Flu Shot Text Message Reminder Did Not Violate TCPA

In Latner v. Mount Sinai Health System, Inc. (published as amended on January 9, 2018), the Second Circuit Court of Appeals held that a healthcare provider did not violate the Telephone Consumer Protection Act (TCPA) by sending an automated text message reminding a former patient to get a flu shot.

The decision had two components. First, autodialed telephone calls and text messages generally require prior express written consent, but in 2012, the FCC allowed a slightly lower standard of consent if the call or text delivers a health care message from or on behalf of a “covered entity” as defined in the Health Insurance Portability and Accountability Act (HIPAA) privacy rule.  The Court quickly concluded that Mount Sinai, a hospital operator, qualified as a covered entity.  Therefore, instead of “prior express written consent,” Mount Sinai needed to meet only a general standard of “prior express consent.”  This is a significant difference because the FCC has a specific definition of “prior express written consent” that sets forth required language that must be present in the written consent.

The second component of the ruling was whether Mount Sinai met the lower standard of general consent, and the Second Circuit determined that Mount Sinai did. Under the general consent standard, no specific language is required and the criterion is “persons who knowingly release their phone numbers have in effect given their invitation or permission to be called at the number which they have given, absent instructions to the contrary.”  In this case, plaintiff Latner provided his cell phone number when he first visited the health care facility in 2003. He also signed a consent form acknowledging receipt of various privacy notices. In signing this form, Latner agreed that Mount Sinai could share his information for “treatment” purposes, and could use his information “to recommend possible treatment alternatives or health-related benefits and services.”  The Second Circuit therefore upheld the trial court’s decision to dismiss the complaint.

TAKEWAY: Even though it qualified for the lower standard of general consent, Mount Sinai prevailed in the lawsuit because it had the foresight to include permissive language in its consent and intake forms, and preserved its records of obtaining patient phone numbers for well over a decade.  Businesses that may use autodialed calls or mass text messages for any purposes are advised to review all customer terms and conditions, privacy policies and customer intake forms to see if the consent language is both present and legally compliant.

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