TEXAS - PHYSICIAN ADVERTISING AND SOLICITATION

January 1, 2008

State laws and regulations that affect your medical practice

1. What constitutes misleading or deceptive advertising in Texas?

No physician shall disseminate or cause the dissemination of any advertisement that is in any way false, deceptive or misleading. Any advertisement shall be deemed by the board to be false, deceptive or misleading if it:

( a ) contains material false claims or misrepresentations of material facts which cannot be substantiated;

( c ) omits material facts;

( d ) makes a representation likely to create an unjustified expectation about the results of a health care service or procedure;

( e ) advertises or assures a permanent cure for an incurable disease;

( f ) compares a health care professional's services with another health care professional's service in a superior manner if the advertising is not subject to verification;

( g ) advertises professional superiority or the performance of professional service in a superior manner if the advertising is not subject to verification;

( h ) contains a testimonial that includes false, deceptive or misleading statements, or fails to include disclaimers or warnings as to the credentials of the person making the testimonial;

( i ) includes photographs or other representations of models or actors without explicitly identifying them as models and not actual patients;

( j ) causes confusion or misunderstanding as to the credentials, education, or licensure of a health care professional;

( k ) represents that health care insurance deductibles or copayments may be waived or are not applicable to health care services to be provided if the deductibles or copayments are required;

( l ) represents that the benefits of a health benefit plan will be accepted as full payment when deductibles or copayments are required;

( m ) states that a service is free when it is not, or contains untruthful or deceptive claims regarding costs and fees. If other costs are frequently incurred when the advertised service is obtained then this should be disclosed. Offers of free service must indeed be free. To state that a service is free but a third party is billed is deceptive and subject to disciplinary action;

( n ) makes a representation that is designed to take advantage of the fears or emotions of a particularly susceptible type of patient;

( o ) advertises or represents in the use of a professional name, a title or professional identification that is expressly or commonly reserved to or used by another profession or professional;

( p ) claims that a physician has a unique or exclusive skill without substantiation of such claim;

( q ) involves uninvited solicitation such as door to door solicitation of a given population or other such tactics for "drumming" patients; or

( r ) fails to disclose the fact of giving compensation of anything of value to representatives of the press, radio, television or other communicative medium in anticipation of or in return for any advertisement, article, or infomercial, unless the nature, format or medium of such advertisement makes the fact of compensation apparent.

22 TX ADC § 164.3

2. The most common advertising violation is stating that a physician is board certified when he or she is not board certified. When is a Texas physician authorized to use the term "board certified?"

( a ) A physician is authorized to use the term "board certified," or any similar words or phrase calculated to convey the same meaning in any advertising for his or her practice if the specialty board which conferred the certification and the certifying organization meets the requirements in paragraphs (1) - (2) of this subsection:

( 1 ) The certifying organization is a member board of the American Board of Medical Specialties, or the Bureau of Osteopathic Specialists, or is the American Board of Oral and Maxillofacial Surgery; or

( 2 ) The certifying organization requires that its applicants be certified by a separate certifying organization that is a member board of the American Board of Medical Specialties or the Bureau of Osteopathic Specialists, or appropriate Royal College of Physicians and Surgeons, and the certifying organization meets the criteria set forth in subsection (b) of this section.

( b ) Each certifying organization that is not a member board of the American Board of Medical Specialties or the Bureau of Osteopathic Specialists must meet each of the requirements set forth in paragraphs (1) - (5) of this subsection:

( 1 ) the certifying organization requires all physicians who are seeking certification to successfully pass a written or an oral examination or both, which tests the applicant's knowledge and skills in the specialty or subspecialty area of medicine. All or part of the examination may be delegated to a testing organization. All examinations require a psychometric evaluation for validation;

( 2 ) the certifying organization has written proof of a determination by the Internal Revenue Service that the certifying board is tax exempt under the Internal Revenue Code pursuant to Section 501( c );

( 3 ) the certifying board has a permanent headquarters and staff;

( 4 ) the certifying board has at least 100 duly licensed certificants from at least one-third of the states; and

( 5 ) the certifying organization requires all physicians who are seeking certification to have satisfactorily completed identifiable and substantial training in the specialty or subspecialty area of medicine in which the physician is seeking certification, and the certifying organization utilizes appropriate peer review. This identifiable training shall be deemed acceptable unless determined by the Board of Medical Examiners to be inadequate in scope, content, and duration in that specialty or subspecialty area of medicine in order to protect the public health and safety.

( c ) A physician may not authorize the use of or use the term "board certified" or any similar words or phrase calculated to convey the same meaning if the claimed board certification has expired and has not been renewed at the time the advertising in question was published or broadcast.

( d ) The term "board eligible," "board qualified," or any similar words or phrase calculated to convey the same meaning shall not be used in physician advertising.

( e ) A physician's authorization of or use of the term "board certified," or any similar words or phrase calculated to convey the same meaning in any advertising for his or her practice shall constitute misleading or deceptive advertising unless the specialty board which conferred the certification and the certifying organization meet the requirements in subsections (a) and (b) of this section.

( f ) A physician who is board certified by an organization that does not meet the requirements set out in subsections (a) and (b) of this section, or otherwise has a special interest in a particular field of medicine, may include in advertisements the physician's field of interest. For each area of interest advertised the physician must clearly state in the advertising "Not certified by an organization recognized by the Texas State Board of Medical Examiners." This statement must be separate and apart from other statements and shall be displayed conspicuously with no abbreviations, changes, or additions in the quoted language so as to be easily seen or understood by an ordinary consumer.

22 TX ADC § 164.4

3. What are the consequences of false, deceptive or misleading advertising?

A physician's license may be disciplined for false and deceptive advertising. It is the responsibility of each physician to carefully scrutinize his advertisements and adhere to the highest ethical standards of truth in advertising.

22 TX ADC § 164.1

4. 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.

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