NEW JERSEY - ADVERTISING

January 1, 2008

New Jersey state laws and regulations that affect your medical practice

1. May physicians advertise in New Jersey?

Yes. Generally, advertising in print or electronic media is allowed by professionals. However, while there is no total prohibition on advertising, the State Board of Medical Examiners (SBME) does regulate the type of advertising allowable.

(N.J.S.A. 45:9-16)

The use of advertising which contains any of the following is considered, by the SBME, to be professional misconduct:

A. any statement or representation which is false, fraudulent, misleading, or deceptive.

B. any misrepresentation of a material fact.

C. suppression, omission or concealment of any material fact, under circumstances where the physician knows or should know that the omission is improper or prohibits a patient from making a full and informed judgment on the basis of the information set forth in the advertisement.

D. any claim that the service performed or the materials used are superior to that which is ordinarily performed or used in the profession.

E. any promotion of a professional service which the physician knows or should know is beyond his/her ability to perform.

F. any technique or communication that appears to intimidate, exert undue pressure or unduly influence a prospective patient or consumer.

G. any personal testimonial that is beyond a patient's capacity to assess.

H. any communication which may personally identify a patient without the patient's written consent.

I. any offer to pay, give or accept a fee or other consideration to or from a third party for the referral of a patient.

J. any print, language or format which directly or indirectly obscures a material fact.

K. any guarantee of results from any procedure.

The SBME may further require that a physician substantiate the truthfulness of any assertion or representation made.

(N.J.A.C. 13:35-6.10)

3. May a physician participate in activities that solicit prospective patients?

The SBME has mandated that physicians may not engage, directly or through the use of any agent, employee or representative, in any in-person solicitation with a prospective patient or consumer. However, there is an exception which allows physicians to offer their services through a community service organization which makes known the availability of all professional services. Further, this prohibition does not prohibit the offering of services to any bona fide representative of prospective patients, such as employers, labor union representatives, or insurance carriers.

4. May physicians advertise their fees?

Generally, such advertisements are restricted in the following manner:

A. The advertisement shall be limited to that which contains a fixed or stated range of fees for specifically described routine professional services or goods offered by the physician.

B. Physicians who advertise their fees must disclose all relevant and material variables and any considerations which are ordinarily included in such a service. This disclosure ensures that the fee will be clearly understood by prospective patients. Otherwise, the stated fees will be presumed to include everything ordinarily required for such a service.

(N.J.A.C. 13:35-6.10)

5. May a physician advertise that services are provided free of charge or at discounted rates?

There are a number of restrictions that apply to advertising which refers to free or discounted services:

A. The reduced fee or range of fees as well as the physician's usual fee or usual range of fees for each service for which a reduction is advertised must be stated.

B. All offers of free services or discounts must include a statement of the specific charges for all associated or even reasonably anticipated services, which are not included in the offer of free or discounted services. Otherwise, physicians must list any associated or reasonably anticipated services which are not included.

C. Physicians must maintain a list of the patient names and dates of services for all patients who were provided with free or discounted services. This list must be maintained for seven years from the date of the last entry (except in the case of a massive screening program performed off-site (i.e. out of the office) as a community service and which is sponsored by a governmental or non-profit organization).

D. Physicians must file copies of advertisements offering free or discounted medical services with the SBME within 30 days after initial publication of the advertisement.

E. Physicians must provide the results of the provision of any free or discounted medical service or test to the patients.

F. Patient records for services provided free or at discounted rates must be maintained for seven years and shall be made available upon patient request.

G. Except for those services specifically excluded in the advertisement offering free services, the physician cannot charge for any service rendered during 72 hours from the time the free service was rendered.

(N.J.A.C. 13:35-6.10)

6. What are the restrictions on physicians on announcements of practice location?

Physicians may list their names, professional degrees, addresses and phone numbers in the local telephone directories.

7. What information must appear on stationery and at the entrance to the physician's practice location?

The name and nature of professional practice of every licensee practicing independently or as an employee of another licensee or of a professional service corporation shall appear on professional stationery and shall be conspicuously displayed and kept at the entrance of the place where the licensed practice is conducted. The name of every licensee employed by an ambulatory health care facility licensed by the New Jersey Department of Health shall be posted at the entrance to the treatment area and the licensee providing professional services shall be identified on the bill and insurance claim form.

(N.J.A.C. 13:35-6.10)

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