In Latner v. Mt. Sinai Health System, Inc., ___ F.3d ___, 2018 WL 265085 (2d Cir. 2018), the Second Circuit recently held that a single flu shot reminder text does not violate the TCPA when a patient gives prior express consent to be contacted.

David Latner (“Latner”) filed a putative class action against Mt. Sinai Health System, Inc. (“Mt. Sinai”) and West Park Medical Group, P.C. (“WPMG”) alleging that defendants violated § 227(b)(1)(A)(iii) of the TCPA by sending him a single flu shot reminder text. Defendants moved for judgment on the pleadings, and the district court granted their motion. Latner appealed.

On appeal, the Second Circuit noted that the TCPA prohibits sending text messages or placing calls to cell phones using an automatic telephone dialing system without prior express consent. See § 227(b)(1)(A)(iii). Prior express consent is an affirmative defense to a TCPA claim. Citing the FCC’s guidance, the court said that persons give prior express consent when they knowingly release their cell phone numbers, and the scope of such consent depends on the facts of each situation.

The court then analyzed the FCC’s Telemarketing Rule of 2012, which requires prior written consent for autodialed or prerecorded telemarketing calls. Pursuant to the Telemarketing Rule’s Healthcare Exception, however, written consent is not required for calls to 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.” See 47 C.F.R. § 64.1200(a)(2). HIPAA defines health care as “care, services, or supplies related to the health of an individual.” See 45 C.F.R. § 60.103. Additionally, HIPAA’s marketing definition excludes communications made “[f]or treatment of an individual by a health care provider . . . or to direct or recommend alternative treatments.” See id. at 164.501.

The court determined that the district court correctly held that the flu shot reminder text fell within the Healthcare Exception to the Telemarketing Rule and, therefore, prior written consent was not required. However, the court held that defendants also needed to show that they had prior express consent to contact Latner on his cell phone, as the text was still subject to the TCPA’s general consent requirement. Nonetheless, the court found that Latner gave prior express consent by providing his cell number when he first visited WPMG and by consenting to allow Mt. Sinai to share his information for treatment purposes. Accordingly, the court held that Latner gave prior express consent to receive a single text message regarding a health-related benefit and affirmed the district court’s decision.

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