United States: Debt Collector For Affiliated Physician Group Can Rely On Patient Contact Consent Obtained By Hospital

The Sixth Circuit recently held that a hospital-based anesthesia group's debt collector did not violate the Telephone Consumer Protection Act (TCPA) when it placed collection calls to patient cell phone numbers using an "automatic telephone dialing system" and an "artificial or prerecorded voice." The TCPA prohibits making calls "using any automatic telephone dialing system or an artificial or prerecorded voice" to a cell phone number without the "prior express consent of the called party." The Sixth Circuit held that the hospital did not violate the TCPA because the patients had given their "prior express consent" to receive collection calls on their cell phones when they provided their cell phone information to the hospital.

As part of the admission process, the patients signed consent forms covering their medical services that permitted Mount Carmel Hospital in Columbus, Ohio, to use the patients' health information "for [as] many reasons as needed" including billing and payment and release of the health information. One consent form used was more specific and provided that the hospital was authorized to release the patients' health information "to such employees, agents or third parties as are necessary [including] to companies who provide billing services for physicians or other providers involved in [the patients'] medical care." Based on this consent, the hospital provided the cell phone numbers to the anesthesiologists, who in turn provided this information to the debt collector. The debt collector called the patients' cell phone numbers, despite never having received their cell phone information directly from the patients.

The Court reviewed Federal Communications Commission (FCC) guidance on what constitutes "prior express consent." Based on a 1992 interpretation, the Court found that the FCC interpreted "prior express consent" to include certain forms of implied consent. In particular, that "persons who knowingly release their phone numbers have in effect given their invitation or permission to be called at the number which they have given, absent instructions to the contrary." The number, however, must be knowingly provided by patients as the one they wished to be reached at. Where a party learns of a telephone number in another way, such as by capturing it via caller ID, consent will not be deemed to have been given.

The Court then considered a 2008 interpretation by the FCC in which the agency held "that the provision of a cell phone number to a creditor (e.g., as part of a credit application) reasonably evidences prior express consent by the cell phone subscriber to be contacted at that number regarding the debt," and that calls placed by a debt collector on behalf of a creditor will be "treated as if the creditor itself placed the call." The FCC emphasized "that prior express consent is deemed to be granted only if the wireless number was provided by the consumer to the creditor, and that such number was provided during the transaction that resulted in the debt owed." The 2008 Ruling "conclude[d] that the creditor should be responsible for demonstrating that the consumer provided prior express consent" and that "the burden will be on the creditor to show it obtained the necessary prior express consent."

The Court then found that the FCC in a 2014 ruling held "that the TCPA does not prohibit a caller ... from obtaining the consumer's prior express consent through an intermediary[.]" Finally, in 2015 the FCC stressed "that there is no one way to provide consent: '[N]either the Commission's rules nor its orders require any specific method by which a caller must obtain such prior express consent ... [and] the scope of consent must be determined upon the facts of each situation[.]' ... In reiterating that callers may 'obtain a consumer's prior express consent through an intermediary[,]' the FCC stated that '[i]mportantly, ... an intermediary can only convey consent that has actually been obtained, and cannot provide consent on behalf of another party.' ... Put differently, the context of the consent provided is critical."

The patients argued that the FCC's rulings did not allow the hospital to provide their cell phone numbers to another provider of services, the anesthesiologists, during the course of their business relationship with the hospital, nor did it allow the anesthesiologists to provide their cell phone numbers to a debt collector to call on its behalf. The patients' interpretation focused on the FCC 2008 Ruling that "prior express consent is deemed to be granted only if the wireless number was provided by the consumer to the creditor." The Sixth Circuit rejected this narrow reading of the FCC interpretation and stated that "if one provides a cell phone number to a health organization seeking medical treatment, and a provider affiliated with that health organization treats that person for the same ailment, it is normal, expected, and desired to interpret that provision of the cell phone number as an invitation for an entity affiliated with that organization to call for something arising out of one's treatment." "[P]rovision of a cell phone number to a hospital that then provides that cell phone number to an affiliated physicians' group that provided medical services to a consumer arising out of the same occurrence can constitute 'prior express consent' under the TCPA."

The Court then turned its attention to the question of whether consent for the hospital to use "health information" for billing and collection includes the patients' cell phone numbers. The district court relied on the Health Insurance Portability and Accountability Act's definitions and concluded that "health information" included "any information ... created or received by a health care provider" that "relates to ... the past, present, or future payment for the provision of health care to an individual." Using this definition, the Court found "that the hospital's registration forms, in which it received [the patients'] wireless numbers, constituted information related to future payment, and therefore, part of Plaintiffs' health information." The Sixth Circuit concurred and stated that "[c]ontact information most undoubtedly is any information that relates to a patient's payment for care provided."

Finally, the patients maintained that their authorization to the hospital was only valid for one year and thus did not authorize any calls to be made after this period. The Court held that a consumer may revoke consent to contact by cell phone through any reasonable means and that a one-year term limitation could in fact be a revocation of consent. However, in this case, the Sixth Circuit held that the one-year limitation was applicable only to the release by the hospital of certain kinds of information and did not preclude the collection calls.

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