by WellCare Health Plans, Inc., which primarily services Medicare and Medicaid enrollees, fell afoul of federal laws governing unsolicited telephone calls when it reached out with voicemail and pre-recorded messages about preventive services, and medical management and educational health programs. In Fiorarancio v. WellCare Health Plans, Inc., 2022 WL 111062 (D.N.J. 2022), a New Jersey federal trial court denied WellCare’s motion to dismiss a compliant that the calls violated the Telephone Consumer Protection Act and related FCC regulations, even though the calls promoted free services. The case provides some helpful insight on when wellness outreach via automated phone calls might cross the border of solicitation.
First, some background. The TCPA dates back to 1991 when telemarketing and unsolicited faxes reached their peak. Facilitation of the TCPA included creation of the National Do Not Call Registry in 2003. The specific Federal Communications Commission regulations under the TCPA that are were at issue in the Fiorarancio case were as follows:
- 47 C.F.R. § 64.1200(a)(1) prohibits any calls using an automatic telephone dialing system (robocalls) or an artificial or prerecorded voice, other than calls made for emergency purposes, or with the express consent of the called party.
- 47 C.F.R. § 64.1200(a)(2) requires prior written consent if the robocall or pre-recorded calls include or introduce an advertisement or constitute telemarketing. Exceptions to the written consent requirement apply if the call is made by or on behalf of a tax-exempt nonprofit organization, or delivers a “health care message” made by or on behalf of a covered entity or its business associate as defined under HIPAA.
Next, the relevant facts of the Fiorarancio case. Mr. Fiorarancio had no relationship to WellCare or any of its plans. Between February and December 2019, his cell phone received 18 voice mail messages, of which 4 were pre-recorded, intended for a third party (apparently WellCare was dialing a wrong number). The messages addressed the third party by name and requested the person call back in relation to a number of matters including free preventive care, an educational health program, an in-home health assessment, and the Healthy Living program, which was a free service WellCare offered to those who were at risk of experiencing a drug therapy problem. During that same time his cell phone also received two text messages with flu shot reminders.
Mr. Fiorarancio brought a class action on the TCPA violations. With regard to the National Do Not Call Registry, WellCare moved to dismiss the complaint on the grounds that that the calls were not telephone solicitations because they were merely intended to inform the recipient about WellCare benefits or health care in general. The court disagreed, noting that even though the messages may have been informational on their face it was plausible that they were part of a larger marketing or profit-seeking scheme and thus within the TCPA’s scope. It noted that the sizeable number of calls and their direct relation to WellCare’s business permitted the inference that they were a pretext to commercial activity, and the complaint did not need to specify the underlying purpose of the calls in order to survive a motion to dismiss.
With regard to the 4 prerecorded messages falling within the scope of the consent requirement of the FCC regulations cited above, WellCare argued that as health care messages they were exempt from all prior consent requirements under the TCPA, not just the written consent requirement applicable to advertisements and telemarketing. Plaintiffs rebutted that the health care messages were still subject to the general consent requirement. The court agreed with this narrower interpretation of the health care message exception and upheld this aspect of the complaint. It dismissed the compliant, however, with respect to the two text messages with flu shot reminders, due to prior case law that flu shot reminders were not solicitations under the TCPA.
In its decision the court noted an Ohio case decided on similar grounds, Less v. Quest Diagnostics Inc., 515 F. Supp. 3d 715-757-18 (N.D. Ohio 2021) , in which a prerecorded message reminding of annual no-cost wellness visits were at issue; in that case a motion to dismiss the complaint under the TCPA also failed and the case went on to the discovery process in order to reveal more about whether or not the messages were a pretext to a solicitation.
The lesson in this case is that wellness outreach does not have blanket immunity from laws prohibiting unwonted telephone solicitation, particularly where, as here, the number and persistence of the phone contacts suggests an overriding commercial aim. Further, the health care message exception applies only to the written consent component of applicable FCC regulations, and the general consent requirement still applies if robocalls or recorded messages are put in use.
The above information is a brief summary of legal developments that is provided for general guidance only and does not create an attorney-client relationship between the author and the reader. Readers are encouraged to seek individualized legal advice in regard to any particular factual situation. © 2022 Christine P. Roberts, all rights reserved.
Photo credit: Wesley Hilario, unsplash
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