By: Mathew J. Levy, Esq. & Stacey Lipitz Marder, Esq.
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Overview:

Marketing has taken on a more prominent role in medical practices as a way to attract new patients.  As such, physicians need to ensure that their marketing initiatives are in compliance with all of the applicable rules and regulations governing physician advertising, including the New York State Education Law.  Otherwise the physician may be subject to disciplinary action including but not limited to loss of license.  When physicians utilize websites and other forms of social media, they must take extra precautions in order to protect patient privacy.  Unfortunately many physicians are unaware of these requirements, which can have grave consequences for the physicians and their practices.

Rules and Regulations:

From a federal perspective, advertisements by physicians are legal under the Federal Trade Commission Act, provided such advertisements are not false, deceptive or misleading.  However, New York’s rules and regulations set forth more stringent guidelines with respect to physician advertising.  Specifically, the rules and regulations identify instances where advertising or soliciting is not in the public interest, and therefore is prohibited. 

Under New York Education Law § 6530(27), advertising or soliciting not in the public interest includes, but is not be limited to, advertising or soliciting that:

  • is false, fraudulent, deceptive, misleading, sensational, or flamboyant;
  • uses testimonials
  • guarantees any service;
  • makes any claim relating to professional services or products or the costs or price therefore which cannot be substantiated by the licensee, who shall have the burden of proof;
  • makes claims of professional superiority which cannot be substantiated by the licensee, who shall have the burden of proof; or
  • 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.

Even if consent is obtained from the patient and there is anonymity, physicians must not include testimonials in their marketing materials as it is strictly prohibited[1]. Furthermore, all information presented in any marketing campaign must be accurate and not imply any misrepresentation.  All factual information needs to be substantiated, and all credentials of providers must be listed accurately, including board certification. In the event information is misrepresented, even if unintentional, the physician will still be ultimately responsible.  Physicians also need to be careful about making statements regarding their superiority as well as guarantees regarding services provided.  For example, instead of stating that a type of procedure always cures a certain condition, physicians may need to clearly indicate that the procedures offered may cure a patient, and that results vary. As noted above, physicians are prohibited from offering inducements to patients.  Although many physicians offer incentives for patients to utilize the physicians’ services, including offering free exams and transportation, this is clearly prohibited and the continuance of such incentive plans can have serious repercussions for physicians.

Telemedicine

Specifically, NY Education Law §6530 (24) prohibits the practice or offering to practice medicine beyond the scope permitted by law, or accepting and performing professional responsibilities which the licensee knows or has reason to know that he/she is not competent to perform, or performing, without adequate supervision, professional services which the licensee is authorized to perform only under the supervision of a licensed professional.  As such, physicians need to ensure that they are not practicing in states in which they are not licensed, and that the information being dispersed via their marketing materials is not construed as treatment.  It is therefore recommended that all marketing materials contain a disclaimer indicating that the information provided is only for general information and education purposes amongst other things. 

Patient Confidentiality

With the passage of the HITECH Act[2], physicians need to be especially concerned with complying with the rules and regulations involving patient confidentiality, specifically when they utilize websites, social media and e-mail to communicate with their patients.  Specific areas of concern include the inadvertent disclosure of patients’ protected health information (“PHI”), and the inability to confirm who PHI is being transferred to.  It is therefore recommended that physicians not utilize these methods to communicate with their patients unless such communications are encrypted, and their patients sign a waiver in which they agree to certain terms and conditions with respect to such communications. 

Copyright Infringement

Many physicians utilize pictures and make references to articles and videos in their marketing materials.  Prior to using such materials, physicians must obtain proper authorizations and appropriately reference the source, as otherwise the physicians utilizing such information may be in violation of copyright laws and may be faced with civil liability.  In the event that the appropriate consents have not been obtained, such information should be removed immediately.

Conclusion:

Although advertising can be very profitable for physicians, advertising that is not compliant can have a detrimental effect on physicians’ practices. As such, prior to physician’s engaging in any marketing initiative, including but not limited to print media and websites, it is in the best interest of the physician to have such marketing initiatives reviewed to ensure that they will be effective, as well as compliant. Furthermore, physicians must remember that in the event that they make any changes to their marketing initiative, they must maintain an exact copy of any promulgated version for a period of at least one year after its last appearance.

About the Authors:

Mathew J. Levy is a Partner of the firm and co-chairs the Firms corporate transaction and healthcare regulatory practice. Mr. Levy has particular experience in advising health care clients with respect to contract issues, business transactions, practice formation, regulatory compliance, mergers & acquisitions, professional discipline, healthcare fraud & billing fraud, insurance carrier audits including prepay and post payment review, litigation & arbitration, and asset protection-estate planning. You can reach Mathew Levy at 516-926-3320 or email: mlevy@weisszarett.com.

Stacey Lipitz Marder is an associate at Weiss Zarett Brofman Sonnenklar & Levy, PC., with experience representing healthcare providers in connection with transactional and regulatory matters including the formation and structure of business entities, negotiating and drafting contracts and commercial real estate leases, stock and asset acquisitions and general corporate counseling.  Ms. Marder also has experience advising healthcare clients on a wide range of regulatory issues including Stark, the Anti-Kickback Statute, fraud and abuse regulations, HIPAA, reimbursement and licensing matters.


[1] NY State does allow chiropractors and physical therapists to utilize patient testimonials in their marketing initiatives.  In that case, the testimonials cannot be misleading or misrepresentative. Furthermore, consent would have to be obtained from the patient (preferably written which should be part of the patient’s medical record), and there would have to be a disclaimer following the testimonials indicating that the experiences and results can vary among patients. 

 

[2] The Health Information Technology for Economic and Clinical Health (HITECH) Act, enacted as part of the American Recovery and Reinvestment Act of 2009, was signed into law on February 17, 2009, to promote the adoption and meaningful use of health information technology.  The HITECH Act imposes stricter HIPAA requirements and stiffer penalties for violations.