Fla. Admin. Code Ann. R. 64B8-11.001 - Advertising

Current through Reg. 47, No. 249; December 28, 2021

(1) The Board permits the dissemination to the public of legitimate information, in accordance with the Board's rules, regarding the practice of medicine and where and from whom medical services may be obtained, so long as such information is in no way false, deceptive, or misleading.
(2) No physician shall disseminate or cause the dissemination of any advertisement or advertising which is in any way false, deceptive, or misleading. Any advertisement or advertising shall be deemed by the Board to be false, deceptive, or misleading if it:
(a) Contains a misrepresentation of facts, or
(b) Makes only a partial disclosure of relevant 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) Contains any other representation, statement, or claim which misleads or deceives, or
(f) 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 letterhead 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 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.
5. 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.
6. 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, or
(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.
(3) As used in the rules of this Board, the terms "advertisement" and "advertising" shall mean any statements, oral or written, disseminated to or before the public or any portion thereof, with the intent of furthering the purpose, either directly or indirectly, of selling professional services, or offering to perform professional services, or inducing members of the public to enter into any obligation relating to such professional services.
(4) It shall be the responsibility of any duly licensed physician who utilizes the electronic media for the purpose of advertising to insure 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.
(5) Any duly licensed physician who solicits patients personally or through an agent shall be responsible for any advertising used to solicit such patients. For purposes of this rule and section 458.331(1)(l), F.S., 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 patient pursuant to managed care plans, licensed or certified by the Florida Department of Insurance.
(6) 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.
(7) No person licensed pursuant to chapter 458, F.S., shall disseminate or cause the dissemination of any advertisement or advertising that contains the licensee's name without clearly identifying the licensee as either a medical doctor (M.D.), physician assistant (P.A.), or anesthesiologist assistant (A.A.).
(8) The recognizing agencies currently approved by the Board of Medicine include:
(a) American Board of Facial Plastic & Reconstructive Surgery, Inc. (Approved February 1997).
(b) American Board of Pain Medicine (Approved August 1999).
(c) American Association of Physician Specialists, Inc./American Board of Physician Specialties (Approved February 2002).
(d) American Board of Interventional Pain Physicians (Approved June 2010).
(e) American Board of Vascular Medicine (Approved December 2014).
(f) United Council for Neurologic Subspecialties (Approved April 2017).
(g) American Board of Electrodiagnositic Medicine (Approved October 2017).

Notes

Fla. Admin. Code Ann. R. 64B8-11.001

Rulemaking Authority 458.309 FS. Law Implemented 456.072(1)(t), 458.331(1)(d), (l), (n), (o), 458.3312 FS.

New 3-31-80, Formerly 21M-24.01, Amended 11-15-88, Formerly 21M-24.001, Amended 12-5-93, Formerly 61F6-24.001, Amended 4-3-95, 4-16-96, 5-29-97, 5-7-97, Formerly 59R-11.001, Amended 1-31-01, 9-1-02, 1-16-07, 10-17-10, 11-20-12, Amended by Florida Register Volume 41, Number 032, February 17, 2015 effective 3-2-15, Amended by Florida Register Volume 43, Number 163, August 22, 2017 effective 9-4-17, Amended by Florida Register Volume 44, Number 030, February 13, 2018 effective 2-26-18, Amended by Florida Register Volume 46, Number 215, November 3, 2020 effective 11-16-20.

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