Many physicians and other health professionals maintain a robust Internet presence, including websites and portals to provide patients with information. However, I was recently reminded of how easy it is to overlook the regulatory requirements in the web design process after reviewing one of my physician client’s websites. Even in states that do not have robust regulatory schemes, health professionals would be well advised to consider the requirements set out in more heavily regulated states to avoid potential liability to patients and/or a violation of a catch-all regulation prohibiting a physician from acting in an unprofessional or dishonorable manner that is likely to deceive, defraud or injure the public.
The Texas Medical Board’s physician website and telemedicine regulations demonstrate the types of requirements that boards of medical examiners have imposed. The communications covered by health professional advertising rules generally include information disseminated on the Internet or web.
A health professional’s website cannot contain false, deceptive or misleading statements. A statement can be deemed to be false, deceptive or misleading if it:
1. Contains material false claims or misrepresentations of material facts which cannot be substantiated.
For example, a physician was disciplined for naming an ordained minister from the doctor’s church as a “clinician” on her website. In another case a physician was fined $5,000 based on his publications of advertisements containing statements that were confusing, misleading and not readily subject to verification.
2. Contains material implied false claims or implied misrepresentations of material fact.
3. Omits material facts.
4. Makes a representation likely to create an unjustified expectation about the results of a healthcare service or procedure.
For example, the Board disciplined a physician based upon false, deceptive or misleading statements concerning the benefits of chelation therapy. In another case, a physician was disciplined for including a claim that a procedure would result in “perfect vision, or better,” without including a disclaimer.
5. Advertises or assures a permanent cure for an incurable disease.
6. Compares a healthcare professional’s services with another healthcare professional’s services unless the comparison can be factually substantiated.
For example, the Texas Medical Board disciplined a physician based upon claims that he was “America’s weight-loss doctor” and one of the “most successful bariatric surgeons in the nation.” It didn’t help that the Board also found that he failed to practice medicine in an acceptable manner.
7. Advertises professional superiority or the performance of professional service in a superior manner if the advertising is not subject to verification.
For example, a physician was fined $2,000 based on the Board’s finding that the doctor proclaimed his services were some of the “best in the world.”
8. Contains a testimonial that includes false, deceptive or misleading statements, or fails to include disclaimers or warnings as to the credentials of the person making the testimonial.
9. Includes photographs or other representations of models or actors without explicitly identifying them as models and not actual patients.
For example, the Board disciplined a physician based on allegations he distributed an advertisement that included a photograph of an individual who was not identified as a model or an actual patient and also incorrectly referred to cosmetics as a field of medicine.
10. Causes confusion or misunderstanding as to the credentials, education or licensure of a healthcare professional.
For example, the Board took action against a physician for the advertising of a dialysis center where she practiced that listed her as a board certified nephrologist when she was not certified in that specialty. In another case, the Board took action against a physician using references to organizations not recognized by the American Board of Medical Specialties.
11. Represents that healthcare insurance deductibles or copayments may be waived or are not applicable to healthcare services to be provided if the deductibles or copayments are required.
12. Represents that the benefits of a health benefit plan will be accepted as full payment when deductibles or copayments are required.
13. States that a service is free when it is not, or contains untruthful or deceptive claims regarding costs and fees.
If other costs are frequently incurred when the advertised service is obtained, then this should be disclosed. Offers of free service must indeed be free. To state that a service is free but a third party is billed is deceptive and subject to disciplinary action.
14. Makes a representation that is designed to take advantage of the fears or emotions of a particularly susceptible type of patient.
15. Advertises or represents, in the use of a professional name, a title or professional identification that is expressly or commonly reserved to or used by another profession or professional.
16. Claims that a physician has a unique or exclusive skill without substantiation of such claim.
17. Involves uninvited solicitation such as “drumming” patients or conduct considered an offense relating to the solicitation of patients.
18. Fails to disclose the fact of giving compensation or anything of value to representatives of the press, radio, television or other communicative medium in anticipation of or in return for any advertisement, article or infomercial, unless the nature, format or medium of such advertisement makes the fact of compensation apparent.
In settling website advertising cases, state medical boards often will require that physicians “monitor” their practice’s website to assure it doesn’t contain false or misleading statements in the future for a period of time, in addition to educational and monetary remedies. Where the board is less convinced of compliance, the agreed order may contain provisions under which the physician’s advertisements will be monitored by the board’s compliance division for a specified period of time.
The Texas Medical Board also requires physicians who have a website and bill for services provided over the Internet to clearly disclose:
- Ownership of the website;
- Specific services provided;
- Office address and contact information;
- Licensure and qualifications of physician(s) and associated healthcare providers;
- Fees for online consultation and services and how payment is to be made;
- Financial interest in any information, products or services;
- Appropriate uses and limitations of the site, including providing health advice and emergency health situations;
- Uses and response times for e-mails, electronic messages and other communications transmitted via the site;
- To whom patient health information may be disclosed and for what purpose;
- Rights of patients with respect to patient health information; and
- Information collected and any passive tracking mechanisms utilized.
In addition, the physician must provide patients with a clear mechanism to access, supplement and amend patient-provided personal health information; provide feedback regarding the site and the quality of information and services; and register complaints, including information regarding filing a complaint with the Texas Medical Board.
Further, the advertising or promotion of goods or products that a health professional sells outside the normal course of business from which the professional receives direct remuneration or incentives is prohibited.