Originally published in
Healthcare Call Center Times in November 2020.)
CHICAGO, IL—Just when should you get permission from patients to record calls with them? The answer at one time was pretty straightforward. “The laws in most states said that one party has to consent to the call being recorded,” says Michael Lieber, President of the Chicago-based Lieber & Associates. “There are 14 states that are all party states.” These states require both parties in the conversation to consent to the recording. These laws were written to cover recording and privacy in all types of situations, he adds.
“Many or most have an announcement that your inbound call may be recorded or monitored,” he says. “However, some may not play this to all callers, and so it is only heard by those who wait, which is a problem. A handful could be following an internal decision made decades ago that, because they are in a one-party state, they don’t need consent. That may have been true in 1995, but not today with cell phones.”
One of those all party states is California. Georgia, on the other hand, is a one party permission state. So, for example, let’s say that a Georgia resident is on vacation in California and contacts the call center to make an appointment to see a doctor once they return to Georgia. Because the call is originating in California, the all consent rule would apply to the call if recording is taking place, he says.
Then again, let’s say that a resident of a one party consent state is hospitalized in that state and then, upon discharge, goes to an all party state to recover, the post-discharge call from the call center, if recorded, would have to have the permission of the patient to continue, he says.
Times change, and thanks to cell phones, now it is not so easy to locate where a call is coming from or to where an outbound call is made. For example, a call center in the one-party Idaho may do an outbound post-discharge call to a patient 24 to 48 hours later, calling the patient’s landline. The patient answers, but they may be answering the call on their cell phone, which has been automatically forwarded from their landline. Or perhaps that patient does answer on their landline this time and then a week or two later is traveling in an all party state and receives the forwarded call on their cell.
Adding to this discussion is that many people, particularly those in the younger generations, do not have landlines and therefore only give their cell number to the hospital. That post discharge call could find the patient virtually anywhere.
That is why Lieber advocates healthcare call centers simply adopt recording permission rules that assume that all calls coming in and going out are in need of all party permission. That would automatically take care of the permission question. This would be especially important for the outbound calling sector of the healthcare call center world. “My guess is that 50-90 percent are not obtaining recording consent on outbound calls, since outbound calls are typically opened with a live rep (not a recorded message, as on inbound),” Lieber says.
But, how should the call center ask for this permission? Lieber says there are two schools of thought here; the one chosen might depend on the advice of each call center’s legal counsel. Some might say that once the recording for quality purposes and training statement is made, if the caller simply continues with the conversation, then that constitutes permission. Others might want the call center to make a statement similar to the following once the initial recording notice is given: “Continuing with this call constitutes your permission to have this call recorded.”
Lieber suggests that if a patient does not want their call to be recorded, then an alternative be presented to them to call back on a non-recorded line. For those cases, he suggests that the call center representative take notes on the conversation that are then placed in the call center’s computer system.