Health Insurance Quality Assurance Included Doctor Visits

by Manatt, Phelps & Phillips, LLP

Manatt, Phelps & Phillips, LLP

By signing a health insurance enrollment form, a plaintiff consented to receive quality assurance calls about her medical provider, the U.S. Court of Appeals, Ninth Circuit held in affirming summary judgment in favor of the defendant.

To become a member of the insurance plan, Audrey Fober signed an enrollment form, providing her phone number in the process. Pursuant to the form, she agreed to let the insurer disclose her information “for purposes of treatment, payment and health plan operations, including but not limited to, utilization management, quality improvement, disease or case management programs.”

The insurance provider assigned Fober to a medical group and selected Dr. Barry Schwartz as her primary care physician. On behalf of the insurance company, Management and Technology Consultants (MTC) conducted patient satisfaction surveys and quality-of-care analysis regarding the company’s medical groups. Fober made two visits to Dr. Schwartz’s office. After each visit, she received phone calls to ask about the quality of her experience with the doctor.

She filed a putative class action against MTC, asserting violations of the Telephone Consumer Protection Act (TCPA). The defendant moved for summary judgment, arguing that Fober provided prior express consent when she signed her enrollment form. A district court judge agreed, and the federal appellate panel affirmed.

Merely providing a phone number does not evince a willingness to be called for any reason, the court acknowledged; calls must relate to the reason the called party provided his or her phone number in the first place.

In Fober’s case, she provided her phone number on the enrollment form and agreed that the insurance provider could disclose her information for various purposes, including “quality improvement.”

“That is exactly what happened,” the panel wrote. “albeit through an intermediary, [the insurance company] provided MTC with Plaintiff’s phone number. MTC then called Plaintiff for a purpose expressly described in the Enrollment Form—i.e., assessing the quality of Plaintiff’s healthcare.”

The key in determining whether a consumer has granted prior express consent to a particular call “is the nature of the call,” the court said. “In completing the Enrollment Form, Plaintiff agreed to receive calls meant to improve the quality of her health plan. The calls that Plaintiff ultimately received—calls to assess her satisfaction with Dr. Schwartz’s services—were undoubtedly made with the purpose of improving the quality of Plaintiff’s care. We thus conclude the calls, at least in terms of substance, fell within the scope of the consent that Plaintiff gave.”

Fober tried to limit her consent to calls concerning the quality of the provider’s services, distinct from the quality of Dr. Schwartz’s services.

“We disagree because the text in the Enrollment Form sweeps broadly,” the panel wrote. “Plaintiff authorized calls pertaining to the operation of her health plan and, relatedly, to the quality of her health plan. The calls at issue were intended to measure whether Plaintiff’s experience with a doctor that the insurance company assigned Plaintiff through her health plan was satisfactory. It takes little imagination to see how that feedback might assist in improving the quality of Plaintiff’s health plan generally.”

Nor did it matter that MTC and not the insurance provider placed the calls, the court added. Fober authorized the insurance company to disclose her phone number for certain purposes, which in turn authorized someone other than the provider to make calls for those purposes. “Specifically, she authorized calls from entities to which [the insurance provider] disclosed her information,” the court said. “MTC falls within that category.”

To read the opinion in Fober v. Management and Technology Consultants, LLC, click here.

Why it matters: Emphasizing the “broad” sweep of the enrollment form completed by the plaintiff, the Ninth Circuit found that she provided prior express consent to be contacted by a third party about the quality of her doctor. The panel found no merit in the plaintiff’s argument that her consent was limited to the health insurance company itself or that the scope of her consent was on the quality of the health insurance plan, not individual doctor’s visits. Instead, the court found the calls fell squarely within the consent provided by the plaintiff.


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.

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