TCPA-safe patient outreach and SMS guide

Express consent vs prior express written consent

The single most important distinction inside the TCPA is the difference between express consent and prior express written consent. Getting this wrong is how a well-intentioned patient-communications program becomes an eight-figure class-action defendant.

Express consent

Express consent covers informational (non-marketing) calls or texts to a cellular number. It is typically evidenced by the patient providing their mobile number to the covered entity on an intake form, in a portal registration, or through an inbound call. FCC guidance treats the voluntary provision of a mobile number, in the context of an existing relationship, as consent to receive informational messages at that number related to the reason it was provided.

Informational messages that clearly qualify include appointment reminders, appointment confirmations, prescription refill notifications, laboratory result availability alerts, insurance eligibility notifications, pre-procedure preparation instructions and post-discharge follow-up. The moment a message mixes in a promotional element — "book your next aesthetic treatment at 20% off" — it is no longer informational, and express consent does not carry the day.

Prior express written consent

Prior express written consent, defined at 47 CFR 64.1200(f)(9), is required for any call or text that constitutes telemarketing or contains marketing content, when made using an automatic telephone dialing system or an artificial or prerecorded voice. The written agreement must:

• Bear the signature of the person called (electronic signatures under E-SIGN qualify).
• Clearly authorise the identified seller to deliver, or cause to be delivered, advertisements or telemarketing messages.
• Include the telephone number to which signatory authorises such messages to be delivered.
• Include a clear and conspicuous disclosure that signing is not a condition of purchasing any property, goods or services.
• Include a clear and conspicuous disclosure that consent is being given for advertisements or telemarketing messages using an autodialer or prerecorded/artificial voice.

The healthcare treatment and emergency exemptions

The TCPA and FCC rules contain two healthcare-relevant safety valves that reduce (but do not eliminate) friction.

Emergency purpose

47 USC 227(b)(1)(A) exempts calls made for emergency purposes. FCC declaratory rulings have applied this narrowly — a product recall involving imminent health risk, a natural disaster notification, a public health emergency. Routine communications do not qualify.

HIPAA-covered healthcare messages

The FCC 2015 Declaratory Ruling created a narrow exemption for healthcare messages subject to HIPAA, made to a wireless number for a healthcare purpose (appointment/exam confirmations and reminders, wellness checkups, hospital pre-registration instructions, pre-operative instructions, lab results, prescription notifications, home healthcare instructions). The exemption comes with conditions: the messages must be for a healthcare (not marketing) purpose, must not contain telemarketing or advertising content, must be sent only to the wireless number of the individual, must be strictly limited in length and frequency, must offer an easy opt-out, and must honour opt-outs immediately.

The moment a message contains a promotion — an aesthetic-service special, a new-patient offer, a screening-package discount — it falls outside the healthcare exemption and requires prior express written consent.

What a compliant consent capture screen actually looks like

A defensible consent capture screen for marketing SMS from a healthcare organisation contains, in this order: the identified single seller (the exact legal entity name and DBA if used), a description of the categories of message that will be sent (appointment offers, service line launches, seasonal wellness campaigns), a clear statement that message-and-data rates may apply, a message frequency disclosure ("up to 4 messages per month"), the FCC-required disclosure that consent is not a condition of any purchase, and the FCC-required disclosure that messages will be sent using an autodialer or prerecorded/artificial voice. The consent action is a single, unambiguous checkbox that is not pre-ticked, coupled with the phone number capture field on the same screen.

Post-consent, the recipient receives a confirmation SMS containing the seller identity, message-frequency reminder, message-and-data rates disclosure, and clear opt-out instructions (Reply STOP to unsubscribe, HELP for help). This confirmation is not the marketing message — it is the consent evidence.