A New York U.S. District Court recently granted summary judgment in favor of defendant Rite Aid Headquarters Corporation in a Telephone Consumer Protection Act (TCPA) class action. Healthcare providers can take away an important, preventive blueprint to avoid litigation.
A copy of the court's order can be found here.
Before the Court was the Plaintiff's motion for class certification, under Federal Rule of Civil Procedure 23, and the Defendant's motion for summary judgment or, in the alternative, partial summary judgment.
Editor’s Note: A motion for summary judgment is based upon a claim by one party (or, in some cases, both parties) that contends that all necessary factual issues are settled or so one-sided they need not be tried. The summary judgment is appropriate when the court determines there no factual issues remaining to be tried, and therefore a cause of action or all causes of action in a complaint can be decided upon certain facts without trial.
The court’s opinion and order found that, since the flu shot reminder calls in the complaint were “health related,” Rite Aid did not have an obligation under the TCPA to obtain express written consent. However, lest providers think that any communication they send will be exempt from the long arm of the TCPA, this case still holds some cautionary pivot points they would do well to consider in their communications with patients, former patients and prospective patients.
In Zani v. Rite Aid Headquarters Corp., 14-cv-9701, plaintiff Robert Zani alleged that Rite Aid violated the TCPA, 47 U.S.C. § 227 by placing a recorded flu shot reminder to the cell phones of the drug store’s patrons who had previously received the shot at Rite Aid Stores. At the time Plaintiff Zani received his shot, it was undisputed that he provided Rite Aid with his cell number, and had also consented in writing more than once to be contacted by Rite Aid regarding “refill reminders . . . or health related benefits and services.”
Rite Aid argued that not only had Zani consented to the calls, he had provided his number in connection with his previous flu shot. Plus, they argued, the calls fell well within the broad “Health Care Rule,” 47 CFR 64.1200(a)(2), adopted under the TCPA in 2013, under which “health care messages” are exempt from written consent requirements for prerecorded and autodialed calls made to cell phones.
The court agreed with Rite Aid and found three factors present in the undisputed facts of this case germane to defining the scope of the Health Care Rule: (1) The call concerned a product or service that is health related, which would include administration of medication; (2) The call was made to a patient with whom the health care provider had an established health care relationship; and (3) The call concerned the individual health care needs of the patient recipient. (The prerecorded call contained a reference to a special flu shot for those over 65, and Plaintiff Zani was over 65).
Although these factors were sufficient, the court suggested they were not always necessary to determine whether a call that delivered a healthcare message---albeit a marketing call---was subject to the Health Care Rule. In other words, because the call was deemed a healthcare call, Zani’s argument that it constituted “marketing” was void, because the Health Care Rule applies to any message, whether marketing or not, that is otherwise health related.
Since Zani had provided Rite Aid consent before the call was made, and the call did not cause Zani to incur a cost from his cell provider, and was not counted against any plan limits that applied to Zani’s wireless account, the court granted summary judgment and denied his motion for class certification.
Given that the scope of the Health Care Rule has long arms and is open to judicial interpretation, this decision provides some good structure and offers the healthcare provider community some clarity on the application of the exemption. Even with a good outcome for providers, the case makes us bristle at the effects a similar law suit could have on, say, a small healthcare provider without Rite Aid’s deep pockets. Litigation of this nature could be economically devastating.
Far beyond the purview of a drugstore pharmacy chain, the types of calls a healthcare provider could potentially deploy (for which there is exigency and a health care treatment purpose) are more numerous, and could include appointment and exam confirmations and reminders, calls about wellness check-ups, hospital pre-registration instructions, pre-operative instructions, lab results, post-discharge follow-up intended to prevent readmission, prescription notifications and home health care instructions.
It’s great news for providers that Zani v. Rite Aid establishes that while some of these calls could also include a marketing intent (like vaccine reminder calls), once they satisfy the conditions of the Health Care Rule exemption, prior express consent is not required to place them.
Consent protocols seem like cheap insurance
For all the risk management issues providers cannot directly control, developing a clean consent/withdrawal of consent policy is not one of them. Could healthcare providers, when requesting patient information, take pre-emptive steps to avoid potentially costly litigation centered on the issues argued in Zani?
Consider developing simple protocols at every point where patient information is collected that:
- Establish consent, even if as a healthcare provider, you may not need it. Specifically request cell phone numbers and email addresses at all registration points.
- Disclose, in plain English, that furnishing the number or email address relays consent for the provider (and its vendors) to call or send messages (potentially automated/prerecorded or artificial voice) intended to service the relationship and the account, including informational healthcare and/or marketing communications.
- Clearly define the terms of the consent period. Will the consent continue into perpetuity? Until specifically withdrawn? Will it terminate one year after the last account activity? Consider whether your technology infrastructure is capable of automatically weeding your call lists of inactive patient numbers.
- Set forth a simple opt-out method, including an email address, a website and a snail mail address on all communications.
It’s entirely possible that these TCPA suits will die down once there is sufficient case law to guide the application of the Health Care Rule exemption. In the meantime, establishing policies that would fortify the defense of providers seems like a sound use of time and resources.