n a ruling that could have major implications for patient outreach by the health care industry, on January 22, 2018, the Northern District of Ohio held that prescription reminder calls are exempted from liability under the Telephone Consumer Protection Act’s (TCPA) “emergency purposes” exception. If this ruling is followed by other courts, the long-term effect of this Court’s decision has potential to classify almost all health-care related calls subject to the emergency exemption and thus outside of TCPA liability.
In an individual suit brought by the Plaintiff, Shari Lindenbaum, against CVS for six prerecorded calls to her cell phone, Lindenbaum alleges that CVS violated the TCPA for failing to obtain prior express written consent for prescription refill reminder calls. Specifically, Lindenbaum alleges that she received calls because she has a reassigned number (or a recycled cellphone number). She also alleges that she has been registered on the National Do Not Call Registry since December 2004 (it is unclear if the number at issue is the number that is listed on the Registry).
CVS filed a motion for judgment on the pleadings asserting, among other things, that prescription refill calls are “emergency purpose” calls and thus exempt from the TCPA.
The TCPA defines “emergency purposes” as “calls made necessary in any situation affecting the health and safety of consumers.” While Lindenbaum alleges that she has no relation with the CVS customer who formerly used the recycled cellphone number, and, thus, these calls could not have been for an emergency purpose, the Court held that the calls were made for the health and safety of consumers. “In most cases, information about where, when, and how to refill a prescription concerns the health and safety of consumers, who may be reliant on their medication.” The Court also recognized that the reminder calls are “necessary” and “in many instances a patient’s ability to timely receive a prescribed medicine is critical in preventing a major health emergency.”
Further, the Court highlighted that the Court in the Roberts v. Medco Health Solutions, Inc., No. 4:15-cv-1368 (E.D. Mo. July 26, 2016), found that “in many instances a patient’s ability to timely receive a prescribed medicine is critical in preventing a major health emergency.”
The main thrust of Lindenbaum’s argument – that the court in St. Clair v. CVS Pharmacy Inc., 222 F. Supp. 3d 779 (N.D. Cal. 2016), found prescription reminder calls did not fall under the emergency purposes exception – fell flat. The Court easily distinguished the St. Clair case from the present because Lindenbaum failed to allege that she asked CVS to stop calling her.
The Court recognized the FCC’s call for a broad interpretation of the term “emergency” in finding that the exception’s plain language did not limit the exception to the “large scale emergencies” that Lindenbaum suggested, such as power outages, severe weather, terrorist attacks, AMBER alerts, or unexcused school absence alerts. For health-care related calls placed prior to a revocation, consent may not be required because many of the calls placed can be classified as relating to the health and safety of consumers.
Health benefit companies as well as other industries should look to the types of calls being placed (including the purpose of such call) to determine whether consent is needed. As usual, scrubbing against the internal do not call list, however, is still required.