10 Things for Physicians to Know About Advertising in New Jersey

Whether a physician is advertising in a newspaper, disseminating a pamphlet about the practice, or using the internet, caution must be taken to avoid running afoul of the advertising regulations of the New Jersey Board of Medical Examiners (BME).

Among other practices, BME considers the following to be professional misconduct when it comes to advertising:

  1. making false, fraudulent, misleading or deceptive statements
  2. misrepresenting a material fact
  3. suppressing, omitting, or concealing a material fact when the physician knows or should know that it is improper and would prevent a prospective patient from making an informed judgment
  4. claiming that the services performed or materials used are superior to what is ordinarily performed or used in the profession
  5. promoting services that the physician knows or should know is beyond the physician’s ability to perform
  6. using techniques that appear to intimidate or exert undue pressure on a prospective patient
  7. communication of any facts or information which may personally identify a patient without first obtaining the patient’s signed written consent in advance
  8. offering, giving or accepting a fee or other consideration to or from a third party for the referral of a patient
  9. any print or language that obscures a material fact
  10. any guarantees of results from any procedure

Prior to using patient testimonials, it would behoove physicians to check the appropriate regulation for the required disclosures and prohibitions. Similarly, rules should be consulted if a physician plans to publish fees. Physicians should also note that BME may require the provider to substantiate the truthfulness of any assertions or representations made in advertisement and failure to provide such factual support will be deemed as professional misconduct.

Physicians should also be concerned with advertising on Groupon, LivingSocial or other similar websites. Such arrangements implicate fee splitting laws and other regulations and, if the items or services reimbursable by a Federal healthcare program are part of the advertisement, then the Antikickback statute may also be a concern. We have previously addressed this issue herehere and here.

If you have questions about physician advertising requirements, Groupons for doctors or need other legal assistance, please contact us.