Rite Aid pharmacy patients were mad as Hell over pre-recorded phone calls they received on their cell phones, reminding them to get a flu shot for the upcoming influenza season. A law firm filed a punitive class action lawsuit against the major pharmacy chain, for violating the Telephone Consumer Protection Act (“TCPA”) for using the pre-recorded calls to promote the sale of flu shots to pharmacy consumers. Notice how different it sounds when you compare “notifying patients of a healthcare condition” versus “advertising flu shots to pharmacy consumers.” Rite Aid officials defend their actions, arguing they did nothing wrong, and are protected by exceptions to the TCPA law prohibiting automated and pre-recorded communications to cell phones. Whether the argument that an exception should apply to Rite Aid is a matter for a jury, and the outcome may influence how other healthcare pill and product vendors conduct their business.
What is the Telephone Consumer Protection Act?
The TCPA, passed by Congress in 1991 limits the use of automated dialing equipment, artificial and pre-recorded phone messages used in commerce, without prior written consent[i]. The TCPA also covers the use of text messages and fax machines. The TCPA specifically prohibits solicitors from calling people’s homes during certain hours, from calling people on the National Do Not Call Registry, from calling homes using pre-recorded or artificial recordings, for example. Violations of the TCPA may be worth $500 per violation when consumers and subscribers report and take action against companies and entities that ignore the TCPA.
When Rite Aid made pre-recorded phone calls to its customers, attorneys representing those customers, argue that Rite Aid violated the TCPA provisions prohibiting pre-recorded calls by using them to sell flu shots. Rite Aid representatives disagree, stating that even if the pre-recorded calls were used for a marketing purpose, they are shielded from TCPA liability under the healthcare-related exception, making the calls permissible and not against the law.
A Healthcare Rule exemption to the TCPA rules prohibiting pre-recorded phone solicitation
The Federal Communications Commission (FCC), the agency that created the TCPA rules, created an exception to the application of the rules against pre-recorded phone calls and the other covered activities, where they apply to the healthcare industry. Health care messages may be sent without prior written consent. To be covered, the “health care messages” must be consistent with the HIPAA. The only problem is that the HIPAA privacy rule does not specifically define, “health care messages.” Despite the lack of a clear definition of “health care messages” there are several accepted subjects of communication that fall within the Healthcare Rule exception.
Healthcare messages regarding patient appointments and examinations, hospital instructions, lab results, prescription notifications and instructions for home healthcare have been accepted as appropriate health care messages. These activities are either logistic or instructional and are based on current or recent healthcare services. These are not marketing messages. The issue before the federal court, regarding Rite Aid’s use of pre-recorded messages is whether the pre-recorded calls were related to or necessary for healthcare services, consistent with HIPAA, and whether the exemption for health care messages applies to a reminder to obtain a flu shot.
Do you think Rite Aid’s messages were health care messages, within the exemption?
In a recent news article about this case it is reported that Rite Aid responded to the lawsuit and argued, “that immunization reminders, such as the one at issue, are the precise healthcare messages to which the Healthcare Rule applies.[ii]”
Rite Aid also argues that even though it believes consent was not required to place (what it is calling) a healthcare-related call, that it otherwise had consent because the people called had previously given the Rite Aid pharmacy their phone numbers and by signing for prescriptions when they had them filled, they were giving express written consent to being notified.
If the federal district (trial court level) court finds that Rite Aid acted beyond the Healthcare Rule exemption, there could be significant punitive fines in the class action lawsuit. The determinations as to what constitutes health care messages are tricky, and if you allow one type of communication, what will happen with others – for example, so long as there is a reasonable tie to health care, are other marketing calls to be allowed?
As the telecommunication laws catch up with technology, the Zamparo Law Group will keep following and writing article summaries to keep us all up to date so when we see something wrong, we can say something and report it to the proper agencies and authorities.
If you are the victim of a violation of a consumer rights law, such as the TCPA, take good notes and call the Zamparo Law Group for a case review to find out if you have a legal right to recovery of damages. The lawyers at the Zamparo Law Group are advocating for consumers like you!
The Zamparo Law Group, P.C. is a consumer protection law and litigation firm, representing consumer plaintiffs. Zamparo Law Group in the northwest suburbs of Chicago sues and wins against the companies who refuse to follow the law.
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