Flu Shot Reminder Text Deemed "Health Care Message", TCPA Claim Dismissed

By: Zuzana S. Ikels

The Second Circuit recently addressed a matter of first impression, interpreting the scope and effect of the FCC’s Healthcare Exception from violations of the Telephone Consumer Protection Act (“TCPA”) to healthcare providers for contacting patients about their care. In Latner v. Mt. Sinai Health Center, the patient came for a routine visit and signed a written consent form containing his contact information and granted consent to Mt. Sinai to use his health information “for payment, treatment and hospital operations purposes.” Ten years later, the patient received a single text message reminding him to get an immunization shot. The plaintiff sued, asserting it violated the TCPA.  The district court dismissed the claim, and plaintiff appealed.

On January 3, 2017, the Circuit affirmed the dismissal, holding that a flu shot reminder call was exempted under the FCC Healthcare Exception. The FCC exempts from written consent calls to wireless cell numbers if the call “delivers a ‘health care’ message made by, or on behalf of, a ‘covered entity’ or its ‘business associate,’ as those are defined in the HIPAA Privacy Rule.” 47 C.F.R. § 64.1200(a)(2) (the “Healthcare Exception”). HIPAA’s definition of “health care” includes “care, services, or supplies related to the health of an individual.” 45 C.F.R. § 160.103. The Court noted that HIPAA exempted from its definition of marketing all communications made “[f]or treatment of an individual by a health care provider… or to direct or recommend alternative treatments” to the individual.”  It reasoned that messages recommending patients obtain immunization shots qualified as treatment under HIPAA, and fell under the FCC Healthcare Exception.

The Second Circuit ignored the more pressing and difficult question: will we actually follow our doctor’s advice and get that flu shot?