Debt Collector for Affiliated Physician Group Can Rely on Patient Contact Consent Obtained by Hospital

by BakerHostetler

Careful drafting of consent and information release provisions can ensure that providers and affiliated physicians and their debt collectors can contact patient cell phones using automatic telephone dialing systems or artificial or prerecorded voices.

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.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© BakerHostetler | Attorney Advertising

Written by:


BakerHostetler on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.