N.J. Admin. Code § 13:35-6.10 - Advertising and solicitation practices

(a) The following words and terms, when used in this section, shall have the following meanings unless the context clearly indicates otherwise.

1. The term "advertisement" shall mean any attempt directly or indirectly by publication, dissemination, or circulation in print or electronic media which directly or indirectly induces or attempts to induce any person or entity to purchase or enter into an agreement to purchaser services, treatment, or goods related thereto from a Board licensee.

2. "Board licensee" shall mean any individual holding a license issued by the State Board of Medical Examiners.

3. The term "routine professional service" shall refer to a service which a board licensee or professional association routinely performs.

4. The term "print media" shall include newspapers, magazines, periodicals, professional journals, telephone directories, circulars, handbills, flyers, billboards, signs, matchcovers and other similar items, documents or comparable publications, the content of which is disseminated by means of the printed word.

5. The term "electronic media" shall include radio, television, and Internet.

6. The term "range of fees" shall refer to any expressly stated upper and lower limit on the fees charged for services or goods offered by a Board licensee.

7. The term "graphic representation" shall mean the use of drawings, animations, clinical photographs, dramatizations, music or lyrics.

(b) A Board licensee may provide information to the public by advertising in print or electronic media.

(c) A Board licensee who engages in the use of advertising which contains any of the following shall be deemed to be engaged in professional misconduct:

1. Any statement, claim or format including, but not limited to, a graphic representation, which is false, fraudulent, misleading or deceptive;

2. Any misrepresentation of a material fact;

3. The suppression, omission or concealment of any material fact under circumstances which a Board licensee knows or should know that the omission is improper or prohibits a prospective patient from making a full and informed judgment on the basis of the information set forth in the advertisement;

4. Any claim that the service performed or the materials used are superior to that which is ordinarily performed or used in the profession;

5. Any promotion of a professional service which the Board licensee knows or should know is beyond the licensee's ability to perform;

6. A technique or communication which appears to intimidate, exert undue pressure or to unduly influence a prospective patient or consumer;

7. Any personal testimonial attesting to the quality or competence of a service or treatment by a licensee involving medical or technical assessments which are beyond the patient's competency to assess, or any testimonial not in compliance with (n) below;

8. The communication of any fact, data or information which may personally identify a patient without that patient's signed written permission obtained in advance;

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

10. Any print, language or format which directly or indirectly obscures a material fact;

11. Any guarantee of results from any procedure is prohibited;

12. Any violations of (d) through (n) below.

(d) The licensing board may require a licensee to substantiate the truthfulness of any assertion or representation set forth in an advertisement. Failure of a Board licensee to provide factual substantiation to support a representation or assertion shall be deemed professional misconduct.

(e) A Board licensee shall not engage either directly or through the use of any agent, employee or representative in in-person solicitation with a prospective patient or consumer. This subsection shall not prohibit a licensee from offering services through materials provided to a community service organization which makes known the availability of all professional services desiring to be listed; nor shall it prohibit the offering of services by a Board licensee to any bona fide representative of prospective patients including, but not limited to, employers, labor union representatives, or insurance carriers.

(f) Advertising making reference to or setting forth a fee shall be limited to that which contains a fixed or a stated range of fees for specifically described routine professional services or goods offered by licensees.

1. A Board licensee who advertises fees shall disclose all relevant and material variables and considerations which are ordinarily included in such a service so that the fee will be clearly understood by prospective patients or consumers.

2. In the absence of such disclosure referred to in (f)1 above, the stated fees shall be presumed to include everything ordinarily required for such a service. No additional charges shall be made for an advertised service unless the advertisement includes a specific delineation of additional services contemplated in the fee to be charged therefor.

(g) The requirements for advertising free or discounted services are as follows:

1. An advertisement offering a fee reduction shall state the reduced fee or range of fees and the physician's usual fee or range of fees for each service for which a reduction is advertised. The reference fee required in this subsection shall have been the usual fee charged for the advertised service for a period of not less than 90 days prior to the advertised reduction.

2. All offers of free services or discounts shall include a statement of the specific charges for all associated or reasonably anticipated services which are not included in the offer of free or discounted services. If the discount or free service does not apply to all services to be rendered, the advertisement shall specify any associated or reasonably anticipated services which are not included (for example, free eye screening for senior citizens does not include charges for refraction, eyeglasses and contact lens fitting).

3. The licensee shall maintain a list of the patient names and dates of service for all patients for whom he or she has provided free or discounted services. The list may be maintained as part of the physician's appointment book as long as the patient receiving free or discounted services is identifiable. The list shall be maintained for seven years from the date of last entry except in the case of massive screening programs performed off-site (out of the office) as a community service, and which are sponsored by a governmental or non-profit organization.

4. Any person offering free or discounted medical services shall file copies of any such advertisement with the Board within 30 days of initial publication. The Board's acceptance for filing of such an advertisement shall not be deemed approval of the advertisement's content.

5. Any offer of free or discounted diagnostic services shall include the providing of results to the patient or a designated licensee or duly authorized representative within 30 days of a written request by the patient or duly authorized representative.

6. A patient record shall be maintained for all discounted or free services for seven years from the date of last entry except in the case of massive screening programs done off-site (out of the office) as a community service, and which are sponsored by a governmental or non-profit organization.

7. The patient record maintained shall be made available upon patient request to the same extent as under the Board's patient record rule (N.J.A.C. 13:35-6.5), and the patient shall be advised at the time the service is rendered that the record will be available to him or her.

8. Except for those services specifically excluded in the advertisement offering free services, the physician shall not charge for any service whatsoever rendered during a period of 72 hours from the time the free service was rendered.

(h) 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 and Senior Services 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.

(i) The responsibility for the form and content of any advertisement offering services or goods by a Board licensee shall be jointly and severally that of each Board licensee who is a principal, partner or officer of the firm or entity identified in the advertisement.

(j) The time period during which an advertised fee will remain in effect shall be set forth on the face of the advertisement. In the absence of such disclosure, the effective period shall be deemed to be 30 days from the date of the advertisement's final publication.

(k) A video or audio tape of every advertisement communicated by electronic media shall be retained by the Board licensee and shall be made available for review upon request by the Board or its designee. A copy of any advertisement appearing in the print media shall also be retained by the licensee and made available for review. The tapes and print media copies required to be retained by this subsection, shall be kept for a period of three years from the date of the last authorized publication or dissemination of the advertisement.

(l) All Board licensee advertisements and public representations intended to be displayed or circulated away from the office premises, including telephone directory advertisements, may, if desired, list the professional service corporation or trade name under which the practice is conducted but shall disclose the nature of the practice, and the name and address or telephone number of at least one of the principal practitioners. This requirement does not apply to licensees employed by an ambulatory health care facility licensed by the New Jersey State Department of Health and Senior Services.

(m) Any licensee advertising board certification in a specialty shall possess current certification by a specialty board or certifying entity. Specialty boards recognized by the American Board of Medical Specialties (ABMS), the American Osteopathic Association (AOA), and/or the American Podiatric Medicine Association (APMA) shall be approved by the Board and included in a list maintained by the Board. A licensee advertising board certification shall conspicuously specify in the advertisement the specific specialty board or certifying entity granting the certification (for example, the American Board of Psychiatry and Neurology, the American Board of Radiology, etc.), the national organization recognizing such specialty board or certifying entity (for example, ABMS, AOA, APMA, etc.), if any, and, if not included in the name of the specialty board or certifying entity itself, the field of medical or surgical specialty in which the certification was conferred.

(n) The requirements for testimonial advertisements are as follows:

1. All testimonials involving a specific or identifiable procedure shall truthfully reflect the actual experience of the patient and shall include the following conspicuously displayed statements:

i. "This procedure may not be suitable for every patient. All patients must be evaluated by a physician as to the appropriateness of performing the procedure".

ii. "The above testimonial represents the individual's response and reaction to the procedure; however, no medical procedure is risk-free. Associated potential risks and complications should be discussed with the physician rendering this procedure".

2. Where an advertiser directly or indirectly provides compensation to a testimonial giver, the fact of such compensation shall be conspicuously disclosed in a legible and readable manner in any advertisement in the following language: "COMPENSATION HAS BEEN PROVIDED FOR THIS TESTIMONIAL."

3. A physician who advertises through the use of testimonials shall maintain documentation relating to such testimonials for a period of three years from the date of the last use of the testimonial. Such documentation shall include, but not be limited to, the name, address and telephone number of the individual in the advertisement, the type and amount or value of compensation and a signed, notarized statement and release verifying the truthfulness of the information contained in the testimonial and indicating that person's willingness to have his or her testimonial used in the advertisement obtained prior to the time the testimonial is advertised.

4. Any guarantee of results from any procedure is prohibited.

(o) Nothing contained in this section shall be construed to prohibit the licensing board from adopting additional rules concerning advertising by Board licensees. To the extent that any conflict or inconsistency may arise between the provisions of this section and any subsequently adopted rule dealing more specifically with the same subject matter as set forth, such subsequent adopted rule shall control.

Notes

N.J. Admin. Code § 13:35-6.10

R.1984 d.139, effective 4/16/1984.
See: 16 N.J.R. 32(a), 16 N.J.R. 921(a).
A rule entitled "Advertising and Solicitation" formerly at this cite was repealed and replaced.
Amended, R.1984 d.372, effective 8/20/1984.
See: 16 N.J.R. 1026(b), 16 N.J.R. 2286(a).
Subsection (m) new.
Amended by R.1986 d.467, effective 12/1/1986.
See: 18 N.J.R. 1788(d), 18 N.J.R. 2390(a).
Text added to (h) and ( l).
Amended by R.1989 d.325, effective 6/19/1989.
See: 21 N.J.R. 696(a), 21 N.J.R. 1710(b).
In (a): deleted "Definitions" and added new 7 regarding graphic representation. Revised language throughout to modify an existing prohibition on use of testimonials, discounts and offering of free services.
Added new (c)11 and 12, deleting old (c)11.
Added new (g)1-8 and new (m) and (n), recodifying old "n" as new " o".
Amended by R.1994 d.329, effective 7/5/1994.
See: 26 N.J.R. 1219(b), 26 N.J.R. 2795(c).
Amended by R.1994 d.522, effective 10/17/1994.
See: 26 N.J.R. 2526(a), 26 N.J.R. 4195(a).
Amended by R.1999 d.356, effective 10/18/1999.
See: 31 N.J.R. 1742(a), 31 N.J.R. 3117(a).
In (a)5, added a reference to the Internet.
Amended by R.2005 d.120, effective 4/18/2005.
See: 36 N.J.R. 4633(a), 37 N.J.R. 1203(a).
Rewrote (m).
Petition for Rulemaking.
See: 42 N.J.R. 859(b), 1255(d), 2150(c).
Amended by R.2011 d.155, effective 6/6/2011.
See: 42 N.J.R. 1310(a), 43 N.J.R. 1359(b).
In (h) and (l), inserted "and Senior Services".