Many medical offices and wellness clinics send out flu shot reminders to patients. But have patients consented to receive those reminder text messages or robocalls? Yes, under certain circumstances, said the U.S. Second Circuit Court of Appeals in Latner v. Mount Sinai Health Sys., Inc., No. 17-99-cv (2d Cir. Jan. 3, 2018). This ruling is notable because it is the first appellate court decision on the “health care exception” to the Telephone Consumer Protection Act (TCPA), articulated by the Federal Communications Commission in 2012. And in good news for those sending messages, it interprets the exception broadly.

The TCPA

The TCPA requires businesses to have “prior express consent” to use automatic dialers and prerecorded messages for calls and text messages to consumers’ cell phones, and to use prerecorded messages for calls to residential landlines. Generally, that consent is when the consumer gives a business the telephone number in connection with a transaction that is related to the purpose of the robocall/prerecorded message. If those robocalls/text messages are telemarketing or introduce an advertisement, then the business has to go a step further. It must have the recipient’s prior express written consent, given with certain disclosures. The TCPA carries statutory damages of $500–$1,500 per violation, and is a frequent basis for class-action claims.

The 2012 Health Care Exception, and the 2015 Health Care Treatment Exemption

The 2012 health care exception to the TCPA states that calls and texts that are: (a) by or on behalf of a covered entity or business associate, as defined by HIPAA; and (b) for a health care treatment purpose; are not telemarketing. 47 C.F.R. § 64.1200(a)(2), (3)(v). Giving a health care provider a telephone number is sufficient consent to send messages under the health care exception, the FCC said. FCC 15-72, ¶ 141. In 2015, the FCC announced a “health care treatment exemption,” so the sender needs no consent to send the message, under certain additional circumstances (including that the call/text is free to the recipient). Id. ¶ 148.

The Second Circuit Speaks

Latner involved the 2012 health care exception. Mr. Latner gave his cell phone number as his contact on a new patient form, and consented to Mt. Sinai using his health information “for payment, treatment and hospital operations purposes.” He also received privacy notices that said his information could be used “to recommend possible treatment alternatives or health-related benefits and services.” Mr. Latner declined immunizations during his November 2011 appointment, and then in November 2014, received a text message reminding him it was flu season and encouraging him to call the Mt. Sinai facility to schedule a flu shot. This reminder was sent to all active clinic patients who had been seen within the previous three years.

The Second Circuit affirmed that the health care exception applied. The reminder was intended as a direct or recommended alternative treatment, and to communicate health-care related information rather than to offer property, goods, or services. It did not matter to the Second Circuit that it had been three years since Mr. Latner had last been to Mt. Sinai’s facility, or that he refused the flu shot in 2011. Mr. Latner’s provision of his cell phone number on the new patient form, and the policies provided to him about using his health information to recommend treatment were sufficient prior express consent for the flu shot reminder.

We can expect to hear more from the Second Circuit on this topic as oral argument is scheduled in another flu-shot reminder case, Zani v. Rite Aid Headquarters Corp., next month. The trial court in Zani focused on the reminder being an individualized offer of health care treatment because it was only sent to those who had received flu shot in the prior flu season.

What This Means to You

Covered entities and business associates should confirm the consent they have from patients before using robocalls or mass text messages to remind patients to come in for a flu shot. Under the health care treatment exception, consent from patients on treatment intake forms may be sufficient.