One of the largest barriers to effective healthcare communication is the fear of legal action. That’s why one of our first blog posts explained how to text your members and not get sued. Since then the legal landscape has shifted dramatically in ways that make it even easier to text without fear of a class action lawsuit. Let’s return to this issue and clarify it further.
TCPA and the Risks of Automated Calls and Texts
First, some legal history. One aim of the 1991 Telephone Consumer Protection Act (TCPA) was to prevent the use of an autodialer or automated telephone dialing system (ATDS) to contact consumers by phone or text without first getting some form of consent. What counts as an autodialer, however, was always murky. Some courts said the system had to actually dial using a random or sequential set of numbers, while other courts said it only had to have the capacity to randomly or sequentially dial those numbers.
The law wasn’t clear on this, and so when autodialers were used to contact people without calling randomly or sequentially (i.e., from lists of members who likely needed or wanted to be called), it led to a heap of lawsuits. This, in turn, led to a deep-seated conservatism around contacting consumers or health care members by phone or text. For large organizations, the risks always outweigh the rewards, and so if prior consent could not be proven to have been secured, there were tight limitations around how recipients could be contacted. For a company like Reema who knew the power of texting to engage members, this was often quite frustrating.
What is an Automated Dialer, Really?
In 2021, much of this confusion was cleared up in the Supreme Court’s Facebook v. Duguid decision. In their unanimous opinion, they required that for an ATDS to be limited under TCPA, it must actually call sequentially or randomly. Having the capacity to do so was no longer relevant, narrowing the definition.
If you use an automated dialer to text message people from a preformed list (not sequentially or randomly), then you’re not using an autodialer and, thus, not limited by the TCPA.
Bottom line? When healthcare companies text their members using preformed lists—even if they text them using an automated dialer—they are not liable under TCPA. This means that contacting members via text with pre-recorded messages doesn’t leave you open to a class action lawsuit.
Health Care Companies are Slow to Adapt
Though this landmark decision landed in 2021, we still encounter legal departments reluctant to embrace the kind of texting that we do—texting that is wildly successful at engaging members and closing gaps in care. For us, this speaks to the inertia of old policies and thinking within the healthcare industry (or the inertia within any industry, for that matter): a reluctance to challenge old thinking and adopt policies that reflect new legal or technological realities.
This inertia is ironic because a number of health care companies joined a 2021 amicus brief in favor of allowing autodialing in exactly this way. They argue that dialers facilitate the kind of outreach that is essential to closing critical gaps in care for all their members: private, Medicaid, Medicare, dual enrolled, and CHIP. And these are gaps that states and DHS want closed. Contacting all these people without an automatic dialer and pre-recorded messages would be impossible. Their argument is worth quoting in full:
Dialers facilitate tens of millions of healthcare calls annually to members by call representatives. Without the ability to dial members’ numbers with such equipment, timely healthcare outreach by live representatives on the necessary scale and in the necessary time frame is logistically impractical and cost prohibitive given the number of additional steps for every call live representatives would have to make.”
We’ve been making exactly the same arguments. Unfortunately, we rarely meet legal departments who fully embrace these arguments. Instead, most still live in a pre-Facebook v. Duguid world, and that hinders their ability to leverage the kinds of success companies like Reema can provide. That must change.
How Reema Ensures Legal Liability Drops to Zero
The core issue has always been a disconnect between the rules and the interpretation of those rules. After Facebook v. Duguid, that disconnect is gone because we now have clear legal precedent for what counts as proper outreach. Still, while we might be frustrated at the reluctance to adapt, we understand it. That’s why you don’t expect the health plan to manage it. We do it for you.
- First, we know the legal landscape and what’s allowed. And what’s allowed is texting your members about their health and healthcare needs.
- Second, to further mitigate risk, every campaign we run puts members through a formal consent process within the first two or three times we contact them. We don’t have to do this, but we do it because it quickly establishes prior expressed written consent—the gold standard of consent under the TCPA.
- Third, while we expect a health care company’s legal department to stay abreast of relevant cases, we don’t think the general public should, and so they will continue to have certain expectations about how they are contacted. Asking them for consent and including opt-out options acknowledges member autonomy, ensures they feel respected, and discourages them from assuming our outreach is a scam.
Your Members Want To Be Texted
In response to the inertia and conservatism we encounter against texting members, we offer the simple fact that this remains the best way to engage them about their health. Cell phones are the preferred mode of contact and text messaging is the preferred channel.
What’s more, the way Reema texts members isn’t traditional one-way outreach. We don’t simply send a message indicating a call to action and move on. We encourage and expect a response to which our Community Guides can respond in turn. This is a qualitatively different approach and one that merges the technology of automatic text messages with the personal touch of an actual human. The value we add isn’t simply a streamlined and legal communication strategy. It’s a radical approach to member outreach that gets results. It’s legal and it’s better. With Reema, the rewards now heavily outweigh the risks.
This blog post was written with insights and guidance from Mike Evens, contributing author to Reema Health.
