As healthcare companies increasingly rely on mobile delivery platforms and other technologies to communicate with patients about appointments, billing and other issues, the potential for legal exposure under the Telephone Consumer Protection Act (TCPA) also increases. This series provides information to help healthcare companies navigate the TCPA, including:

Part 2: TCPA Exemptions for Healthcare Companies

The Federal Communications Commission (FCC) has created the following TCPA exemptions for healthcare-related calls and texts:

  • Healthcare messages
    • To residential landlines
    • To cell phones (known as the “Health Care Rule”)
  • The “healthcare treatment purpose” exemption

Healthcare Messages

Residential Landlines

Calls to residential landlines using an artificial or prerecorded message that deliver a healthcare message from a Health Insurance Portability and Accountability Act (HIPAA)-covered entity or its business associate are completely exempt from TCPA liability. These types of calls can therefore be made without the consent of the called party. (47 C.F.R. § 64.1200(a)(3)(v)).

Cell Phones – The Health Care Rule

The Health Care Rule applies to calls and texts to cell phones using an autodialer, or an artificial or prerecorded message, that deliver a healthcare message from a HIPAA-covered entity or its business associate. These calls are still subject to TCPA liability, but only require prior express consent, rather than prior express written consent, which is required for telemarketing calls (47 C.F.R. § 64.1200(a)(2)).

What is a Healthcare Message?

Three factors are considered in determining whether a message qualifies as a healthcare message under the TCPA:

  1. The call concerns a product or service that is inarguably health-related.
  2. The call was made to a patient with whom the healthcare provider has an established healthcare relationship.
  3. The call concerns the individual healthcare needs of the patient recipient.

In Zani v. Rite Aid Headquarters Corp., No. 17-cv-1230, 2018 WL 992309 (2d Cir. Feb. 21, 2018), the U.S. Court of Appeals for the Second Circuit recently held that prerecorded flu shot reminder calls fell within the exemption for healthcare messages. Therefore, they did not require written consent, regardless of whether there was a marketing purpose for the calls.

The lower court had determined that the three-factor test was met, and the appellate court agreed. See Zani v. Rite Aid Headquarters Corp., 246 F.Supp.3d 835 (S.D.N.Y. 2017). The call concerned flu shots, which are health-related in nature; the plaintiff had an established healthcare relationship with Rite Aid because he had previously obtained a flu shot; and the call concerned the individual healthcare needs of the patient because the call referenced a special flu shot for those over the age of 65, and the plaintiff was over 65. Because Rite Aid called the plaintiff on his cell phone, the call still required prior express consent, but the parties and the court agreed that the plaintiff had provided such consent when he gave his phone number to a Rite Aid pharmacy when he received the earlier flu shot.

Notably, the Second Circuit cautioned that marketing calls masquerading as healthcare messages may not come within the exemption if they are so laden with marketing material as to raise a factual issue as to whether they fall outside the healthcare exemption. The Rite Aid message did not have this concern as it contained no promotional material about Rite Aid; rather, it simply discussed the health benefits and availability of a certain flu vaccine, advising that the vaccine was available while supplies lasted, with no appointment necessary, and that most insurance plans were accepted.

Following Zani, one district court recently dismissed a putative class action against CVS Pharmacy for sending text messages to customers notifying them that their prescription was ready to be picked up and also informing them about the availability of flu shots. See Bailey v. CVS Pharmacy, Inc., No. 17-cv-11482, 2018 WL 3866701 (D.N.J. Aug. 14, 2018). The court found that the text messages qualified as healthcare messages exempt from TCPA liability under the three-prong Zani test because:

  1. A flu shot is health-related.
  2. The text messages were limited only to CVS customers who enrolled or consented to receive texts when their prescriptions were ready.
  3. The text messages were prepared in the course of notifying the patient about his or her order status.

Still, this exemption is subject to interpretation on a case-by-case basis. For example, another district court has held that an autodialed call offering health insurance is not a healthcare message within this exemption. See Sullivan v. All Web Leads, Inc., No. 17-cv-1307, 2017 WL 2378079 (N.D. Ill. June 1, 2017). In Sullivan, the court reasoned that the health insurance calls were not “inarguably health-related” because they were messages designed to promote a product, even if the product was “construed to benefit a consumer’s health.” Moreover, the court found that the calls represented an effort to inaugurate a new relationship between a consumer and a health insurance issuer rather than efforts by or on behalf of a healthcare provider in the course of an established healthcare treatment relationship. Finally, the court found that there was no nexus between the subject matter of the calls (to offer health insurance) and the established healthcare needs of its recipients.

Healthcare Treatment Purpose Exemption

In 2015, the FCC attempted to clarify certain issues raised by the healthcare industry concerning the TCPA’s failure to keep up with emerging cell phone technology. As part of that attempt, the FCC issued a declaratory ruling which expanded the healthcare exemptions to cover cell phones, permitting healthcare providers to place autodialed and artificial/prerecorded voice and text messages to cell phones, without the consumers’ prior express consent, written or otherwise, in order to convey important “health care messages” as defined and covered by HIPAA. These exemptions include healthcare messages relating to:

  • Appointments and exams
  • Confirmations and reminders
  • Wellness checkups
  • Hospital pre-registration instructions
  • Pre-operative instructions
  • Lab results
  • Post-discharge follow-up intended to prevent readmission
  • Prescription notifications
  • Home healthcare instructions

While this exemption allows calls to be placed without a consumer’s prior express consent, the FCC also enumerated the following conditions to qualify for the exemption:

  • A call or text message must be sent only to the cell phone number provided by the patient. The patient cannot be charged or have the call or text counted against the limits of his or her cellular telephone plan.
  • The name and contact information of the healthcare provider must be stated at the beginning of a call or included in a text message.
  • The call or text message cannot include telemarketing, solicitation, or advertising content; cannot pertain to accounting, debt collection, or other financial information; and must comply with HIPAA privacy rules.
  • The message must be concise, generally one minute or less for calls and 160 characters or less for text messages.
  • Healthcare providers may only initiate one call or text message per day, up to a maximum of three combined calls or text messages per week for each healthcare provider.
  • Each message must offer recipients an easy way to opt-out of future messages, e.g., a voice-activated or key press-activated mechanism or a toll-free number for calls, and replying “STOP” for text messages.
  • All opt-out requests must be honored immediately.

For more information on how the TCPA affects healthcare companies, contact the authors of this series.