{"id":875,"date":"2022-08-30T17:21:09","date_gmt":"2022-08-30T21:21:09","guid":{"rendered":"https:\/\/blogs.duanemorris.com\/techlaw\/?p=875"},"modified":"2022-08-30T18:58:04","modified_gmt":"2022-08-30T22:58:04","slug":"tcpa-health-care-exemption","status":"publish","type":"post","link":"https:\/\/blogs.duanemorris.com\/techlaw\/2022\/08\/30\/tcpa-health-care-exemption\/","title":{"rendered":"TCPA: Health Care Exemption"},"content":{"rendered":"

The U.S. District Court, Northern District of Illinois recently held that a plaintiff\u2019s Telephone Consumer Protection Act (\u201cTCPA\u201d) suit survived a motion to dismiss due to a lack of an established patient-provider relationship, when ruling on the health care exemption in the context of phone calls from an eye care provider.\u00a0 The consumer had made an inquiry with the eye care provider but did not receive care, and thus, the exemption may not apply.<\/span><\/p>\n

In Murtoff v. MyEyeDr. LLC<\/span><\/em>, the Plaintiff sent an email to Defendant asking <\/span><\/em>about the cost of a new pair of eyeglasses.\u00a0 Plaintiff then began receiving automated phone calls from Defendant and its corporate entity regarding scheduling eye exams.\u00a0 Plaintiff asked that the call stop, but they continued.<\/span><\/p>\n

Plaintiff filed a putative class action, alleging violations of the TCPA.\u00a0 Defendants filed a partial motion to dismiss regarding the part of the claim that relied on the lack of prior express written consent, asserting that the calls were health care messages.<\/span><\/p>\n

The District Court analyzed that the Federal Communications Commission (\u201cFCC\u201d) has issued two health care exemptions for the TCPA, one of which was potentially applicable to this case. \u00a0Similar to the Federal Trade Commission\u2019s (\u201cFTC\u201d) health care exception to its Telemarketing Sales Rule, the 2012 exemption covers any call that \u201cDelivers a \u2018health care\u2019 message made by, or on behalf of, a \u2018covered entity\u2019 or its \u2018business associate.\u201d\u00a0 To determine whether the exemption applies, the District Court then analyzed the factors set forth in Zani v. Rite Aid<\/span><\/em>, which includes whether the call: (1) \u201cconcerns a product or service that is inarguably health-related\u201d; (2) \u201cwas made by or on behalf of a health care provider to a patient with whom she has an established health care treatment relationship\u201d; and (3) \u201cconcerns the individual health care needs of the patient recipient.\u201d\u00a0 <\/span><\/p>\n

Significantly, the District Court noted that: (1) for the second factor, Plaintiff only made an inquiry regarding the cost of eyeglasses and thus never consummated a health care treatment relationship and (2) for the third factor, the calls regarding scheduling an eye exam were generic and not individualized as to Plaintiff.\u00a0 Thus, the District Court ruled that \u2013 for purposes of a motion to dismiss \u2013 Plaintiff stated a claim that the calls were made without express prior written consent. <\/span><\/p>\n

Lessons<\/span><\/u>:\u00a0 First, merely being a health care business is not, alone, sufficient to invoke the TCPA health care exemption.\u00a0 Second, the exemption may not apply to a generalized message which is not specific to this patient or to this category of patients.<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"

The U.S. District Court, Northern District of Illinois recently held that a plaintiff\u2019s Telephone Consumer Protection Act (\u201cTCPA\u201d) suit survived a motion to dismiss due to a lack of an established patient-provider relationship, when ruling on the health care exemption in the context of phone calls from an eye care provider.\u00a0 The consumer had made … <\/p>\n

Continue reading “TCPA: Health Care Exemption”<\/span><\/a><\/p>\n","protected":false},"author":265,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[5],"tags":[],"ppma_author":[976],"class_list":["post-875","post","type-post","status-publish","format-standard","hentry","category-infotechtelecom"],"authors":[{"term_id":976,"user_id":265,"is_guest":0,"slug":"srwiggins","display_name":"Sheila Raftery Wiggins","avatar_url":"https:\/\/blogs.duanemorris.com\/techlaw\/wp-content\/uploads\/sites\/17\/2021\/12\/wigginssheila-100x100.jpg","0":null,"1":"","2":"","3":"","4":"","5":"","6":"","7":"","8":""}],"_links":{"self":[{"href":"https:\/\/blogs.duanemorris.com\/techlaw\/wp-json\/wp\/v2\/posts\/875","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.duanemorris.com\/techlaw\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.duanemorris.com\/techlaw\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/techlaw\/wp-json\/wp\/v2\/users\/265"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/techlaw\/wp-json\/wp\/v2\/comments?post=875"}],"version-history":[{"count":0,"href":"https:\/\/blogs.duanemorris.com\/techlaw\/wp-json\/wp\/v2\/posts\/875\/revisions"}],"wp:attachment":[{"href":"https:\/\/blogs.duanemorris.com\/techlaw\/wp-json\/wp\/v2\/media?parent=875"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/techlaw\/wp-json\/wp\/v2\/categories?post=875"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/techlaw\/wp-json\/wp\/v2\/tags?post=875"},{"taxonomy":"author","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/techlaw\/wp-json\/wp\/v2\/ppma_author?post=875"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}