(1) Policy Statement. The lack of
sophistication on the part of many of the public concerning podiatric,
orthotic, prosthetic, or pedorthic services, the importance of the interests
affected by the choice of a health care provider regulated by the Board and the
foreseeable consequences of unrestricted advertising by health care providers
regulated by the Board which is recognized to pose special possibilities for
deception, require that special care be taken by health care providers
regulated by the Board to avoid misleading the public. The health care
providers regulated by the Board must be mindful that the benefits of
advertising depend upon its reliability and accuracy. Since advertising by
health care providers regulated by the Board is calculated and not spontaneous,
reasonable regulation designed to foster compliance with appropriate standards
serves the public interest without impeding the flow of useful, meaningful, and
relevant information to the public.
(a) Advertisement. Informational
communication to the public in any manner designed to attract public attention
to the practice of a podiatrist, orthotist, prosthetist or pedorthist who is
licensed to practice in Tennessee.
(b) Licensee - Any person holding a license
to practice podiatry, orthotics, prosthetics, or pedorthics in the State of
Tennessee. Where applicable this shall include partnerships and/or
(c) Material Fact -
Any fact which an ordinary reasonable and prudent person would need to know or
rely upon in order to make an informed decision concerning the choice of
podiatrists, orthotists, prosthetists or pedorthists to serve his or her
(d) Bait and
Switch Advertising - An alluring but insincere offer to sell a product or
service which the advertiser in truth does not intend or want to sell. Its
purpose is to switch consumers from buying the advertised service or
merchandise, in order to sell something else, usually for a higher fee or on a
basis more advantageous to the advertiser.
(e) Discounted Fee - Shall mean a fee offered
or charged by a person for a product or service that is less than the fee the
person or organization usually offers or charges for the product or service.
Products or services expressly offered free of charge shall not be deemed to be
offered at a "discounted fee".
Advertising Fees and Services
1. Fixed fees may be advertised for any
2. It is presumed unless
otherwise stated in the advertisement that a fixed fee for a service shall
include the cost of all professional recognized components within generally
accepted standards that are required to complete the service.
(b) Range of Fees. A range of fees
may be advertised for services and the advertisement must disclose the factors
used in determining the actual fee.
Discount Fees. Discount fees may be
1. The discount fee is lower
than the licensee's customary or usual fee charged for the service;
2. The licensee provides the
same quality and components of service and material at the discounted fee that
are normally provided at the regular, non-discounted fee for that
Services and Additional Fees. Related services which may be required in
conjunction with the advertised services for which additional fees will be
charged must be identified as such in any advertisement.
Time Period of Advertised Fees.
1. Advertised fees shall be honored during
the entire time period stated in the advertisement.
2. If no time period is stated in the
advertisement of fees, the advertised fee shall be honored for thirty (30) days
from the advertisement's last date of publication or until the next scheduled
publication, whichever is later.
Advertising Content. The following acts
or omissions in the context of advertisement by any licensee shall constitute
unethical and unprofessional conduct pursuant to Rule 1155-02-.13, and subject
the licensee to disciplinary action pursuant to T.C.A. §
(a) Claims that the services performed,
personnel employed, materials or office equipment used are professionally
superior to that which is ordinarily performed, employed, or used, or that
convey the message that one licensee is better than another when superiority of
services, personnel, materials or equipment cannot be substantiated.
(b) The misleading use of an unearned or
non-health degree in any advertisement.
(c) Failure to include in the advertisement
the certifying board of the podiatrist, orthotist, prosthetist or pedorthist if
the licensee claims to be certified.
(d) Failure to include in the advertisement
the terms "podiatry," "podiatrist," "D.P.M.," "orthotist," "orthotics,"
"prosthetist," "prosthetics," "pedorthics" or "pedorthist" along with the
licensee's name when the licensee is an individual, or failure to include in
the advertisement that the profession pertaining to the services being offered
is podiatry, orthotics, prosthetics, or pedorthics when the practitioner is a
(e) Promotion of
professional services which the licensee knows or should know are beyond the
licensee's ability to perform.
Any appeals to an individual's anxiety in an excessive or unfair
(g) The use of any personal
testimonial attesting to a quality of competency of a service or treatment
offered by a licensee that is not reasonably verifiable.
(h) Utilization of any statistical data or
other information based on past performances for prediction of future services,
which creates an unjustified expectation about results that the licensee can
(i) The communication of
personal identifiable facts, data, or information about a patient without first
obtaining patient consent.
misrepresentation of a material fact.
(k) The knowing suppression, omission or
concealment of any material fact or law without which the advertisement would
be deceptive or misleading.
Statements concerning the benefits or other attributes of podiatric, orthotic,
prosthetic, or pedorthic procedures or products that involve significant risks
1. A realistic assessment
of the safety and efficiency of those procedures or products; and
2. The availability of alternatives;
3. Where necessary to avoid
deception, descriptions or assessment of the benefits or other attributes of
Any communication which creates an unjustified expectation concerning the
potential results of any treatment.
(n) The use of "bait and switch"
Misrepresentation of a licensee's credentials, training, experience, or
(p) Failure to include the
corporation, partnership or individual licensee's name, address, and telephone
number in any advertisement.
After thirty (30) days of the licensee's departure, the use of the name of any
licensee formerly practicing at or associated with any advertised location or
on office signs or buildings. This subparagraph shall not apply in the case of
a retired or deceased former associate who practiced in association with one or
more of the present occupants if the status of the former associate is
disclosed in any advertisement or sign.
(r) Stating or implying that a certain
licensee provides all services when any such services are performed by another
(s) Directly or
indirectly offering, giving, receiving, or agreeing to receive any fee or other
consideration to or from a third party for the referral of a patient in
connection with the performance of professional services.
Advertising Records and Responsibility
(a) Each licensee who is a principal partner,
or officer of a firm or entity identified in any advertisement, is jointly and
severally responsible for the form and content of any advertisement. This
provision shall also include any licensed professional employees acting as an
agent of such firm or entity.
Any and all advertisements are presumed to have been approved by the licensee
(c) A recording
and/or copy of every advertisement communicated by electronic media, and a copy
of every advertisement communicated by print media, and a copy of any other
form of advertisement shall be retained by the licensee for a period of two (2)
years from the last date of broadcast, posting or publication and be made
available for review upon request by the Board or its designee.
(d) At the time any type of advertisement is
placed, the licensee must possess and rely upon information which, when
produced, would substantiate the truthfulness of any assertion, omission or
representation of material fact set forth in the advertisement or public
Severability. It is hereby declared that the sections, clauses, sentences and
part of these rules are severable, are not matters of mutual essential
inducement, and any of them shall be rescinded if these rules would otherwise
be unconstitutional or ineffective. If any one or more sections, clauses,
sentences or parts shall for any reason be questioned in court, and shall be
adjudged unconstitutional or invalid, such judgment shall not affect, impair or
invalidate the remaining provisions thereof, but shall be confined in its
operation to the specific provision or provisions so held unconstitutional or
invalid, and the applicability or invalidity of any section, clause, sentence
or part in any instance shall not be taken to affect or prejudice in any way
its applicability or validity in any other instance.