Memorandum re Liability to Dental Practice under the Telephone & Consumer Protection Act – (TCPA) – September 28, 2015.
Disclaimer: This material is for general reference purposes only and does not constitute legal advice.
Note: Even though the TCPA only covers phone calls and text messaging, we also included emails as part of the consent that patients give in the event that future regulations or laws are passed involving email communications.
The purpose of this memorandum is to discuss the changes to a Practice’s1) Notice of Privacy Practices and 2) Acknowledgement of Receipt of Notice of Privacy Practices & Consent for Use and Disclosure of Health Information (Acknowledgement). These changes are necessary in order to protect the practice from potential lawsuits and damages resulting from violations of the Telephone and Consumer Protection Act which stemmed from the class action suit against Walgreens where Walgreens settled for $11,000,000 for alleged violations of the TCPA. The final approval hearing for this settlement was held on Aug. 5, 2015.
How come we need to make these changes when Healthcare Compliance Consulting, Inc. set up our HIPAA Privacy and Compliance programs for us and we already have our patients sign our Acknowledgement form ?
The problem is that even though a dental practice is a covered entity (just the same as Walgreens is a covered entity) and is subject to comply with the HIPAA regulations, the class action suit against Walgreens was not brought against it for violation of the HIPAA regulations but for violation of the TCPA, which is a federal act that is completely separate from the HIPAA regulations. The nature of the infraction and violation against Walgreens was such that this type of incident should have been covered under the HIPAA regulations, but there are no HIPAA regulations that discuss or govern this. Thus, a similar lawsuit could be brought against a dental practice on the grounds that the dental practice violated the TCPA.
The nature of the lawsuit against Walgreens was that it placed prerecorded prescription reminder calls to the cell phones of prior Walgreen consumers or customers without their consent. The court made a distinction between phone calls made by Walgreens to Pharmacy patients with a current prescription which were due to be picked with prior Walgreen Pharmacy patients that had no current prescriptions due to be picked up. The court said that the reminder calls to prior Walgreen patients that did not have a current prescription due to be picked up could not be made by Walgreens without that patient’s prior consent. Without prior consent, the court said that these cell phone calls were unauthorized because Walgreen did not get the patients consent first, and thus this constituted a violation of the TCPA and made Walgreens subject to damages.
Lawsuits can be brought under the TCPA against any dentist for sending out any kind of reminder message to patients (i.e.-to schedule recall appointments and unscheduled treatment) that are transmitted either by phone or text that are made without the prior consent of that patient.
How a violation of the TCPA could occur in a dental office is 1) where a phone call or text notice is sent or given to the patient where the patient is requested to call the dental office and set up an appointment for future treatment based on a prior recommendation from the dentist to have this unscheduled dental work done in the future or, 2) where the dental office calls or texts a recall notice to the patient to set up an appointment (such as a 3 month or 6 month, etc. recall appointment reminder) stating that it has been 3, 6, 9 months, etc. since you last treatment or visit and it is time to set up another dental appointment, and that patient has not given the practice his/her consent to send out such notices.
To be safe and to prevent the dental practice from having liability and subject to a lawsuit and damages for violation of the TCPA is for the dental practice to have language on its NPP and Acknowledgement form where the patient gives the dental practice his/her consent to send out such notices by either phone or text. We have revised the NPP and Acknowledgement form with language that gives the dental practice consent of the patients to send out such notices.
Special problems involving Recall Notices
When a dental office makes a phone call or sends a text message to a patient reminding them that it has been 3 months, 6 months, 9 months, 12 months, etc. and requests the patient to call and set up an appointment, this is a violation of the TCPA unless the patient gives consent to the practice to call or text him/her. The problem is that it has been a common practice for dental practices to make these kind of recall notices in order to keep business coming into the practice. To stop making these kinds of recall notices could cause the dental practice to lose a substantial amount of business. So, on one hand, based on the current litigation with Walgreens, it definitely is a violation of the TCPA to make these kinds of phone calls or text messages without the patients’ consent. On the other hand, the practice will lose business if it does not contact patients that it has previously treated to notify them that they have not been in for 3 months, 6 months, etc. and that they should set up an appointment. To further complicate the situation or problem is that if the dental practice does not contact its patients for recall appointments, it is possible that it could be cited for abandonment of treatment. Once a dentist begins treating a patient, the dentist may not abandon the patient without incurring liability for damages unless the dentist follows certain steps and procedures for terminating the dentist/patient relationship. So, the dentist is really in catch 22 situation. So a dental practice will have to decide how it wants to handle this situation because there will be risk involved no matter what it does. If the dentist contacts the patient by phone or text in order to set up a recall appointment without the patients’ consent, it is in violation of the TCPA. If it does not make a recall phone call or recall text, it could be subject to liability under abandonment of treatment. So the dentist will have to decide whether to take the risk and continue making recall phone and/or text messages and have the patient sign the consent form when they come in for treatment.
We have recommended that all dental practices have their existing and new patients sign their Acknowledgement form with the new consent language on it because 1)anyone can file a lawsuit against the practice under the TCPA for failure of the practice to obtain consent from the patient (it doesn’t just have to be the patient that could file a lawsuit against the practice) and, 2) because of recent Walgreens settlement for violation of the TCPA (Aug. 5, 2015), lawyers may be more aggressive in searching out clients that would be willing to bring a lawsuit against any covered entity (such as a dental practice either large or small). There already are lawyers that are pursuing opportunities to solicit people that they can represent to bring lawsuits against healthcare providers for violations of the TCPA. If you Google Telephone Consumer Protection Act, there already are Minneapolis law firms whose names will appear on the side bar advertising their consumer protection services for violations of the TCPA.