Rite Aid Says Healthcare Exception Should Decide TCPA Lawsuit

In a proposed class action TCPA lawsuit, Rite Aid seeks a judgment in its favor, arguing its phone calls qualify for a healthcare exception to TCPA enforcement.

The company claims its phone calls, allegedly made with an autodialer to remind the call’s recipient to get a flu shot, did not violate the federal Telephone Consumer Protection Act.

Rite Aid cites a directive by the Federal Communications Commission that allows them to make unwanted phone calls with an autodialer if those calls are related to health care, and particularly to immunizations.

Lead class plaintiff Robert Zani sees the situation differently. His TCPA lawsuit argues the calls from Rite Aid were only telemarketing that deserves no TCPA exception. Rite Aid would have to get the recipient’s express written consent to make such calls, Zani argues.

Rite Aid argues the healthcare exception applies even if the call does have a marketing purpose, as long as it also meets the requirements for the exception.

Zani also argues that Rite Aid can’t claim the healthcare exception because the company itself is not a pharmacy. Rite Aid counters that it made the calls on behalf of affiliates who were inarguably pharmacies and would clearly qualify for the exception.

The company further claims that even if the healthcare exception doesn’t apply, Zani had still consented to receiving calls from Rite Aid.

The TCPA Exception for Healthcare Communications

In July 2015, the Federal Communications Commission issued a declaratory ruling and order clarifying many points about its enforcement of the TCPA. Within that ruling, the Commission clarified an exception to TCPA enforcement for calls or texts that would constitute “pro-consumer messages” from certain healthcare providers about time-sensitive healthcare matters.

Under the FCC healthcare exception, messages that have a “healthcare treatment purpose” and sent under circumstances considered an “exigency” may not constitute TCPA violations. These sorts of messages can include appointment confirmations and reminders, lab results, and home healthcare instructions, among other types of messages.

These healthcare-related messages must meet several specific requirements to qualify for the exception, These include messages:

• Being sent only to the wireless number the recipient provided to the care provider
• Stating the care provider’s name and contact information
• Immediately honoring any opt-out request by the consumer
• Complying with all applicable privacy rules under the Health Insurance Portability and Accountability Act, or HIPAA

The Commission created this exception under its TCPA authority to create exceptions for certain “free-to-end-user” calls, calls that do not incur a charge for the recipient.

Other TCPA Lawsuit Issues

Znie has also redoubled his effort to get the court to certify a plaintiff Class for his TCPA lawsuit. He is seeking certification for a proposed Class consisting of persons who received prerecorded flu shot reminders via unwanted phone calls in 2013 and 2014.

Rite Aid argues that disclosing class members’ records would violate the HIPAA privacy rule.

Zani counters that HIPAA makes a specific exception for disclosures made in compliance with a court order. He also claims Rite Aid’s claim of concern for class members’ privacy is hollow, since the company has allegedly already disclosed the members’ contact information to third-party telemarketers.

The Rite Aid Class Action TCPA Lawsuit is Robert Zani v. Rite Aid Headquarters Corp., Case No. 1:14-cv-9701, in the U.S. District Court for the Southern District of New York.

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If you were contacted on your cell phone by a company via an unsolicited text message (text spam) or prerecorded voice message (robocall), you may be eligible for compensation under the Telephone Consumer Protection Act.

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