FLORIDA - PHYSICIAN ADVERTISING AND SOLICITATION

January 1, 2008

Florida state laws and regulations that affect your medical practice

1. What constitutes misleading or deceptive advertising in Florida?

Any advertisement shall be deemed by the Board to be false, deceptive or misleading if it:

( a ) Contains a misrepresentation of facts; or

( c ) Creates false or unjustified expectations of beneficial assistance; or

( d ) Contains any representation or claims as to which the physician, referred to in the advertising, does not expect to perform; or

( e ) States or implies that the physician has received formal recognition as a specialist in any aspect of the practice of medicine unless the physician has in fact received such recognition and such recognizing agency is approved by the Board. However, a physician may use on letterhead or in advertising a reference to the physician's specialty recognition received from a recognizing agency that has not been approved by the Board only if the letter head or advertising also contains in the same print size or volume the statement that "The specialty recognition identified herein has been received from a private organization not affiliated with or recognized by the Florida Board of Medicine." For purposes of this rule, the Board approves the specialty boards of the American Board of Medical Specialties (ABMS) as recognizing agencies, and such other recognizing agencies as may request and receive future approval by the Board based upon the following criteria:

( 1 ) The recognizing agency must be an independent body that certifies members as having advanced qualifications in a particular allopathic medical specialty through peer-reviewed demonstrations of competence in the specialty being recognized;

( 2 ) Specialty recognition must require completion of an allopathic medical residency program approved by either the Accreditation Council of Graduate Medical Education (ACGME) or the Royal College of Physicians and Surgeons of Canada that includes substantial and identifiable training in the allopathic specialty being recognized.;

( 3 ) Specialty recognition must require successful completion of a comprehensive examination administered by the recognizing agency pursuant to written procedures that ensure adequate security and appropriate grading standards;

( 4 ) The recognizing agency, if it is not an ABMS board, must require as part of its certification requirement that each member receiving certification be currently certified by a specialty board of the ABMS;

( 5 ) The recognizing agency must have been determined by the Internal Revenue Service of the United States to be a legitimate not for profit entity pursuant to Section 501 ( c ) of the Internal Revenue Code;

( 6 ) The recognizing agency must have full time administrative staff, housed in dedicated office space which is appropriate for the agency's program and sufficient for responding to consumer or regulatory inquiries; and

( 7 ) The recognizing agency must have written by-laws, and a code of ethics to guide the practice of its members and an internal review and control process including budgetary practices, to ensure effective utilization of resources. However, a physician may indicate the services offered and may state that practice is limited to one or more types of services when this is in fact the case.

( g ) Represents that professional services can or will be competently performed for a stated fee when this is not the case, or makes representations with respect to fees for professional services that do not disclose all variables affecting the fees that will in fact be charged; or

( h ) Conveys the impression that the physician disseminating the advertising or referred to therein possesses qualifications, skills, or other attributes, which are superior to other physicians, other than a simple listing of earned professional post-doctoral or other professional achievements recognized by the Board; or

( i ) Fails to conspicuously identify the physician by name in the advertisement; or

( j ) Includes reference to specialty certification without identifying the name of the specialty board that has awarded specialty certification; or

( k ) Implies specialty or sub-specialty for which the physician has not received specialty recognition.

64 FL ADC 64B8-11.001

2. For what period of time must a physician maintain a copy of an electronic advertisement?

It shall be the responsibility of any duly licensed physician who utilized the electronic media for the purpose of advertising to ensure that an exact copy of the audio tape and/or video tape is maintained and preserved for a period of at least six months from the date that the actual advertisement is aired or shown through the electronic media.

64 FL ADC 64B8-11.001

3. May a physician advertise through a referral service?

Yes. Any physician who advertises by, through or with a referral service shall be held responsible for the content of such advertising and all such advertisements shall comply with this rule and contain the following:

( a ) A statement that the advertisement is for a medical referral service and is in the behalf of the physician members of the referral service.

( b ) A statement that the referral service refers only to those physicians who have paid or been otherwise selected for membership in the referral service.

( c ) A statement that membership in the referral service is limited by the referral agency.

( d ) A statement that physicians who receive referrals from the referral service charge no more than their usual and customary professional fees for service.

( e ) These required statements shall be present in reasonably recognizable print or volume equivalent to the size or volume of other information in the advertisement.

64 FL ADC 64B8-11.001

4. What are the recognizing agencies currently approved by the Florida Board of Medicine?

(a) The specialty boards of the American Board of Medical Specialties (ABMS):

(1) American Board of Allergy and Immunology

(2) American Board of Anesthesiology

(3) American Board of Colon and Rectal Surgery

(4) American Board of Dermatology

(5) American Board of Emergency Medicine

(6) American Board of Family Medicine

(7) American Board of Internal Medicine

(8) American Board of Medical Genetics

(9) American Board of Neurological Surgery

(10) American Board of Nuclear Medicine

(11) American Board of Obstetrics and Gynecology

(12) American Board of Ophthalmology

(13) American Board of Orthopaedic Surgery

(14) American Board of Otolaryngology

(15) American Board of Pathology

(16) American Board of Pediatrics

(17) American Board of Physical Medicine and Rehabilitation

(18) American Board of Plastic Surgery

(19) American Board of Preventive Medicine

(20) American Board of Psychiatry and Neurology

(21) American Board of Radiology

(22) American Board of Surgery

(23) American Board of Thoracic Surgery

(24) American Board of Urology

(b) American Board of Facial Plastic & Reconstructive Surgery, Inc. (approved February 1997).

( c ) American Board of Pain Medicine (approved August 1999).

(d) American Association of Physician Specialists, Inc. (approved February 2002).

64 FL ADC 64B8-11.001

5. May a Florida physician personally solicit patients?

Yes. Any duly licensed physician who solicits patients personally or through an agent shall be responsible for any advertising used to solicit such patients. Soliciting patients through an agent shall include accepting patients who are referred by a corporate or business entity with whom the licensee has an employment or contractual relationship to perform medical services or to perform medical diagnosis but does not include accepting a patient pursuant to managed care plans, licensed or certified by the Florida Department of Insurance.

64 FL ADC 64B8-11.001

6. What does the American Medical Association have to say about physician advertising?

The official AMA Opinion regarding advertising and publicity provides as follows:

There are no restrictions on advertising by physicians except those that can be specifically justified to protect the public from deceptive practices. A physician may publicize him or herself as a physician through any commercial publicity or other form of public communication (including any newspaper, magazine, telephone directory, radio, television, direct mail, or other advertising) provided that the communication shall not be misleading because of the omission of necessary material information, shall not contain any false or misleading statement, or shall not otherwise operate to deceive.

Because the public can sometimes be deceived by the use of medical terms or illustrations that are difficult to understand, physicians should design the form of communication to communicate the information contained therein to the public in a readily comprehensible manner. Aggressive, high-pressure advertising and publicity should be avoided if they create unjustified medical expectations or are accompanied by deceptive claims. The key issue, however, is whether advertising or publicity, regardless of format or content, is true and not materially misleading.

The communication may include (1) the educational background of the physician, (2) the basis on which fees are determined (including charges for specific services), (3) available credit or other methods of payment, and (4) any other non-deceptive information.

Nothing in this opinion is intended to discourage or to limit advertising and representations which are not false or deceptive within the meaning of Section 5 of the Federal Trade Commission Act. At the same time, however, physicians are advised that certain types of communications have a significant potential for deception and should therefore receive special attention. For example, testimonials of patients as to the physician's skill or the quality of the physician's professional services tend to be deceptive when they do not reflect the results that patients with conditions comparable to the testimoniant's condition generally receive.

Objective claims regarding experience, competence and the quality of physicians and the services they provide may be made only if they are factually supportable. Similarly, generalized statements of satisfaction with a physician's services may be made if they are representative of the experiences of that physician's patients.

Because physicians have an ethical obligation to share medical advances, it is unlikely that a physician will have a truly exclusive or unique skill or remedy. Claims that imply such a skill or remedy therefore can be deceptive. Statements that a physician has an exclusive or unique skill or remedy in a particular geographic area, if true, however, are permissible. Similarly, a statement that a physician has cured or successfully treated a large number of cases involving a particular serious ailment is deceptive if it implies a certainty of result and creates unjustified and misleading expectations in prospective patients.

Consistent with federal regulatory standards which apply to commercial advertising, a physician who is considering the placement of an advertisement or publicity release, whether in print, radio, or television, should determine in advance that the communication or message is explicitly and implicitly truthful and not misleading. These standards require the advertiser to have a reasonable basis for claims before they are used in advertising. The reasonable basis must be established by those facts known to the advertiser, and those which a reasonable, prudent advertiser should have discovered. Inclusion of the physician's name in advertising may help to assure that these guidelines are being met.

AMA Opinion E-5.02.

Copyright Kern Augustine Conroy and Schoppmann, P.C. Used with permission.