Compliance News Update: The Importance of Consent to Optimize Contacts

As the saying goes, “The more things change, the more they stay the same.” Even amid major regulatory shifts, there are always compliance concepts that stay consistent. The essential step of gathering a strong consent record at the time of service continues to be one of those constants. Consent is a topic all providers should include in their annual reviews to optimize their revenue potential by maximizing the allowable contact methods with patients.

Here are five key questions to consider when reviewing internal consent procedures:

• Has the consent language been included within a document that is executed during each independent visit? 
  • Best practice would be yes. While it may be convenient to include the language only in a new patient establishment process, this practice may result in long-term disconnects with contact method changes as well as the patient’s direct understanding of their agreement.

• When a patient refuses to provide consent at the time of service or revokes their consent after services, how is that action being indicated within that account to ensure regulatory compliance?
  • Regulations, such as the FCC’s Revocation of Consent Rules, establish required practices when revocations are communicated, including but not limited to application within a reasonable timeframe, not to exceed 10 days. Being able to clearly identify those accounts without consent is crucial to avoid patient frustration and potential TCPA litigation. 

• Are future contact method possibilities included in the language today?
  • Plan for tomorrow. Even if a contact method is not used today, it could be implemented during the life of the account, so include the possibilities in the language to cover the future.

• Does the language provide a clear and direct reference to all partners that may interact with the account?
  • To get the best long-term benefit, ensure the consent language covers the provider along with all partners and vendors that may interact with the account. If the consent only covers the provider, it will limit the actions a partner or vendor can carry out as part of the services.

• What is the retention and production process for consent documentation?
  • Gathering consent is important, but even more critical is being able to produce the executed consent document when there are questions or conflicts surrounding the same. Implementation of a storage mechanism that maintains the documents for at least four (4) years and is searchable to locate the document to produce when needed is a must. If the consent document cannot be produced when needed to confirm the agreement, then it will be deemed as no consent.

Utilizing these five questions to kickstart an internal consent review conversation can be just the starting point of a commitment to clear consent management. If the conversation determines that updates to the language and/or process are desired, the following consent paragraph example includes optimum language for the provider as well as business partners and vendors that work together in connection with the services provided:

“You expressly consent and agree that, in order to discuss or provide services for your account(s) (the "Accounts") or to collect amounts you may owe, [PROVIDER’S NAME], and its officers, agents, affiliates, employees, first and third-party debt collection agencies, and any affiliated or business associated service providers or vendors of any of these parties, associated therewith (collectively, "We") may contact you by telephone at any telephone number associated with the Accounts, including wireless telephone numbers, which could result in charges to you. You confirm that any telephone number you provide is associated with you, not a third party; therefore, you have the right to give consent for the same. You expressly consent and agree that We may also utilize your information to contact you by letters or notices via mail, by sending emails, using any email address you provide to us, by sending text messages or by pre-recorded or artificial voice or voice messages, via predictive or automatic dialing methods, systems, or devices, and pre-recorded or artificial voice announcements or prompts at any telephone number associated with the Accounts, including landlines, wireless or mobile telephone numbers, regardless of whether you incur charges as a result.”

In closing, before implementation of these best practice recommendations, the specific consent language, practices, and procedures should be discussed with your internal compliance and/or legal counsel to ensure the best internal compliance for your organization. Please note, I am not an attorney, and the above are compliance recommendations, not legal advice.