Ericka L. Adler, JD, LLM has practiced in the area of regulatory and transactional healthcare law for more than 20 years. She represents physicians and other healthcare providers across the country in their day-to-day legal needs, including contract negotiations, sale transactions, and complex joint ventures. She also works with providers on a wide variety of compliance issues such as Stark Law, Anti-Kickback Statute, and HIPAA. Ericka has been writing for Physicians Practice since 2011.
As convenient as text messaging may be, there are certain issues for healthcare providers to consider when using any communication method with patients. Here are seven to consider.
I recently received an inquiry from a reader regarding whether or not physicians and patients should be texting. He wondered whether this was an acceptable mode of communication to query patients regarding innocuous items, such as blood pressure, appointments, satisfaction issues, etc., without crossing legal limits.
In previous blogs, I have discussed the use of social media in a medical practice, including using Facebook, Twitter, and other avenues of communication. Messaging is another quick and effective method of corresponding and can be performed from an iPad, telephone, computer, or other device. Although e-mails also come to smartphones, texting works on all types of cellular devices so messages potentially reach more patients.
As convenient as messaging may be, there are certain issues for healthcare providers to consider when using any communication method with patients, including the following:
1. Be certain the number from which you text is not your personal number unless you intend to provide patients such access. Instead, text from a computer or consider a service that de-identifies the sender’s number.
2. Remember that just because you have a patient’s mobile telephone number in the record, this does not mean the patient has provided consent for you to send text messages. Specific consent should be obtained from each patient to not only receive texts, but also the types of text messages that are acceptable. A patient may want to receive appointment reminders or test results, but not welcome surveys or marketing materials. A practice must also make it easy for a patient to terminate consent, by text or otherwise.
3. There are federal communication regulations which prohibit sending of unwanted text message to wireless phone numbers if the messages are sent using an auto-dialer. This law and others implicated by mass texting schemes should be reviewed with counsel.
4. Determine whether texts received by patients will result in a charge to them under their cellular plan, and make sure the patient is aware of such charge as part of their consent. Some practices also charge a fee to patients who participate in a practice program to manage medications or particular medical issues. All such fees should be clearly explained and agreed to in writing by the patient.
5. Regularly update the telephone number maintained for every patient since numbers change frequently. Patients should be regularly reminded to update this information with the practice at every office visit and each time they call the practice. Remember, the receipt of a text intended for a patient by another third party can pose a privacy risk.
6. How secure is text messaging and how is that risk being managed by your practice? Text messages can reside on your mobile device even if you think they are deleted. This information could also be exposed if the device is lost, stolen, or recycled. It’s important that this risk be explained to patients. I highly recommend some authentication or password be required for patients to access text messages. A practice should also consider specific services that offer secure or encrypted texting.
7. Under HIPAA, protected health information includes all information “used, in whole or in part, by or for the covered entity to make decisions about individuals.” This means that if any information gained from text messages between the parties are used to make decisions about the patient’s care, these messages may be subject to the patient’s rights under HIPAA. As a result, the practice may need to save the texts it is sending/receiving in the patient record. If access to these text messages cannot be provided to patients in order for them to review and/or amend the messages, there may be a risk of noncompliance with the law.
There is no doubt that messaging can be used effectively to collect patient information, provide greater oversight over a patient’s medical condition and even provide tips and announcements to patients. Patients would even benefit from reminders to take medication, schedule follow-up appointments, or take care of a delinquent bill. However effective the use of texting may be, a practice should not get excited about its potential use without taking the time to create an effective and legal texting strategy.
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