Pharmacies using automated dialers for prescription refill reminders and relying on the statutory prescription refill reminder exemption to the TCPA’s prohibition on the use of automated dialing equipment as an impenetrable blanket against liability need to think again.
The case of Smith v. Rite Aid Corporation, 2018 WL 5828693 (W.D.N.Y. Nov. 7, 2018), revolves around a Rite Aid pharmacy’s use of a prescription refill reminder program to contact a patient to pick up a prescription. The pharmacy placed several calls per week intended to remind the patient to come into the store to pick up their prescription. However, an innocent bystander instead of the intended recipient of the mediation received the calls; either due to error in taking the phone number down or a due to the number being reassigned (which happens to thousands of numbers on a daily basis!). The unintended recipient of the multiple prescription refill reminder calls filed a class action lawsuit under the federal Telephone Consumer Protection Act (“TCPA”), which provides for statutory penalties of $500-$1,500, per call.
During the litigation on a motion to dismiss, Rite Aid Corporation sought to rely on the Federal Communication Commission’s exemption of automated telephone calls for health care calls/prescription refill reminders in an attempt to escape liability under the TCPA for the calls to the reassigned number. However, the Judge of this recent case in Federal Court in the Western District of New York reminded the Rite Aid Corporation that the prescription refill reminder emergency purposes exemption does not allow a free for all or complete protection from liability under the TCPA. Rather, the Court stated that the exemption only permits one call per day and maximum of three per week. Additionally it requires that opt-out requests be offered and honored immediately.
Many have taken issue over the Court’s declining to dismiss the case under the exigent health care calls TCPA exemption. The laws surrounding the TCPA, and how they affect providers ability to communicate with clients and patients, are interpreted differently by the circuit courts and are constantly evolving. Be it the use of text messages, phone calls, or faxes, the TCPA touches upon all of these mediums and unfortunately needs to be seriously considered because of the tremendous statutory penalties that violations carry. The details of the law are nuanced, and ultimate liability could hang upon seemingly minor modifications to configurations of the systems that pertain to how your business communicates with its customers.