• District Court Rejects Argument That HIPAA Trumps TCPA Consent
  • February 6, 2012 | Author: Peter E. Pederson
  • Law Firm: Hinshaw & Culbertson LLP - Chicago Office
  • In Mitchem v. ICS, 2012 WL 170968 (N.D. Ill. 2012), plaintiff debtor alleged that defendant debt collector sought to collect a medical debt and violated the Telephone Consumer Protection Act (TCPA) by using an auto-dialer to call his cell phone. The TCPA prohibits using an auto-dialer to call a cell phone without the called party’s consent.

    The Federal Communications Commission (FCC) has ruled that when a consumer releases his or her cell phone number to a creditor in connection with a debt, he or she consents to be contacted at that number by a debt collector seeking payment of the debt. The debtor here conceded that he had released to his medical creditor the number that the debt collector had called. He nonetheless argued that he did not consent to the debt collector’s calls because the Health Insurance Portability and Accountability Act (HIPAA) prohibited the medical creditor from releasing his number to the debt collector. The court certified a class of people who had been contacted on cell phone numbers that were given to the debt collector by medical creditors.

    The court entered summary judgment in favor of the debt collector and against the class and the named plaintiff. The court held that HIPAA allows a medical provider to release patient phone numbers without patient consent when the provider is collecting money it is owed. Hence, HIPAA did not limit the debtor’s consent to receive phone calls under the TCPA. The court also held that a medical provider may disclose a phone number to a debt collector under HIPAA’s “reasonably necessary” standard because a phone number is reasonably necessary to collect a medical debt. Additionally, the court questioned whether HIPAA has any bearing on whether a consumer has consented to receive phone calls for purposes of the TCPA.

    This case indicates that the question of consumer consent under the TCPA should be resolved with reference to the TCPA’s texts and implementing regulations, not to other bodies of law. Hinshaw handled the defense of this case.