October 8, 2017, Tim Regan, Skilled Nursing News - A case in front of the Pennsylvania Supreme Court about a skilled nursing provider’s marketing materials could have implications for how SNFs advertise their services nationwide. Back in 2015, the state’s Office of Attorney General (OAG) argued that skilled nursing provider Golden Gate National Senior Care ran afoul of consumer protection laws by misrepresenting some of the services it provides.
Specifically, the OAG alleged that the Texas-based Golden Gate, which operates 36 SNFs in Pennsylvania, didn’t employ enough nurses to administer the care it advertised, nor did it have the ability to give residents snacks in a timely manner, among other grievances. Those gaps between promised and actual services represented a violation of the Keystone State’s Unfair Trade Practices and Consumer Protection Law (UTPCPL), authorities argued.
The court did not see it that way, however: it ruled that Golden Gate’s advertising amounted to “subjective analysis” and “puffery,” a legal term used to describe exaggeration in marketing materials. But the OAG wasn’t done with the case yet, and in August, urged the Pennsylvania Supreme Court to rethink the lower court’s decision.
Golden Gate did not respond to a request for comment from Skilled Nursing News.
Avoiding snack suits
Depending on the court’s ruling next year, the case could have implications for how skilled nursing providers market their services in the state of Pennsylvania, according to Brandon Sher, an attorney at the Philadelphia office of national law firm LeClairRyan.
The case could even affect SNFs in other parts of the country, as it might provide a roadmap for other states to more strictly enforce their own versions of consumer protection laws.
“If the [Pennsylvania] Supreme Court reverses the Commonwealth Court, then skilled nursing facilities can expect that their marketing materials would be a lot more scrutinized for accuracy,” Sher told Skilled Nursing News. “They’d have to be more careful about the way they market their businesses, because they’d be opening themselves up for litigation if they don’t actually do what they say they are going to do.”
For example, providers could get into legal hot water for advertising snacks or beverages at “any time” when, in reality, they only offer them on an immediate basis from 5 a.m. to midnight—even if their residents don’t usually ask for snacks late into the night.
Determining whether advertising is mere puffery or flatly misleading can be tough to determine. Sher makes the distinction with the analogy of buying a car.
“If the dealership tells you this is a used car but it drives like it new, you’re not going to think it’s a new car,” Sher said. “That’s an opinion: the way the car drives, it drives like it’s new. They’re not saying it is a new car.”
Providers who want to avoid legal misconceptions should make sure there’s no ambiguity in their marketing statements, he added.
“The general answer is, make sure that everything is accurate,” Sher explained. “If it can be interpreted different ways, then you’re opening yourself up to multiple interpretations.”
One easy litmus test for determining whether marketing materials are misleading could be to look at them through the resident’s eyes.
“While it might be accurate from the provider’s perspective, to a patient, it might not be,” Sher said.