Texas 2009 - 81st Regular

Texas House Bill HB3964 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	By: Dunnam H.B. No. 3964
2	2
3	3
4	4	A BILL TO BE ENTITLED
5	5	AN ACT
6	6	relating to a requirement that physicians file certain advertising
7	7	with the Texas Medical Board.
8	8	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
9	9	SECTION 1. Section 153.002, Occupations Code, is amended to
10	10	read as follows:
11	11	Sec. 153.002. RULES RESTRICTING ADVERTISING OR COMPETITIVE
12	12	BIDDING. (a) The board may not adopt rules restricting advertising
13	13	or competitive bidding by a person regulated by the board except:
14	14	(1) to prohibit false, misleading, or deceptive
15	15	practices by the person; and
16	16	(2) as provided by Section 153.0021.
17	17	(b) The board may not include in its rules to prohibit
18	18	false, misleading, or deceptive practices by a person regulated by
19	19	the board a rule that:
20	20	(1) subject to Section 153.0021, restricts the use of
21	21	any advertising medium;
22	22	(2) restricts the person's personal appearance or the
23	23	use of the person's voice in an advertisement;
24	24	(3) relates to the size or duration of an
25	25	advertisement by the person; or
26	26	(4) restricts the person's advertisement under a trade
27	27	name.
28	28	SECTION 2. Subchapter A, Chapter 153, Occupations Code, is
29	29	amended by adding Section 153.0021 to read as follows:
30	30	Sec. 153.0021. FILING REQUIREMENTS FOR PUBLIC
31	31	ADVERTISEMENTS AND WRITTEN, RECORDED, ELECTRONIC, OR OTHER DIGITAL
32	32	SOLICITATIONS. (a) The board by rule shall establish an
33	33	advertising review committee to perform the duties assigned by this
34	34	section.
35	35	(b) Except as provided in paragraphs (c) and (e) of this
36	36	section, a physician shall file with the advertising review
37	37	committee, no later than the mailing or sending by any means,
38	38	including electronic, of a written, audio, audio-visual, digital
39	39	or other electronic solicitation communication:
40	40	(1) a copy of the written, audio, audio-visual,
41	41	digital, or other electronic solicitation communication being sent
42	42	or to be sent to one or more prospective patients for the purpose of
43	43	obtaining professional employment, together with a representative
44	44	sample of the envelopes or other packaging in which the
45	45	communications are enclosed;
46	46	(2) a completed physician advertising and
47	47	solicitation communication application; and
48	48	(3) a check or money order payable to the Texas Medical
49	49	Board for the fee set by the board. Such fee shall be for the sole
50	50	purpose of defraying the expense of enforcing the rules related to
51	51	such solicitations.
52	52	(b) Except as provided in paragraph (e) of this section, a
53	53	physician shall file with the advertising review committee, no
54	54	later than the first dissemination of an advertisement in the
55	55	public media, a copy of each of the physician's advertisements in
56	56	the public media. The filing shall include:
57	57	(1) a copy of the advertisement in the form in which it
58	58	appears or will appear upon dissemination, such as a videotape,
59	59	audiotape, DVD, CD, a print copy, or a photograph of outdoor
60	60	advertising;
61	61	(2) a production script of the advertisement setting
62	62	forth all words used and describing in detail the actions, events,
63	63	scenes, and background sounds used in such advertisement together
64	64	with a listing of the names and addresses of persons portrayed or
65	65	heard to speak, if the advertisement is in or will be in a form in
66	66	which the advertised message is not fully revealed by a print copy
67	67	or photograph;
68	68	(3) a statement of when and where the advertisement
69	69	has been, is, or will be used;
70	70	(4) a completed physician advertising and
71	71	solicitation communication application form: and
72	72	(5) a check or money order payable to the Texas Medical
73	73	Board for the fee set by the board. Such fee shall be for the sole
74	74	purpose of defraying the expense of enforcing the rules related to
75	75	such advertisements.
76	76	(c) Except as provided in paragraph (e) of this section, a
77	77	physician shall file with the advertising review committee no later
78	78	than its first posting on the internet or other comparable network
79	79	of computers information concerning the physician's or physician's
80	80	firm's website. As used in this section, a "website" means a single
81	81	or multiple page file, posted on a computer server, which describes
82	82	a physician or law firm's practice or qualifications, to which
83	83	public access is provided through publication of a uniform resource
84	84	locator (URL). The filing shall include:
85	85	(1) the intended initial access page of a website;
86	86	(2) a completed physician advertising and
87	87	solicitation communication application form and;
88	88	(3) a check or money order payable to the Texas Medical
89	89	Board for the fee set by the board. Such fee shall be for the sole
90	90	purpose of defraying the expense of enforcing the rules related to
91	91	such websites.
92	92	(d) A physician who desires to secure an advance advisory
93	93	opinion, referred to as a request for pre-approval, concerning
94	94	compliance of a contemplated solicitation communication or
95	95	advertisement may submit to the Physician Advertising Review
96	96	Committee, not less than thirty (30) days prior to the date of
97	97	first dissemination, the material specified by this section or the
98	98	intended initial access page submitted pursuant to this section,
99	99	including the application form and required fee; provided however,
100	100	it shall not be necessary to submit a videotape or DVD if the
101	101	videotape or DVD has not then been prepared and the production
102	102	script submitted reflects in detail and accurately the actions,
103	103	events, scenes, and background sounds that will be depicted or
104	104	contained on such videotapes or DVDs, when prepared, as well as the
105	105	narrative transcript of the verbal and printed portions of such
106	106	advertisement. If a physician submits an advertisement or
107	107	solicitation communication for pre-approval, a finding of
108	108	noncompliance by the Advertising Review Committee is not binding in
109	109	a disciplinary proceeding or disciplinary action, but a finding of
110	110	compliance is binding in favor of the submitting physician as to all
111	111	materials actually submitted for pre-approval if the
112	112	representations, statements, materials, facts, and written
113	113	assurances received in connection therewith are true and are not
114	114	misleading. The finding of compliance constitutes admissible
115	115	evidence if offered by a party.
116	116	(e) The filing requirements of paragraphs (a), (b), and (c)
117	117	do not extend to any of the following materials, provided those
118	118	materials comply with other applicable law or board rule:
119	119	(1) an advertisement in the public media that contains
120	120	only part or all of the following information,
121	121	(i) the name of the physician or firm and
122	122	physicians associated with the firm, with office addresses,
123	123	electronic addresses, telephone numbers, office and telephone
124	124	service hours, telecopier numbers, and a designation of the
125	125	profession such as "doctor," "physician," "medical office," or
126	126	"firm";
127	127	(ii) the particular areas of law in which the
128	128	physician or firm specializes or possesses special competence;
129	129	(iii) the particular areas of law in which the
130	130	physician or firm practices or concentrates or to which it limits
131	131	its practice;
132	132	(iv) the date of licensure of the physician or
133	133	physicians by the Texas Medical Board and by other state medical
134	134	licensing boards;
135	135	(v) technical and professional licenses or
136	136	certifications granted by this state and other recognized licensing
137	137	or certifying authorities;
138	138	(vi) foreign language ability;
139	139	(vii) fields of medicine in which one or more
140	140	physicians are certified or designated, provided the statement of
141	141	this information is in compliance with other applicable law or
142	142	board rule;
143	143	(viii) identification of prepaid or group
144	144	medical plans in which the physician participates;
145	145	(ix) the acceptance or nonacceptance of credit
146	146	cards;
147	147	(x) any fee for initial consultation and fee
148	148	schedule;
149	149	(xi) other publicly available information
150	150	concerning medical issues, not prepared or paid for by the firm or
151	151	any of its physicians, such as news articles, legal articles,
152	152	editorial opinions, or other medical developments or events;
153	153	(xii) in the case of a website, links to other
154	154	websites;
155	155	(xiii) that the physician or firm is a sponsor of
156	156	a charitable, civic, or community program or event, or is a sponsor
157	157	of a public service announcement;
158	158	(xiv) any disclosure or statement required by
159	159	these rules; and
160	160	(xv) any other information specified from time to
161	161	time as promulgated by the board;
162	162	(2) an advertisement in the public media that:
163	163	(i) identifies one or more physicians or a firm
164	164	as a contributor to a specified charity or as a sponsor of a
165	165	specified charitable, community, or public interest program,
166	166	activity, or event; and
167	167	(ii) contains no information about the
168	168	physicians or firm other than names of the physicians or firm or
169	169	both, location of the medical offices, and the fact of the
170	170	sponsorship or contribution;
171	171	(3) a listing or entry in a regularly published
172	172	directory of physicians;
173	173	(4) an announcement card stating new or changed
174	174	associations, new offices, or similar changes relating to a
175	175	physician or firm, or a tombstone professional card;
176	176	(5) in the case of communications sent, delivered, or
177	177	transmitted to, rather than accessed by, intended recipients, a
178	178	newsletter, whether written, digital, or electronic, provided that
179	179	it is sent, delivered, or transmitted mailed only to:
180	180	(i) existing or former patients; or
181	181	(ii) other physicians or professionals.
182	182	(6) a solicitation communication that is not motivated
183	183	by or concerned with a particular past occurrence or event or a
184	184	particular series of past occurrences or events, and also is not
185	185	motivated by or concerned with the prospective patient's specific
186	186	existing legal problem of which the physician is aware;
187	187	(7) a solicitation communication if the physician's
188	188	use of the communication to secure professional employment was not
189	189	significantly motivated by a desire for, or by the possibility of
190	190	obtaining, pecuniary gain; or
191	191	(8) a solicitation communication that is requested by
192	192	the prospective patient.
193	193	(f) If requested by the Advertising Review Committee, a
194	194	physician shall promptly submit information to substantiate
195	195	statements or representations made or implied in any advertisement
196	196	in the public media and/or written solicitation communication by
197	197	which the physician seeks paid professional employment.
198	198	SECTION 3. Not later than December 1, 2009, the Texas
199	199	Medical Board shall adopt the rules necessary to implement Section
200	200	153.0021, Occupations Code, as added by this Act.
201	201	SECTION 4. (a) Notwithstanding Section 153.0021,
202	202	Occupations Code, as added by this Act, a physician is not required
203	203	to obtain the Texas Medical Board's approval to post the physician's
204	204	public access website on the Internet until June 1, 2010. The board
205	205	by rule may provide for staggered submission of Internet website
206	206	approval forms for approval of physician websites posted before
207	207	that date.
208	208	(b) A physician who, as of the effective date of this Act,
209	209	has posted a public access website regarding the physician's
210	210	practice on the Internet shall submit the application for approval
211	211	of the website required by Section 153.0021, Occupations Code, as
212	212	added by this Act, to the Texas Medical Board on renewal of the
213	213	physician's license to practice medicine.
214	214	SECTION 5. This Act takes effect September 1, 2009.