could result in penalties.
Telephone Sales Rule and the National Do-Not-Call Registry
The Federal Trade Commission established the National Do-Not-Call Registry (DNC Registry) under the federal Telephone Sales Rule (TSR). Consumers may add their phone numbers to the DNC Registry to limit the telemarketing calls they receive. Indeed, dentists and members of the dental team may have added their telephone numbers to the DNC Registry to limit telemarketing calls.
It appears unlikely that a dental practice’s routine appointment reminder calls to patients who have existing appointments would be deemed in violation of the TSR. However, it is conceivable that TSR issues could come up if a dental practice implemented a telephone campaign that could be construed as being for the purpose of selling goods or services, or soliciting consumers, particularly if the campaign included individuals who do not have an “existing business relationship” (as defined in the TSR) with the dental practice.
There are two kinds of “established business relationships” under the TSR:
One is based on the consumer’s purchase, rental, or lease of the seller’s goods or services, or a financial transaction between the consumer and seller, within 18 months preceding a telemarketing call. The 18-month period runs from the date of the last payment, transaction, or shipment between the consumer and the seller. The other is based on a consumer’s inquiry or application regarding a seller’s goods or services, and exists for three months starting from the date the consumer makes the inquiry or application. For more information, please see Exemptions to the National Do Not Call Registry Provisions section of Complying with the Telemarketing Sales Rule.8
Note that this definition of an “established business relationship” may exclude certain individuals who may be a dental practice’s “patients of record.”
If the TSR applies, the dental practice must take a number of steps before a telephone call is made. For example, the dental practice must check to make sure that the number is not on the DNC Registry. The dental practice must also maintain its own do-not-call list and add any consumer who has asked not to receive any more calls from or on behalf of the dental practice. Calling a consumer who has asked not to be called potentially exposes a dental practice to a civil penalty. Even if a call is to a telephone number that is not on the DNC Registry or the dental practice’s own do-not-call list, additional requirements apply. For example, the caller must provide certain material information to the consumer.
TSR violations can result in civil penalties of up to $16,000 per violation, and violators may also be required to pay redress to injured consumers.
Moreover, whether or not a call is permissible under the TSR, it must comply with other applicable laws, such as the Federal Communication Commission’s regulations under the Telephone Consumer Protection Act and the Privacy Rule of the Health Insurance Portability and Accountability Act of 1996 (HIPAA).
A qualified attorney can provide information about how these laws apply to a proposed telephone campaign.
Telephone Consumer Protection Act
The Telephone Consumer Protection Act (TCPA) regulates certain telemarketing “robocalls,” text messages, and fax advertisements. Robocalls are communications made using automatic telephone dialing systems. Just make a covered call using equipment that is capable of automatic dialing may violate the act, even if the equipment’s automatic dialing feature was not used to make the call. There are exceptions for communications made with the recipient’s written “prior express consent” and recipients who have an “established business relationship” with the caller, as these terms are defined under the Act. There is also an exception for certain healthcare messages.
It appears unlikely that the TCPA would apply to dental practice’s routine appointment reminder telephone calls and text messages, but these are limitations to the healthcare message exception.
A TCPA violation can result in damages of actual monetary loss or $500, plus $1500 if the violation is deemed “willful” or “knowing.” TCPA compliance is complex and the penalties are severe. A qualified attorney can evaluate a dental practice’s proposed use of telephone, text or fax communications to determine whether the TCPA may come into play.
CAN-SPAM
The CAN-SPAM Act is a federal law that applies to commercial messages sent via email. The FTC, which enforces the CAN-SPAM Act, defines an emailed commercial message as “any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service,’ including email that promotes content on commercial websites.” The FTC notes that there is no exception under CAN-SPAM for business-to-business email.
CAN-SPAM establishes requirements for commercial messages, such as the requirement that each email give the recipient the right to opt out of future emails. Opt out requests must be honored within the timeframe established by the Act. Other requirements also apply, such as the requirement that the email include the sender’s valid physical postal address.
The penalties for a CAN-SPAM violation can be severe. Each separate email in violation of the CAN-SPAM Act is subject to penalties of up to $16,000.
A Canadian anti-spam law that took effect on July 1, 2014 imposes severe penalties on individuals and businesses that send commercial electronic messages without consent.
HIPAA
The HIPAA Privacy Rule requires covered dental practices to permit patients to request to receive communications by alternative means or at alternative locations, and covered dental practices must accommodate reasonable requests. Thus, phoning, emailing or texting a patient who has reasonably requested to be contacted only by another means could violate HIPAA, whether or not the telephone call or text implicates the TSR, TCPA, CAN-SPAM Act, or other federal or state law. In addition, HIPAA restricts certain marketing communications, whether the covered entity makes the communication, or a third party makes the communication either on behalf of the covered entity or using information supplied by the covered entity, such as patients’ names and contact information.
Related References and Resources
• Question 121: What Effect Did the 2013 Omnibus Final Rule Have On HIPAA Compliance? (Scroll down to “Subsidized Marketing Communications” and “Sale of Patient Information”)
• Q&A for Telemarketers & Sellers About DNC Provisions in TSR
http://business.ftc.gov/documents/alt129-qa-telemarketers-sellers-about-dnc-provisions-tsr
• CAN-SPAM Act: A Compliance Guide for Business
www.business.ftc.gov/documents/bus61-can-spam-act-compliance-guide-business
• CRTC, Canada’s Anti-SPAM Legislation
www.crtc.gc.ca/eng/casl-lcap.htm
• Section 164.522(b) of the HIPAA Privacy Rule
4 Anderson, Myles. “2013 Study: 79 percent of Consumers Trust Online Reviews as Much as Personal Recommendations. “Search Engine Land. June 26, 2013. www.searchengineland.com/2013-study-79-of-consumers-trust-online-reviews-as-much-as-personal-recommendations-164565.