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Advertising “Board Eligible” Creates Trouble for Texas Physicians

By Joyce McLaughlin

Hospitals frequently recruit physicians who are either Board Certified or “board eligible.” “Board Certified” in medicine means a physician has taken and passed a medical specialty examination.  “Board eligible” in medicine, in contrast, means that a physician has completed the requirements for admission to a medical specialty board examination, such as completion of a specialty residency program, but has not taken and passed that examination.  “Board eligible” is a status often used as a criterion in a physician contract and as a qualification status in Medical Staff Bylaws.

“Board eligible” has in the past also been used by physicians who have completed the required residency training but deferred indefinitely completion of the examination requirements.  However, a new policy by American Board of Medical Specialties (“ABMS”), approved by the Board of Directors on September 21, 2011, limits the period of time that may elapse between the completion of residency training and attainment of Board Certification. Each of the 24 Member Boards must establish a limit for its specialty of no fewer than three years and no more than seven years between completion of training and completion of certification. After that time, a physician who has not attained Board Certification will be ineligible until he/she completes the requirements of that Member Board for re-entry into the examination process. This policy became effective on January 1, 2012.  Implementing this policy can have negative consequences for physicians who do not attain board certification, but can no longer claim board eligibility, if the hospital’s criteria for admission to the medical staff include a board eligibility or board certification requirement.

           The TMB strictly regulates advertising of “Board Certified” and “Board Eligible.” The Board has a broad general prohibition against advertising which is false, misleading or deceptive, or advertising which claims professional superiority or performance of a professional service in a superior manner, if the advertising is not subject to verification.  Advertising which causes confusion or misunderstanding as to the credentials, education, or licensure of a physician or health care professional is also prohibited.  Standards for physician advertising are found in Chapter 164 of the Texas Medical Board rules.

Physicians in Texas can run afoul of Texas Medical Board (“TMB”) rules in several ways when using the terms “Board Certified” or “Board Eligible” in advertising.  Under a Texas Medical Board rule established in 2011, a physician simply cannot advertise at all using the terms “board eligible” or “board qualified,” or any similar word or phrase calculated to convey the same meaning.

In addition, for using the term “Board Certified,” the Texas Medical Board recognizes only those certifying boards which are members of one of three groups:  the American Board of Medical Specialties (ABMS), the American Osteopathic Association Bureau of Osteopathic Specialists (BOS), or the American Board of Oral and Maxillofacial Surgery.  ABMS has 24 Member Boards.  There are many other bodies which provide “certification” for physicians which are not automatically approved by the Texas Medical Board.  The TMB rules do have a mechanism by which a physician certified by a non-ABMS Board can apply to a committee of the TMB to demonstrate that the certifying board meets specific criteria set forth in the rules.  If the certifying body is approved by the TMB following the application, the physician can advertise as being “Board Certified.”

Finally, a physician cannot use “Board Certified” in advertising if his or her Board certification has expired or has not been renewed.

Under TMB definitions, advertising is quite broad.  Advertising includes any type of communication, including oral, written, broadcast, or other types of communication.  Facebook and other social media accounts are included. Communications made to patients, prospective patients, professionals or other persons who might refer patients, and to the public at large are considered to be advertising by the TMB.  Advertising specifically includes communications on signs, nameplates, professional cards, announcements, letterheads, listings in telephone directories and other directories, brochures, radio and television appearances, and information disseminated on the Internet.

Furthermore, the individual physician may be held responsible for the advertising, even if he or she was not actually responsible for the placement of the ad.  In physician practice groups, each physician who is a principal partner or officer of a firm or entity identified in any advertisement, can be held individually responsible for the form and content of any advertisement. This provision also includes any physician employees acting as an agent of the firm or entity. Physicians are responsible for keeping a recording 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.  These copies must be kept by the physician for a period of two years from the last date of broadcast or publication.  The TMB may ask to review these copies, as well as any documentation to substantiate claims made in advertisements.

The need for regulation of physician advertising has been supported by both the American Medical Association and the ABMS.  An AMA survey found that patients are confused about the credentials of those providing their medical care, and an ABMS survey in 2010 found that 91% of the patients surveyed believed that Board Certification is an important factor when choosing a physician.

The TMB will actively enforce their rules with disciplinary action.  A finding by the Board that a physician has used false, misleading or deceptive advertising may result in required removal of all sources of such advertising, administrative penalties or fines, and additional required continuing medical education on ethics and jurisprudence.

 

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Joyce B. McLaughlin is senior counsel at Austin-based Davis & Wilkerson (www.dwlaw.com). She practices health law, addressing issues related to hospitals, physicians, and other health care providers.  McLaughlin is Board Certified in Health Law by the Texas Board of Legal Specialization and is a Member of the State Bar of Texas Health Law Section and served on the Governing Council of the Health Law Section.  She can be reached by email at jmclaughlin@dwlaw.com

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