SCOTUS ruling opens door for health plans to interact with members via text messaging

A recent US Supreme Court ruling opens the door for health plans to interact with members via text messaging. Abner Mason, Founder and CEO of ConsejoSano, describes the ruling as a “game changer for health plans and other health care stakeholders” and their ability to communicate with members in their preferred method.

ConsejoSano is a patient engagement and navigation organization that works with clients across the country to help them connect with hard-to-reach patient and health plan member populations. ConsejoSano evaluates data to identify “cultural cohorts” and then designs content for those specific groups.

“We are engaging people, we’re not translating. We are creating content that’s much more personalized and customized to the member or the patient. And when you do that, when you treat people like who they are really matters, it’s not a one size fits all, you get better results and you get higher engagement.”

ConsejoSano has found that text messaging is the preferred form of communication for many of these cohorts. Mason says, however, that health plans and health systems across the country have been hesitant to communicate via text messaging due to uncertainty surrounding the Telephone Consumer Protection Act (TCPA).



The TCPA was enacted in 1991, prior to the widespread use of text messaging. The TCPA imposes restrictions on making phone calls through automatic dialing systems without getting the expressed pre-approval of the person being called.

Marcia Augsburger, Partner at law firm King & Spalding, says health plans have sought exemptions in the past for health care related calls and text messages, but the Federal Communications Commission (FCC) has repeatedly rejected the requests.

On April 1, 2021, in a ruling on a non-health-related case brought initially against Facebook, the Supreme Court ruled that texting known numbers associated with known individuals does not fall under the definition of an “auto-dialer” under the TCPA. Augsburger says this means the TCPA doesn’t apply to text messaging from health plans to members.

“So, what that means of course, is for health plan members and providers who have last known contact information that includes mobile phone numbers, and they want to reach out to patients, the TCPA is not going to preclude them from sending mass text messages advising them of opportunities and health care types of opportunities that they can be involved in.”

Mason says this ruling resolves what has long been a barrier for health care stakeholders who wish to communicate via text messaging but fear they will be in violation of the TCPA.

“Based on this Supreme Court ruling, TCPA does not apply to health plans when they’re engaging their members for health care related communications – whether they use the phone or text message.”

Mason says the ruling will also impact health equity and trust.

“We really believe this is a health equity issue. This is part of meeting people where they are and the shame is that it’s taken this long…and the fact that health plans have been unable to engage their members in the way the member prefers is just an example of how our health care system needs to changed. And so, we should applaud when there is positive change.”