and potentially (not always) HIPAA regulation. Push notifications also have the added benefit of being able to route users directly to mobile apps so that content and information can be provided to patients in an engaging and secure format.
Whether it is telemedicine or remote patient monitoring, effective communication through a convenient (if not pleasant) user experience platform is essential for the interaction between patients and users. As more and more patients begin to use smartphones as their sole source of communication, digital healthcare companies can take some simple but important steps to comply with TCPA (and other applicable laws) when developing product designs.
The content of this article is intended to provide general guidance on the subject. Expert advice should be sought depending on your specific situation.
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Post time: Mar-10-2021