Fiorarancio v. Wellcare Health Plans, Inc., 2022 WL 111062 (D.N.J. 2022)
A federal trial court has interpreted the Telephone Consumer Protection Act (TCPA) to allow an individual to pursue TCPA claims against a HIPAA-regulated health plan that left 20 plan-related voicemail messages over a span of 11 months. The individual alleged that the health plan violated the TCPA in two ways: by calling a phone number that he had listed with the National Do Not Call (NDNC) registry, and by leaving four prerecorded voicemails without obtaining the individual’s prior express consent. The individual claimed that he had not had any prior dealings with the health plan, and the calls were intended for someone else. The health plan contended that the NDNC registry did not prohibit its calls because they only provided information about the health plan and were not solicitations—they did not mention or encourage the purchase of property, goods, or services. And the health plan further asserted that the prerecorded messages should be considered “health care messages” that, as a HIPAA covered entity or business associate, the plan could leave 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, reasoning that calls that are informational on their face may be part of a broader marketing strategy and, consequently, a pretext for solicitation. Noting the large volume of calls and the fact that the individual would have had to speak with a health plan representative to claim the free services, the court held that the individual had adequately alleged that the “informational” calls were pretextual. Addressing the prerecorded messages, the court ruled that the TCPA exception applies only when a health care message is part of a call that includes an advertisement or constitutes telemarketing. If a call is informational only, then the exception for health care messages does not apply, and the requirement for “prior express consent” is controlling. Because the health plan had not obtained the claimant’s express consent before sending these prerecorded informational messages, the claimant had adequately stated a claim under the TCPA. The court explained that categorizing the prerecorded calls as informational was consistent with its NDNC holding that the calls could be solicitations since the foundation of the pretext doctrine is that facially informational calls may be part of a broader solicitation or advertising scheme. The court noted that the health plan could develop evidence on the purpose of the calls in further proceedings.
EBIA Comment: This case highlights the importance of understanding the broad array of privacy laws—apart from HIPAA—that may limit the ability of health plans and their business associates to use and disclose PHI. A use or disclosure of PHI that is permitted by HIPAA may still run afoul of 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 on 1/26/22).
Contributing Editors: EBIA Staff.