Subject Matter: There Is Such A Thing As Bad Publicity: The Ohio Legislature Restricts the Use of Nursing Home Inspections or Surveys in Advertisements
By Michael Mahon
Although catchy on the surface,
the often-used phrase that "there is no such thing as bad publicity" is
hardly practical to nursing homes and residential care facilities trying to
cement their status as reputable institutions in the wake of growing concerns
of elder healthcare. This is especially true as plaintiff-centric law
firms increasingly utilize advertisements that disclose the results of certain
inspections or surveys as a way to coax new clients to their front doors.
These types of advertisements, however, not only fuel the exponential increase
in nursing home litigation–which itself has contributed to the soaring costs
associated with long-term care–they also implicitly lead consumers to believe
that a particular facility is not up to par.
In a climate where
sensationalized media is more profitable than ever (See: 24/7 Cable News),
catchy headlines are the norm while factual context is often displaced
entirely. Take, for example, a law firm’s television or newspaper
advertisement that claims that a certain long-term care facility was recently
cited by the Department of Health for failing to meet certain regulatory
standards. Not only does the citation referenced in the advertisement
invoke negative connotations, it may also imply that this facility is more
prone to inspections, that other facilities not included in the advertisement provide
better care, or that the Department of Health endorses the advertisement.
What the advertisement will unlikely contain, however, is information regarding
whether all facilities are inspected periodically, whether the deficiency was
corrected, the actual number of deficiencies, or how the number of deficiencies
compare to other results of inspections at other facilities. Therefore,
while a particular facility might have substantially fewer deficiencies than
other facilities across the state, all of which may have been corrected, the
consumer hears or sees only that the facility was cited.
In an effort to combat this
problem, Ohio Governor John Kasich signed Sub. H.B. 290 into law on December
19, 2014, which, among other things, conditionally restricts the use of such
advertisements unless certain contextual information is also provided.
This law prohibits using the results of an inspection or investigation of
certain facilities in an advertisement unless it includes all of the
date the inspection, investigation, or survey was conducted;
statement that the Director of Health inspects all homes at least once
every 15 months or, in the case of a nursing facility, that the Department
of Health conducts a survey of all nursing facilities at least once every
a finding or deficiency cited in the statement of deficiencies has been
substantially corrected, a statement that the finding or deficiency has
been substantially corrected and the date that the finding or deficiency
was substantially corrected;
number of findings and deficiencies cited in the statement of deficiencies
on the basis of the inspection, investigation, or survey;
average number of findings and deficiencies cited in a statement of
deficiencies on the basis of an inspection, investigation, or survey
during the same calendar year as the inspection, investigation, or survey
used in the advertisement; and
statement that the advertisement is neither authorized nor endorsed by the
Department of Health or any other government agency.
(See R.C. 3721.02(F)(1) and R.C.
It is anticipated that this law,
which goes into effect on March 23, 2015, will assist consumers in providing
important context and perspective when making long-term care decisions.
Similarly, advertisers will (hopefully) find it more difficult to cherry-pick
"facts" that mislead their already weary audience.
Should you have any questions
regarding these new amendments, or any other questions regarding litigation in
the long-term care setting, do not hesitate to contact anyone in our Long-Term Care Practice Group.
Document Date: February 27, 2020
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