When a TCPA plaintiff agreed to the terms of her health insurance plan – including a provision that the insurer could share her phone number with other companies working with the plan – she provided consent to be contacted by those third parties, according to a decision from a Missouri federal court.
Suzy Elkins enrolled in her employer’s health plan with Coventry Health of Missouri. During the enrollment process, she provided a phone number (which was on the federal Do Not Call Registry) and agreed to abide by the terms of the agreement which included a provision that Coventry could use and share the personal information provided with “other businesses who work for the Plan … [t]o tell you about treatment options or health related services.” The agreement also provided that members had a right to ask for restrictions on the use of their information.
Elkins was given a card from Coventry and Medco Health Solutions, a prescription benefit management service that contracted with the plan. Over a 12-month period, she utilized Medco’s services to fill 12 prescriptions. When Elkins stopped using the service, Medco made two phone calls to the number she provided Coventry.
Based on the calls, Elkins alleged Medco violated the TCPA and the federal Do Not Call rules. The company moved for summary judgment, arguing that she had provided prior express consent to be contacted when signing up with Coventry Health and had an established business relationship with the company.
U.S. District Court Judge Terry I. Adelman agreed. “Plaintiff’s TCPA claim is barred because she gave her express prior consent to be called at the number she provided when she gave that number at the time of enrollment as her number for contact related to her healthcare benefits,” the court said. “It is uncontroverted that Plaintiff agreed in writing that she would abide by the provisions of the [plan agreement], and she never provided notice requesting she should not be contacted at the number she provided with respect to her health benefits.”
The calls from Medco were made “on behalf of her existing health plan regarding the pharmacy benefits she was receiving on an ongoing basis,” the court added. Elkins’ contention that she could not provide consent because she failed to review the documents and agreements at the time of her enrollment did not sway Judge Adelman. “The Court concludes that the provision of her cell phone number reasonably evidences prior express consent by Plaintiff to be contacted at that number regarding pharmacy benefits,” he wrote.
Medco also dodged Elkins’ claims alleging a violation of the Do Not Call rules because the company established an affirmative defense of an existing business relationship. “It is uncontroverted that Plaintiff had an established business relationship with Medco as evidenced by Plaintiff utilizing Medco’s prescription management services to fill twelve prescriptions,” the court wrote.
To read the order in Elkins v. Medco Health Solutions, click here.
Why it matters: TCPA defendants can take heart from the decision, which recognizes that the plaintiff provided prior express consent to be contacted by third parties when she enrolled in her health insurance plan – even if she did not review the documents in which she provided the consent. Moreover, echoing recent findings by the FCC, the Elkins Court agreed that consent given to a health plan could extend to a separate company doing business with that plan.