In Adkins v. Collens,[1] the supreme court held that conduct is exempt from Alaska’s Unfair Trade Practices and Consumer Protection Act (UTPA) when it is the subject of ongoing, careful regulation and such regulation prohibits the conduct in question. Collens, a quadriplegic, contracted with Maxim, a healthcare corporation, to provide his in-home nursing care. Several years later, Maxim discharged Collens, providing him a letter that falsely stated that the discharge had been discussed with his physician and care coordinator and that they agreed with the discharge decision. Collens sued Maxim for breach of contract and fraudulent misrepresentation; he also raised claims under the UTPA. The superior court ruled, among other things, that Maxim’s failure to follow its own policies and procedures and its misrepresentations to Collens about his discharge violated the UTPA. On appeal, Maxim argued that this conduct was exempt from the UTPA because it was already prohibited by regulation. Regarding Maxim’s failure to follow its own policies and procedures, the supreme court agreed that this conduct was regulated by Alaska law. However, the court noted that while state regulations require home health agencies to adopt a set of policies and procedures, they do not explicitly require compliance. Thus, Maxim’s failure to follow its own procedures was not exempt. Additionally, regarding Maxim’s misrepresentations, the court agreed that this conduct was regulated by an Alaska statute that gives a patient receiving home health services the right to be informed of the reason for discharge. But the court noted that it was unclear whether this right translates, in practice, to a prohibition on misrepresentations like Maxim’s. Moreover, the court found it significant that the regulations emphasize the existence of policies and procedures, rather than compliance with them. The court also noted that it was uncertain whether the Department of Health and Social Services devotes enforcement resources to policing individual acts of misrepresentation. Thus, the court found that Maxim’s misrepresentations were also not exempt from the UTPA. Affirming the superior court, the supreme court emphasized that for the UTPA’s statutory exemption to apply, the conduct must be the subject of ongoing, careful regulation and actually be prohibited by such regulation.
[1] 444 P.3d 187 (Alaska 2019).
