Court That Health Plan May Have Violated Informative Phone Calls Telephone Consumer Protection Act

A federal court has interpreted the Telephone Consumer Protection Act (TCPA) to allow an individual to file TCPA claims against a HIPAA-regulated health plan that left 20 plan-related voicemail messages over an 11-month period. The person claimed that the health plan violated the TCPA in two ways: by calling a phone number he had listed on the National Do Not Call (NDNC) registry and by leaving four pre-recorded voicemails without the prior express permission. of the person. The person claimed that he had not dealt with the health plan before and that the calls were for someone else. The health plan claimed that the NDNC registry did not ban its calls because they only provided health plan information and were not requests — they did not mention or encourage the purchase of real estate, goods or services. And the health plan further asserted that the pre-recorded messages were to be considered “healthcare messages” that, as a HIPAA covered entity or business partner, could exit the plan without the individual’s prior express consent.

The court rejected both defenses. The court disagreed with the health plan’s characterization of the calls for purposes of the NDNC claim as informational only, arguing that calls that are informational on their face may be part of a broader marketing strategy and, consequently, a pretext for requests. Given the high volume of calls and the fact that the person had to speak to a health plan representative to claim the free services, the court found that the person had sufficiently asserted that the “informational” calls were a pretext. With regard to the pre-recorded messages, the court ruled that the TCPA exception only applies when a healthcare message is part of a call that contains an advertisement or constitutes telemarketing. If a call is for informational purposes only, the healthcare messaging exception does not apply and the “prior express consent” requirement prevails. Because the health plan had not obtained the express consent of the claimant before sending these pre-recorded informational messages, the claimant had adequately stated a claim under the TCPA. The court explained that categorizing the pre-recorded calls as informational was consistent with the NDNC view that the calls could be requests, as the basis of the pretext doctrine is that face-to-face informational calls can be part of a broader request or advertising scheme. The court noted that the health plan could develop evidence about the purpose of the calls in further proceedings.

EBIA Commentary: This case demonstrates the importance of understanding the wide range of privacy laws—aside from HIPAA—that may affect the ability of health plans and their business partners to limit the use and disclose PHI. Any use or disclosure of PHI permitted by HIPAA is subject to other laws. For more information, see EBIA’s HIPAA Portability, Privacy & Security manual at Section XXXIV.J (“Telephone Consumer Protection Act of 1991”). You may also be interested in our webinar “HIPAA Breaches: Preparation and Response” (recorded 1/26/22).

Contributing Editors: EBIA Staff.

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