October 23, 2012

Question:

Hi Jennifer, 

I'm working on my practice marketing materials.  Is there anything I need to know?  Also, what about Groupon and other online incentive programs?  Can I use them?

Dr. T

Answer:

Dr. T, great question.  One every practitioner should be concerned about.  There are clear restrictions for marketing in the NY Education Law, section 6530(27).  For those of you reading in other states looking for guidance, let me know which states and we will address.  In NY, the Department of Education watches (actually actively watches) for advertising "not in the public interest", including advertising or soliciting that:
 
(i)     is false, fraudulent, deceptive, misleading, sensational, or flamboyant;
(ii)    represents intimidation or undue pressure;
(iii)   uses testimonials;
(iv)   guarantees any service;
(v)    makes any claim relating to professional services or products or the costs or price therefor which cannot be substantiated by the licensee, who shall have the burden of proof;
(vi)    makes claims of professional superiority which cannot be substantiated by the licensee, who shall have the burden of proof; or
(vii)   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.

Recent reviews by government licensure agencies (OPMC and OPD) have focused on Groupon and other internet marketing companies involved in "fee splitting" - the sharing of fees for services.  For example, offering Botox on Groupon, where Groupon is paid $100 for listing the ad for each service bought - sharing in the fee received from the patient for the service.  NY's fee splitting prohibition is also under the NY Education Law, section 6530(19) -

19. 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 medicine, or a legally authorized trainee  practicing  under the  supervision  of  a  licensee.  This prohibition shall include any arrangement or agreement whereby the  amount  received  in  payment  for furnishing  space, facilities, equipment or personnel services used by a licensee constitutes a percentage of, or is  otherwise  dependent  upon, the  income  or  receipts  of the licensee from such practice, except as otherwise provided by law with respect to a facility licensed  pursuant to  article twenty-eight of the public health law or article thirteen of the mental hygiene law;

Reviews by OPMC and OPD are serious, and should be treated as such.  Any letter received by licensure should be directed to a healthcare attorney as soon as received.  While the issue identified by licensure may be a specific advertising instance, once your practice is on licensure's radar, licensure has the authority to investigate any potential "professional misconduct".  The first imperative is taking the healthcare provider out of communication with licensure to assess exposure and to mitigate any potential fishing expedition.  Next imperative, resolve any inquiry.  Oftentimes a claim of improper advertising is an ancillary cause of action by licensure - either added as an addendum to existing claims of professional misconduct, or as the initial impetus for review.  If I had to surmise why marketing would be an impetus for review is, if a practitioner has not taken the time to represent themselves to the public properly and in conformance with applicable rules, laws and regulations, that practitioner probably is not following other rules, laws and regulations.  Bottom line - take care to ensure you are advertising compliantly.  If you aren't sure or would like a review, contact me at Jennifer@Kirschenbaumesq.com.