Today, we are bombarded with information through television, newspapers, radio and social media and often, we do not question what we read or hear. Albert Einstein challenged us to question everything, a concept I believe in wholeheartedly. I especially question what I read or hear when the message being delivered is motivated by simple profit or self-interest, rather than the common good.
In Kentucky, it is very difficult not to see negative advertisements against nursing facilities because they are everywhere. Many advertisements against nursing facilities come in the form of full-page advertisements in newspapers that mislead the public by utilizing out-of-date and out-of-context government survey information.
As the president of the primary association representing nursing facilities in Kentucky, I pay attention to these advertisements. I know first-hand how misleading they can be. I often wonder if people who are being subjected to these advertisements question the veracity of the written or spoken word. When an advertisement uses government nursing facility inspection or survey information without context, the reader is led to believe that the government sanctions the advertisement, or that the nursing facility is not currently in good standing.
Some of the questions we should ask when we see these types of advertisements:
- When did the violation occur?
- Is the facility currently in good standing with the government?
- Did the violation cause actual harm?
- Was it wide-spread or isolated?
The advertisements make viewers believe the worst case scenario and clearly, we cannot rely on the advertisers to provide clarifying information to the public. Simply put, these types of advertisements are false and misleading and, therefore, are not protected forms of commercial speech.
During the 2016 legislative session, Senator Danny Carroll championed Senate Bill (SB) 205, which would have ensured that the public continues to be informed about the quality of services that are provided within a Kentucky licensed nursing facility. After passing the Senate, SB 205 was not given a hearing in the House of Representatives and, therefore, was not given the opportunity to be signed into law.
Reconsider SB 205
The Kentucky Association of Health Care Facilities will again ask the Kentucky General Assembly to consider this legislation during the 2017 legislative session. Without this legislation, trial attorneys – mostly from out-of-state law firms – will continue to mislead Kentuckians as to the quality of services being provided in nursing facilities, using advertisements that include outdated survey information and do not indicate if and when the provider returned to regulatory compliance.
Several other states have passed laws addressing the problem of misleading advertisements – Arkansas, Tennessee, Georgia and Ohio to name a few. It is time for Kentucky to act on this issue.
Critics of truth in advertisement legislation surround their objections with myth and misleading rhetoric. This type of legislation does not limit anyone’s right to advertise or the right to use public survey information in advertisements. It simply ensures that when survey information is used in an advertisement, it is provided in such a way as to not be false and misleading to the public. Commercial speech should be truthful.
Pushing for Truth
Our Association is not alone in pushing for truth in advertisements legislation. Recently, support of this measure came from two unlikely sources – a newspaper and an attorney. On December 28, 2015, the Danville Advocate Messenger, in an opinion piece, questioned the motives of a Florida- based law firm for publishing advertisements “fishing for clients who may have been mistreated” by a nursing facility. The newspaper correctly printed the telephone number for the Office of Inspector General (OIG) and recommended to its readership that they call the OIG, as the regulatory agency overseeing nursing facilities, if they have a question or law enforcement if they believe that a crime has been committed.
Our Association agrees with this approach. In April of 2016, an attorney wrote a letter to the editor of the Elliott County News apologizing, as a 50-year member of the Kentucky Bar, to the readership of the Elliott County News and Licking Valley Courier for “the full page ambulance chasing ads.” He recognized that these advertisements are being used for one simple goal – to line the pockets of trial attorneys.
-Elizabeth “Betsy” Johnson is president of the Kentucky Association of Health Care Facilities.