The writing seems to be on the wall in Zani v. Rite Aid. The Second Circuit’s decision, once unsealed, will add to the body of case law that will help the healthcare community further understand the boundaries between healthcare communications and marketing communications. As healthcare providers seek to build and maintain a relationship with consumers by communicating with them throughout the so-called “customer journey,” this case, like Latner, will have far-reaching implications for revenue cycle professionals.
Last spring, insideARM reported on Zani v. Rite Aid Headquarters Corp., 246 F. Supp. 3d 835 (S.D.N.Y. 2017) -- a case that considered the circumstances under which automated calls that deliver “a healthcare message” fall within the the scope of the FCC’s 2012 Healthcare Exception. At that point in the case, the plaintiff had requested a class action certification, which was denied, and defendant Rite Aid moved for and received summary judgment. The plaintiff appealed, and in the first week of February 2018, eighteen minutes of oral arguments were heard in NY’s Second Circuit.
So far in the appeal
The court wasted no time during oral arguments invoking a decision on a similar case that was recently decided in the same district. Almost immediately, the judge asked the plaintiff’s attorney to explain the material difference between the content of the message in Zani and that in the decided case of Latner v. Mount Sinai Health Sys., No. 17-99-cv (2d Cir. Jan. 3, 2018). Zani’s lawyer argued that the difference was in the intent of the messages, and pointed out that the plaintiff in Latner had conceded the message in that case was a healthcare message, where Zani had alleged Rite Aid’s message had a marketing purpose.
The judge continued to push the question: What was the substantive difference between the words in the Latner text, and those in the Zani text? Counsel arguing for Zani kept insisting that although the words were similar, the fact that the words in the Zani text were taken directly from a copy deck that was also used in Rite Aid marketing campaigns on TV and radio demonstrated a marketing intent that had not been present in Latner.
The judge then asked, “Why would the fact that the same words appear in an ad, automatically make it marketing?” The judge noted that focusing on subjective facts in each case, such as whether or not a robocall contained the same words as a marketing campaign was not a workable standard for deciding a case like this. He cautioned that if we failed to make the examination about the content in the text, then every case in the future would be a mess of subjective questions about motivation, instead of the words in the message standing on their own. In essence, the court has to look at the text, and decide whether or not they are ads. On an examination of the words themselves, and not the context, one has to ask: From a customer’s perspective, does this message relate to the specific healthcare needs of the people who are receiving it? The judge saw the court’s work as sorting that out, and not the motivations or what marketer’s copy deck the words might echo.
Zani’s counsel kept at it, arguing that the FCC says you have to look not only at the words, but the purpose of the communication. He added that Latner looked only at the definition of marketing under HIPAA, which requires a review of the primary purpose and evidence as a matter of law.
Counsel on behalf of Rite Aid kept it simple, adding that if the communication conveyed a healthcare message, it, by definition, falls under the Healthcare Exception. She noted an established fact in the case, which is that Rite Aid sent only one message, and only to those who had previously been vaccinated by prescription. The purpose of Rite Aid’s message, she explained, was primarily about reminding the consumer to get another flu shot. There was no dispute that Rite Aid is in the business of making money, but this was a healthcare message. She volunteered that yes, the ancillary benefit of any program is to market the brand and help the company make money.
Counsel for Zani argued that the interpretation of the Healthcare Exception was too loose, and that that if one were to look beyond the context of flu shot, and consider what it would mean if a drug store began to text everyone who had ever bought heartburn medication with a reminder to buy more. It would mean that consumers would be barraged with marketing messages masquerading as healthcare messages.
The judge asked, “Why wouldn’t it be appropriate for a court to look at a message, and simply decide whether it delivered a healthcare message or a marketing message?” He noted that while there are ways to pervert the Healthcare Exception, the judge did not seem convinced that Rite Aid had done so by sending one flu shot message to customers who had had a flu shot in the past.
In creating the 2012 healthcare Exception, the FCC recognized that automated healthcare messages educate patients, promote adherence to treatment plans, lead to better healthcare outcomes, and serve the public interest. The Latner case is significant because it established a precedent for New York’s Second Circuit and may well lead other courts to interpret the 2012 healthcare Exception broadly to encourage valuable calls and text messages providing patients with important healthcare reminders. Latner ruled that a healthcare provider, Mount Sinai, did not run afoul of the TCPA by sending a patient a flu shot reminder text message after the patient had given consent to use his information—including his cell phone number—for “treatment” purposes.
Facts in Latner
In Latner, plaintiff alleged that Mount Sinai Health System, Inc. (Sinai) and one of its facilities, West Park Medical Group, P.C. (WPMG) violated the TCPA by sending flu shot reminder text messages. At WPMG, the plaintiff had filled out new patient forms, including a consent to use his health information for “treatment.” In 2011, Sinai hired a third party to send certain text messages, including flu shot reminders, on behalf of WPMG. Later in 2011, plaintiff returned to WPMG for an exam but declined any immunizations. In 2014, plaintiff received a single flu shot reminder text message from WPMG, which read:
It’s flu season again. Your PCP at WPMG is thinking of you! Please call us at 212-247-8100 to schedule an appointment for a flu shot.
This single text incited a TCPA claim. The District Court granted defendants’ motion for judgment on the pleadings, finding that the 2012 Healthcare Exception from written consent applied because the text relayed a healthcare message.
The plaintiff appealed to the Second Circuit, which decided that the District Court had correctly found that the 2012 Healthcare Exception applied. However, that court did not determine whether the plaintiff had provided any prior express consent--still needed under the TCPA’s general consent requirement. The Second Circuit still affirmed, writing that by giving his cell phone number to WPMG, and granting consent to use his information for treatment purposes, Latner had provided prior express consent.
This is a much broader interpretation (of the Healthcare Exception) than is needed in a case like Zani. In Zani, the calling program contacted only patients who received flu shots from Rite Aid in the prior 12 months. The calling program was very limited, and delivered an individualized healthcare message. The crux in Zani was about “whether a nexus exists between the subject matter of the call and the established healthcare needs of its recipient.” Zani, 246 F. Supp. 3d at 851. The 2017 Zani court found that the calls “alerted those patients to the availability of a medication treating the precise medical issue for which they had previously sought care.” Id. at 851-52. In contrast, the plaintiff in Latner had declined to receive a flu shot years before getting a single flu shot reminder text. Rather than limiting the texts to recent flu shot recipients, defendants in Latner sent flu shot reminder texts to all active patients who had visited the office in the previous three years.
Stay tuned. And also, carefully review the documents that provide a patient's consent to contacted. Revenue Cycle professionals should ensure that the permission, purpose, and contact channel(s) are very clear; that there is a mechanism to update the data; and that updates are communicated as needed to third parties or others in the organization.