This checklist has been created for convenience only and does not constitute legal advice. If you have questions or concerns regarding texts or phone calls you're planning to schedule to patients, we recommend consulting your designated HIPAA compliance officer and the FCC/TCPA guidelines.
The HIPAA Privacy Rule permits healthcare providers and pharmacy staff to communicate by phone with their patients for the purpose of refill reminders or other information related to prescribed medication, or for a commercial purpose, but does not include or introduce an advertisement. While placing these phone calls, it is important to use the "minimum necessary" information to achieve the purpose of the call. For example, you may wish to state that a member of the household has a prescription due to be refilled, as well as the pharmacy name and phone number, without going into any further details regarding the specific medication.
The Telephone Consumer Protection Act (TCPA) was created by the FCC to prevent consumers from receiving a barrage of messages to their cell phones without their consent. The Health Care Exception to the act allows for any messages related to health education, and promotion of adherence to treatment plans, to be sent to patients without requiring written consent first.
All of our sample scripts for calls and texts meet these requirements, but follow the checklists below to ensure any calls or texts you create follow the proper guidelines.
If you answer YES to any of the following, your recording or text might NOT meet HIPAA, FCC and TCPA requirements:
☐ Does my recording/text include more than the minimum necessary amount of patient health information? Including information like:
☐ Patient names and/or birthdays
☐ Insurance plan names
☐ Patients' specific health issues
☐ Does my recording/text include more than the minimum necessary amount of information related to a patient's prescription(s) and health regimen? Such as:
☐ A specific medication
☐ The medical purpose of the prescription
☐ The cost of a medication
☐ If my call/text is not directly related to prescribed medication or clinical services, does it include an advertisement? Like one of the following:
☐ Mention of a specific item or items for sale at the store
☐ Promotions or sales at the pharmacy*
*according to FCC/TCPA rules you can send marketing calls to patients about sales and promotions only if they have signed a form giving the pharmacy permission.
The TCPA deems that a communication is not "marketing," and therefore ok to send out, if:
- It is made to describe a health-related product or service that is provided by the entity making the communication (e.g., Health screenings and vaccines, which many pharmacies provide for their patients)
- It is made for treatment of the individual (e.g., Refill reminders)
- It is made for case management or care coordination for the individual, or to direct or recommend alternative treatments, therapies, health care providers, or settings of care to the individual (e.g., A call regarding a nutrient depletion caused by a patient's medications)
You want to send out a call or text to all of your patients on a specific drug (let's say, Ziprasidone) and on a specific UnitedHealthCare plan because the plan has (hypothetically) dropped coverage for that drug.
Here's a call that would violate HIPAA Privacy Rules and FCC/TCPA guidelines:
"Hello! Your prescription for Ziprasidone is no longer covered by UnitedHealthCare. You should consider Latuda, a great alternative for only $300 per month! Please contact the pharmacy for more information."
Anyone who answered this automated call would immediately know detailed PHI about the patient's medication and health coverage. A specific drug is also being advertised, with the intention to receive money for the drug (Latuda) from the patient.
Here's a call that meets all guidelines to protect patient privacy:
"Hello! Your prescription drug plan recently changed coverage for one or more drugs you are prescribed. Please contact the pharmacy for more information."
This call leaves a lot to the imagination. It lets the patient know they should assess their current plan's coverage, but no information about the patient's specific drugs, health, or health coverage is revealed. Nothing is advertised either, so no marketing has taken place.
For ideas of messages following all the guidelines above, click here to read some sample scripts!