In Elkins v. Melco Health Solutions, Inc., here, Judge Adelman found no TCPA violations for calls to a consumer about her health care prescriptions and/or needs.
The Court finds that 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. When she enrolled in the group health plan through her employer by executing the Enrollment and Change form, Plaintiff identified “314-922-0901” as her home number on the form and certified that the information she provided was true and accurate. In the enrollment form Plaintiff certified that she carefully read and agreed to abide by the provisions of the Group Health Agreement, Certificate of Coverage and Benefit Riders under which she enrolled. The Certificate of Coverage (“Certificate”) states that Coventry may use and share the personal information provided for treatment, payment, and health care operations and may use or share the personal information with “other businesses who work for the Plan … [t]o tell You about treatment options or health related services.” The Certificate also provides that the members have certain rights including the right to ask for restrictions, and apprised the members to read the CoventryNotice of Privacy Practices for more information. It is uncontroverted that Plaintiff agreed in writing that she would abide by the provisions of the Group Health Agreement, Certificate of Coverage, and Benefit Riders, and she never provided notice requesting she should not be contacted at the number she provided with respect to her health benefits, including the Maintenance Drug Program. Plaintiff was called by a pharmacy benefits specialist with her pharmacy benefits manager on behalf of her existing health plan regarding the pharmacy benefits shewas receiving on an ongoing basis. . . . In another case, the court found plaintiff voluntarily provided her cellular number in the process of obtaining a subscription and therefore gave defendant permission to contact at that number absent instructions to the contrary. Steinhoff v. Star Tribune Media Co., LLC, 2014 WL 1207804, at * 3 (D. Minn. Mar. 24, 2014). 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.
The District Court also found that the TCPA’s “Do-not-call” provisions were not triggered or violated.
Section 64.1200(c)(2) provides that it is a violation of the TCPA to call “[a] residential telephone subscriber who has registered his or her telephone number on the national do-not-call registry of persons who do not wish to receive telephone solicitations that is maintained by the Federal Government.” The current rules define the term“established business relationship” (“EBR”) as “a relationship … on the basis of an inquiry, application, purchase or transaction by the [recipient].” 47 C.F.R. §64.1200(f)(5). ¶ Assuming the call was a telephone solicitation, Plaintiff’s “Do Not Call” claim fails because her established business relationship withMedco bars liability for the call. 47 C.F.R. 64.1200(f)(12). It is uncontroverted that Plaintiff had an established business relationship with Medco as evidenced by Plaintiff utilizing Medco’s prescription benefit management services to fill twelve prescriptions from January 1 to June 1, 2012 at one of Medco’s retail-network pharmacies and submitting prescription claims to Medco for thirty-day supplies of maintenance medications. Because the undisputed facts demonstrated that Medco Health Solutions, Inc. is entitled to judgment as a matter of law, the undersigned will grant the motion for summary judgment.