Compliance in Social Media Marketing: HIPAA, HITECH & TCPA
The question we keep receiving from our clients is simple: what are the HIPAA rules for medical practices regarding texting patients and using social media marketing? The answers turned out to be complex but we share them in this month’s newsletter, which we consider an important read for the entire medical community.
For answers, we turned to Medical Justice, a “Preferred Vendor” of our sister company (SEOversite), for advice. Their mission since 1998 has been to “to deter the filing of frivolous medical malpractice lawsuits and to enable viable responses and remedies from wrongful suits against physicians,” so we knew they would be the perfect folks with whom to speak. The founder of Medical Justice, an attorney and neurosurgeon by training, Dr. Jeffrey Segal, has been kind enough to serve as our guest writer this month for our iScreamSocialMedia newsletter and we thank him for his contribution and advice on legalities involving marketing to patient lists through social media and text (SMS Marketing).
Guest Edition: Written by Dr. Jeffrey Segal – Founder – Medical Justice & eMerit
There are more ways than ever to connect with patients and prospects. Getting your message to patients and prospects has never been more profitable. Social media marketing is exploding. Text message marketing is now mainstream. And if you are looking for an industry leader to hire for social media marketing, I do strongly endorse iScreamSocialMedia having worked with its President, Jon Hoffenberg, for over a decade through each of its business lines, including YellowTelescope and SEOversite. With that said, as social media and texting are relatively new modalities for marketing, structuring your medical practice to avoid frivolous lawsuits or negative reviews is of great importance.
What could go wrong with text message and social media marketing?
Ever heard of TCPA? Most people haven’t. It stands for Telephone Consumer Protection Act. And it’s the second most frequent federal lawsuit after employment law claims.
And now a medspa is on the receiving end of a class action lawsuit. To win, they’ll likely spend six figures out of pocket in defense. If they lose, they may have to close. Simply put, it’s a cash cow for plaintiff’s attorneys. And why not? As Willie Sutton once opined… he robbed banks because that’s where the money was.
What is the Telephone Consumer Protection Act of 1991 (TCPA) and what triggers it?
In 2019, TCPA is mostly triggered by SMS text message marketing. The business sends offers to its prospects by text message. Text messages are generally opened and read. It’s effective.
SMS texting implemented by automated systems is regulated by the Telephone Consumer Protection Act of 1991 (TCPA). TCPA is enforced by the FCC. The FCC updated its TCPA regulations in July of 2015. And there’s a recent appellate court ruling which considered whether the FCC over-reached. That ruling created more questions than answers. The litigation machine roars on.
Initially, TCPA was designed to prevent dinner being interrupted by pre-recorded junk marketing calls to landlines. That was in 1991, when we had land lines and actually ate dinner together. Today, TCPA mostly tackles text messages.
The statutory damages for violating TCPA is $500 per text or actual damages, whichever is greater. The statutory damages are up to $1,500 per text for willful or knowing violations.
It doesn’t take much for this number to get large quickly. 1,000 x $500 = $500,000.
Because the number can get large quickly, class action lawsuits in this domain are enticing to attorneys, even when a business has done everything right. There is no cap on aggregate statutory damages. Multi-million dollar settlements are not uncommon.
In Kolinek v. Walgreens, Walgreens settled a class action suit for $11 million. What horrible thing did Walgreens do? A consumer provided his mobile number to Walgreens when he picked up a prescription. The pharmacist allegedly stated the number would only be used to verify his identity for future refills. Walgreens then sent messages reminding the consumer to pick up his refills. (Here, the number was not actually used to “verify his identity”; it was just a helpful reminder about refills.) The consumer filed a TCPA class action lawsuit. Multi-million dollar settlement. By the way, each consumer received about $20. The lawyers received millions.
How does a medical practice prevent being caught in a TCPA complaint?
If the text message is advertising or marketing, the business must obtain express prior written consent from each consumer who will receive a text. The consumer cannot be charged for the text. There’s a laundry list of items that must be included in a consumer’s written consent to be TCPA compliant. And the burden is on the business to obtain this consent. Getting this consent is like getting HIPAA consent for every consumer – yet again.
We’re sure a business that sells TCPA services will tell its clients not to worry. But, are they willing to indemnify the client for potential multi-million dollar judgment? Most errors and omissions or general business liability policies do not cover TCPA claims or they explicitly exclude TCPA claims. Medical malpractice insurance claims do not cover TCPA claims.
At least with medical malpractice, a plaintiff needs to allege an injury. The doctor is typically covered with medical malpractice insurance. And many states cap damages.
With TCPA, the sky is the limit. The mistake can be innocuous. And insurance is generally not available to ease the sting.
Still, it IS possible to promote robust SMS text message marketing campaigns and comply with TCPA. The time to get this right is before there’s a problem.
Legal considerations for medical practice social media marketing
The same issue, proper consent, is triggered with social media marketing on platforms such as Facebook. We have been preaching about this for several years now. Healthcare was late to the litigation fiesta. If you are doing ANY text message marketing or social media advertising – or just considering it, get in touch with iScreamSocialMedia now. They can help you find the right people to assist in providing proper consents enabling you to take advantage of text message marketing, email marketing, and social media advertising. Feel free to reach out to Medical Justice as well and please reference this newsletter so we can ensure you are well-protected in 2019 and beyond.
For help with finding the right people to help, reach out to us at firstname.lastname@example.org, or give us a call at (305)455-0720.