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A federal judge is letting a medical practice in New Jersey move forward with a suit over a fax sent by a Cigna subsidiary.
The subsidiary, Evernorth Health, asked the practice, Advantage Medical Associates of East Brunswick, New Jersey, to consider joining a provider network it runs.
Advantage Medical Associates sued in the U.S. District Court for the District of New Jersey, arguing that the fax was an unsolicited ad and violated the federal Telephone Consumer Protection Act on companies sending unsolicited ads through fax machines. The practice is seeking court permission to represent a class consisting of all health care providers who have received unsolicited health care network recruitment faxes since Aug. 30, 2020.
Evernorth filed a motion to dismiss, arguing that it's clear that the fax was not the kind of advertisement subject to the TCPA ban on unsolicited fax ads.
U.S. District Judge Georgette Castner rejected Evernorth's motion to dismiss, stating in a memorandum opinion that the plaintiff "has plausibly alleged that the fax constitutes an advertisement under the TCPA."
She cited a federal appeals court ruling indicating that any fax "announcing the availability of an opportunity for the recipient to exchange goods or services for compensation is 'material advertising the commercial availability or quality of any property, goods, or services,' within the TCPA."
The fax involved in the earlier case made an explicit payment offer, and the Cigna fax did not, but "it can plausibly be read as implicitly offering compensation to plaintiff in exchange for plaintiff joining Cigna's network," Castner writes.
Castner's ruling does not classify the Cigna fax as an ad or have a direct effect on the Advantage Medical Associates suit, but it does let the practice continue to make its arguments in court.
What it means: For employers and benefits professionals, the case represents a clash between health plan administrators' efforts to add enough health care providers to their networks and federal rules meant to keep telemarketers from clogging telephone lines and fax machines with unwanted marketing messages.
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Members of the benefits community could point out that the federal government itself has recognized the importance of telemarketing on health coverage administration by getting the Federal Communications Commission to approve a TCPA exemption for Medicaid enrollment teams in 2023.
Employers could argue that recruiting health plan network providers is as critical to patients' access to health care as telling consumers about Medicaid enrollment opportunities.
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