The Telephone Consumer Protection Act of 1991 ("TCPA") has certain exceptions that apply to health care companies, but how those exceptions apply is hardly clear. In the recent words of Judge Timothy C. Batten, Sr. of the Northern District of Georgia, "Notwithstanding the volume of ink spilled on this regulatory crusade, there is a remarkable lack of clarity regarding the extent to which calls ordinarily subject to the TCPA are exempted because they are health care related."

One important TCPA exception for health care companies is the health care message exception. The FCC's "Telemarketing Rule" requires prior written consent for autodialed or prerecorded telemarketing calls. However, this consent requirement does not apply to calls that deliver "a 'health care' message" as defined in the Health Insurance Portability and Accountability Act of 1996 ("HIPAA") and corresponding regulations. Under HIPAA, "health care" includes "care, services, or supplies related to the health of an individual." HIPAA exempts from its definition of marketing all communications made "for treatment of an individual by a health care provider . . . or to direct or recommend alternative treatments" to the individual.

Does the health care message exception still require the consent of the patient even though it does not require the patient's written consent? At least one federal judge (Judge Jacqueline Scott Corley of the Northern District of California) believes that the exception requires no patient consent at all. Jackson v. Safeway, Inc. Other district courts, however, most recently Judge Batten in Georgia, ruled that general consent is still required. Coleman v. Rite Aid of Ga., Inc.

The Second Circuit has recently issued the first appellate ruling on this important issue. In Latner v. Mount Sinai Health System, the plaintiff went to a Mt. Sinai facility in 2003, when he gave the facility his cell phone number and signed a consent form. The form stated that Mt. Sinai could use the plaintiff's information "to recommend possible treatment alternatives or health-related benefits and services."

Eight years later, Mt. Sinai hired a vendor to send mass text messages to all patients who had visited its facility. Later that same year, the plaintiff visited the facility and declined any immunizations.

Three years after that visit, the plaintiff received an unsolicited text message from the vendor encouraging the plaintiff to get a flu shot. The plaintiff sued Mt. Sinai under the TCPA. After the district court granted Mt. Sinai's motion for judgment on the pleadings, the plaintiff appealed. The Second Circuit affirmed based on the health care message exception under the TCPA but held that the exception required consent.

The district judge, like Judge Corley in California, had applied the health care message exception regardless of patient consent. The Second Circuit disagreed. The flu shot text was a "health care message" under the TCPA, but this was not enough to save Mt. Sinai from liability. The court held that the health care message exception would not apply unless the plaintiff had given his consent to receive the text message. Fortunately for Mt. Sinai, it had the plaintiff's signed consent form from his first visit in 2003, which the court found sufficient to convey consent.

The Point: Prudent health care companies will get the patient's consent before sending automated texts or calls to the patient's cell phone, even if the messages relate to health care.