Among the many rules doctors must comply with are the rules pertaining to advertisement of healthcare services.
Traditional Advertising
Most providers are aware that their advertisement should be truthful and not deceptive, misleading, sensational or flamboyant. To do otherwise would be considered professional misconduct. Less obvious conduct that could land a physician in hot water with the State Board of Medicine includes: a) making claims relating to professional services or products or the cost or price which cannot be substantiated by the licensee; b) making unsubstantiated claims of professional superiority; or c) offering bonuses or inducement in any form other than a discount or reduction in an established fee or price for a professional service or product.
Where physicians make claims about professional superiority or other claims relating to his or her professional services, they carry the burden of substantiating their claims.
Guaranteeing that satisfaction or a cure will result from the performance of a professional service is also considered professional misconduct.
To Groupon or Not to Groupon
With the recent popularity of Internet advertising, many physicians and other medical and dental professionals are also considering placing ads on Groupon, LivingSocial or other similar websites to reach a wider audience. We have previously addressed this issue is several other articles (see here, here and here) discussing how physicians should carefully consider all the factors before proceeding to advertise on social media. State medical boards, including the New York State Board of Medicine, continue to be wary of such arrangements primarily because of the possibility of a physician violating fee splitting/sharing laws.
Recently, the New York State Education Department, Office of the Professions, placed the following warning on its website, which states, in part:
In the case of coupons, including Internet coupons, licensed professionals who advertise these discounts should be cautious. Generally speaking, discounts cannot be limited to one segment of your practice without offering the same discount to the rest of your practice. Additionally, the fee you pay for these advertising services may constitute fee splitting. The offering of improper discounts and/or the improper sharing of professional fees may subject a licensee to charges of professional misconduct.
There are several definitions of unprofessional conduct in Part 29 of the Rules of the Board of Regents which may be implicated by the use of coupons.
Those rules include:
- exercising undue influence on the patient including the promotion of the sale of services, goods, appliances or drugs in such manner as to exploit the patient or client for the financial gain of the practitioner or of a third party;
- directly or indirectly offering, giving, soliciting, or receiving or agreeing to receive, any fee or other consideration to or from a third party for the referral of a patient or client or in connection with the performance of professional services;
- permitting any person to share in the fees for professional services, other than: a partner, employee, associate in a professional firm or corporation, professional subcontractor or consultant authorized to practice the same profession, or a legally authorized trainee practicing under the supervision of a licensed practitioner; and
- advertising or soliciting for patronage that is not in the public interest, which includes, among other infractions, offers bonuses or inducements in any form other than a discount or reduction in an established fee or price for a professional service or product.
See 29.1(b)(2), (3), (4), and (12). These rules apply to dentists and other licensed professionals except physicians, who must comply with similar restrictions spelled out in a different section of the law. See N.Y. Ed. Law 6530(17)-(19), (27).
If you have questions regarding advertising for doctors or dentists or require other legal assistance, please contact us.