AMARILLO, TX – A recent class action lawsuit was filed in the Federal District Court in the Northern District of Georgia. The plaintiff (Robert Lewis) is alleging that Healthcare HD LLC violated the federal Telephone Consumer Protection Act (TCPA).

According to the Complaint, “Defendant routinely violates 47 C.F.R. § 641200(c) and, in turn, 47 U.S.C. § 227(c)(5), by delivering, or causing to be delivered, more than one advertisement or marketing text message to residential or cellular telephone number registered with the National Do-Not-Call Registry (“DNC Registry”) without prior express invitation or permission required by the TCPA.”

The Complaint states that (i) Lewis registered his personal cell number with the DNC Registry on November 21, 2024 and (ii) Healthcare HD (“HHD”) sent text messages to that number in March and April 2025. The Complaint includes the following text messages:

• March 26, 2025 – “Hi Shirel, Your Glucose Monitor application was received. Complete it here http://CGM4.ME?k=960IE21P747 Txt STOP 2 Stop, HELP 4 Help”
• March 27, 2025 – “Hi Shirel, Your Glucose Monitor application was received. Complete it here http://CGM4.ME?k=960IE21P747 Txt STOP 2 Stop, HELP 4 Help”
• April 17, 2025 – “There’s still Time!! Your Glucose Monitor Application is waiting. Visit http://CGM4.ME?k=960IE21P747 Txt STOP 2 Stop, HELP 4 Help”
• April 22, 2025 – “Hi Shirel, Your Glucose Monitor application is still waiting…Visit http://CGM4.ME?k=960IE21P747 Txt STOP 2 Stop, HELP 4 Help”

The Complaint states that HHD delivered the text messages to Lewis’s cell number at least 31 more days after Lewis registered his number with the DNC Registry. The Complaint further alleges: (i) the text messages were intended for someone other than (and unknown to) Lewis; (ii) the purpose of the text messages was to advertise/market goods through HHD’s business; (iii) Lewis did not give HHD prior consent to send the text messages to him; (iv) Lewis did not request promotional materials from HHD; and (v) HHD knew, or should have known, that Lewis’s number was registered with the DNC Registry on November 21, 2024.

The Complaint states that Lewis is bringing the lawsuit as a representative of the following class:

All persons throughout the United States (1) who did not provide their telephone number to Healthcare HD LLC., (2) to whom Healthcare HD LLC delivered, or caused to be delivered, more than one voice message or text message within a 12-month period, promoting Healthcare HD LLC goods or services, (3) where the person’s residential or cellular telephone number had been registered with the National Do Not Call Registry for at least thirty-one days before Healthcare HD LLC delivered, or caused to be delivered, at last two of the voice messages or text messages within the 12-month period, (4) within four years preceding the date of this complaint and through the date of class certification.

The Complaint further states:

• “In 2002, the Federal Communications Commission (“FCC”) ruled that cellular telephone numbers that are placed on the DNC registry are presumed to be residential.”
• “A text message is a “call” as defined by the TCPA.”
• “The TCPA’s implementing regulation…provides that ‘[n]o person or entity shall initiate any telephone solicitation’ to ‘[a] residential telephone subscriber who has registered his or her telephone number on the national do-not-call registry of persons who do not wish to receive telephone solicitations that is maintained by the federal government.’”
• “Any ‘person who has received more than one telephone call within any 12-month period by or on behalf of the same entity in violation of the regulations prescribed under this subsection may’ bring a private action based on a violation of those regulations, which were promulgated to protect telephone subscribers’ privacy rights to avoid receiving telephone solicitations to which they object.”

The Complaint concludes by (i) alleging that HHD violated 47 U.S.C. § 227(c)(5) because it delivered, or caused to be delivered, to Lewis and members of the class, more than one solicitation text message in a 12-month period in violation of 47 C.F.R. § 64.1200 and (ii) asserting that Lewis and the members of the class are entitled to damages.

This lawsuit provides a cautionary tale for DME suppliers. If a supplier desires to reach out to prospective customers via phone calls or text messages, the supplier needs to confirm that such attempted communications do not run afoul of the TCPA and its regulations. The last thing a DME supplier wants to do is to spend the money, time and effort to defend a lawsuit.

Jeffrey S. Baird, JD, is chairman of the Health Care Group at Brown & Fortunato, a law firm based in Texas with a national healthcare practice. He represents pharmacies, infusion companies, HME companies, manufacturers, and other healthcare providers throughout the United States. Mr. Baird is Board Certified in Health Law by the Texas Board of Legal Specialization and can be reached at (806) 345-6320 or [email protected].

AAHOMECARE’S EDUCATIONAL WEBINAR

Loan Closets, Employee Liaisons, and Other Arrangements with Referral Sources

Presented by: Jeffrey S. Baird, Esq., Brown & Fortunato & Noel Neil, ACU-Serve

Tuesday, June 3, 2025 

1:30-2:30 p.m. CENTRAL TIME
In the non-health care world, businesses (e.g., auto parts stores) have very few restrictions regarding their relationships with referral sources. By contrast, the health care world is a totally different animal. Because a large portion of a DME supplier’s revenue is derived directly (or indirectly) from tax dollars, there are myriad federal and state laws designed to protect the tax dollars from fraud. Many of these laws focus on relationships health care providers have with physicians, hospitals, and other referral sources. This program will discuss such relationships between DME suppliers and referral sources. These arrangements include (i) loan closets (also known as consignment closets and stock and bill arrangements), (ii) employee liaisons, (iii) Medical Director Agreements, (iv) physician advisory boards, (v) preferred provider agreements, (vi) patient service agreements, (vii) marketing service arrangements, and (viii) subcontract agreements. The program will discuss how these relationships can be legally entered into…and pitfalls that need to be avoided.

Register for Loan Closets, Employee Liaisons, and Other Arrangements with Referral Sources on Tuesday, June 3, 2025, 1:30-2:30 p.m. CT, with Jeffrey S. Baird, Esq. and Noel Neil.

Members:  $99
Non-Members:  $129