Nursing homes’ claims are puffery

Commonwealth of Pennsylvania v. Golden Gate National Senior
Care LLC, No. 336 M.D. 2015, — A.3d —-, 2017 WL 1075535 (Comm. Ct. Pa. Mar.
22, 2017)
Golden Gate manages and operates 36 skilled nursing
facilities in Pennsylvania.  The
Commonwealth sued for: (1) Unfair Trade Practices and Consumer Protection Law
(UTPCPL) violations; (2) breach of contract; and (3) unjust enrichment. I’ll
consider only the advertising-related claims.
The UTPCPL does not apply to providers of medical services,
but nursing homes are “hybrid organizations, offering both medical and
non-medical services.” They are liable under the UTPCPL only as to the non-medical
services they provide. 
The Commonwealth challenged chain-wide marketing statements
that the court found were puffery:
“We have licensed nurses and nursing assistants
available to provide nursing care and help with activities of daily living
(ADLs). Whatever your needs are, we have the clinical staff to meet those
needs.” This claim was “expressed in broad, vague, and commendatory language.”
“Snacks and beverages of various types and
consistencies are available at any time from your nurse or nursing assistant.” Likewise,
as applied to the Commonwealth’s allegation that there was insufficient
staffing to timely respond to residents’ requests.
“A container of fresh ice water is put right
next to your bed every day, and your nursing assistant will be glad to refill
or refresh it for you.” This was mere “subjective analysis or extrapolations,
such as opinions, motives and intentions, or general statements of optimism.”
“Clean linens are provided for you on a regular
basis, so you do not need to bring your own.” This claim was “vague” and
“Providing exceptional dining is important to
us. Not only do we want to meet your nutritional needs, but we want to exceed
your expectations by offering a high level of service, delicious food and an
overall pleasurable dining experience. … We have a seat reserved for you in our
dining room!”  This was puffery
expressing Golden Gate’s “priorities and intentions for residents, rather than
makes specific objective representations about the quality of the dining
experience.”  Though the Commonwealth
alleged that residents couldn’t use the dining facilities due to staffing
shortages, the “reserved seat” claim wasn’t a promise that residents would
always be brought to the dining facilities.
“[W]e believe that respecting your individuality
and dignity is of utmost importance.” 
The “we believe” was enough to signal “subjective analysis or
extrapolations, such as opinions, motives and intentions.”
“A restorative plan of care is developed to
reflect the resident’s goals and is designed to improve wellness and function.
The goal is to maintain optimal physical, mental and psychosocial functioning.”  The Commonwealth didn’t allege that the plans
weren’t developed, but that they were incomplete or not properly
followed/updated. The description of the plan was aspirational puffery.
“We work with an interdisciplinary team to
assess issues and nursing care that can enhance the resident’s psychological
adaptation to a decrease in function, increase levels of performance in daily
living activities, and prevent complications associated with inactivity.”
Again, there was no allegation that there was no such interdisciplinary team;
the rest was puffery.
“Our goal is to help you restore strength and
confidence so you feel like yourself again and can get back to enjoying life
the way you should. That’s The Golden Difference.”  Too subjective.
The Commonwealth also alleged facility-level
misrepresentations, but statements in assessments of individual residents, care
plans, and bills for services not provided weren’t advertising or promotion (borrowing
the Lanham Act definition).  Statements
by individual employees/agents weren’t enough, and “representations made in
resident care plan development are not likely to make a difference in the
purchasing decision, since such representations are made after an individual is
admitted and becomes a resident.”

One judge concurred in part, agreeing with the puffery conclusion
but would have held that one portion of the UTPCPL, Section 2(4)(xxi),
establishes a cause of action to remedy “any … fraudulent or deceptive
conduct which creates a likelihood of confusion or of misunderstanding,” and
doesn’t require an ad; she would have allowed the claim “insofar as it alleges
deceptive conduct involving bills and care plans which could directly impact
purchasing decisions.”

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