By: Dunnam H.B. No. 3964
A BILL TO BE ENTITLED
AN ACT
relating to a requirement that physicians file certain advertising
with the Texas Medical Board.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 153.002, Occupations Code, is amended to
read as follows:
Sec. 153.002. RULES RESTRICTING ADVERTISING OR COMPETITIVE
BIDDING. (a) The board may not adopt rules restricting advertising
or competitive bidding by a person regulated by the board except:
(1) to prohibit false, misleading, or deceptive
practices by the person; and
(2) as provided by Section 153.0021.
(b) The board may not include in its rules to prohibit
false, misleading, or deceptive practices by a person regulated by
the board a rule that:
(1) subject to Section 153.0021, restricts the use of
any advertising medium;
(2) restricts the person's personal appearance or the
use of the person's voice in an advertisement;
(3) relates to the size or duration of an
advertisement by the person; or
(4) restricts the person's advertisement under a trade
name.
SECTION 2. Subchapter A, Chapter 153, Occupations Code, is
amended by adding Section 153.0021 to read as follows:
Sec. 153.0021. FILING REQUIREMENTS FOR PUBLIC
ADVERTISEMENTS AND WRITTEN, RECORDED, ELECTRONIC, OR OTHER DIGITAL
SOLICITATIONS. (a) The board by rule shall establish an
advertising review committee to perform the duties assigned by this
section.
(b) Except as provided in paragraphs (c) and (e) of this
section, a physician shall file with the advertising review
committee, no later than the mailing or sending by any means,
including electronic, of a written, audio, audio-visual, digital
or other electronic solicitation communication:
(1) a copy of the written, audio, audio-visual,
digital, or other electronic solicitation communication being sent
or to be sent to one or more prospective patients for the purpose of
obtaining professional employment, together with a representative
sample of the envelopes or other packaging in which the
communications are enclosed;
(2) a completed physician advertising and
solicitation communication application; and
(3) a check or money order payable to the Texas Medical
Board for the fee set by the board. Such fee shall be for the sole
purpose of defraying the expense of enforcing the rules related to
such solicitations.
(b) Except as provided in paragraph (e) of this section, a
physician shall file with the advertising review committee, no
later than the first dissemination of an advertisement in the
public media, a copy of each of the physician's advertisements in
the public media. The filing shall include:
(1) a copy of the advertisement in the form in which it
appears or will appear upon dissemination, such as a videotape,
audiotape, DVD, CD, a print copy, or a photograph of outdoor
advertising;
(2) a production script of the advertisement setting
forth all words used and describing in detail the actions, events,
scenes, and background sounds used in such advertisement together
with a listing of the names and addresses of persons portrayed or
heard to speak, if the advertisement is in or will be in a form in
which the advertised message is not fully revealed by a print copy
or photograph;
(3) a statement of when and where the advertisement
has been, is, or will be used;
(4) a completed physician advertising and
solicitation communication application form: and
(5) a check or money order payable to the Texas Medical
Board for the fee set by the board. Such fee shall be for the sole
purpose of defraying the expense of enforcing the rules related to
such advertisements.
(c) Except as provided in paragraph (e) of this section, a
physician shall file with the advertising review committee no later
than its first posting on the internet or other comparable network
of computers information concerning the physician's or physician's
firm's website. As used in this section, a "website" means a single
or multiple page file, posted on a computer server, which describes
a physician or law firm's practice or qualifications, to which
public access is provided through publication of a uniform resource
locator (URL). The filing shall include:
(1) the intended initial access page of a website;
(2) a completed physician advertising and
solicitation communication application form and;
(3) a check or money order payable to the Texas Medical
Board for the fee set by the board. Such fee shall be for the sole
purpose of defraying the expense of enforcing the rules related to
such websites.
(d) A physician who desires to secure an advance advisory
opinion, referred to as a request for pre-approval, concerning
compliance of a contemplated solicitation communication or
advertisement may submit to the Physician Advertising Review
Committee, not less than thirty (30) days prior to the date of
first dissemination, the material specified by this section or the
intended initial access page submitted pursuant to this section,
including the application form and required fee; provided however,
it shall not be necessary to submit a videotape or DVD if the
videotape or DVD has not then been prepared and the production
script submitted reflects in detail and accurately the actions,
events, scenes, and background sounds that will be depicted or
contained on such videotapes or DVDs, when prepared, as well as the
narrative transcript of the verbal and printed portions of such
advertisement. If a physician submits an advertisement or
solicitation communication for pre-approval, a finding of
noncompliance by the Advertising Review Committee is not binding in
a disciplinary proceeding or disciplinary action, but a finding of
compliance is binding in favor of the submitting physician as to all
materials actually submitted for pre-approval if the
representations, statements, materials, facts, and written
assurances received in connection therewith are true and are not
misleading. The finding of compliance constitutes admissible
evidence if offered by a party.
(e) The filing requirements of paragraphs (a), (b), and (c)
do not extend to any of the following materials, provided those
materials comply with other applicable law or board rule:
(1) an advertisement in the public media that contains
only part or all of the following information,
(i) the name of the physician or firm and
physicians associated with the firm, with office addresses,
electronic addresses, telephone numbers, office and telephone
service hours, telecopier numbers, and a designation of the
profession such as "doctor," "physician," "medical office," or
"firm";
(ii) the particular areas of law in which the
physician or firm specializes or possesses special competence;
(iii) the particular areas of law in which the
physician or firm practices or concentrates or to which it limits
its practice;
(iv) the date of licensure of the physician or
physicians by the Texas Medical Board and by other state medical
licensing boards;
(v) technical and professional licenses or
certifications granted by this state and other recognized licensing
or certifying authorities;
(vi) foreign language ability;
(vii) fields of medicine in which one or more
physicians are certified or designated, provided the statement of
this information is in compliance with other applicable law or
board rule;
(viii) identification of prepaid or group
medical plans in which the physician participates;
(ix) the acceptance or nonacceptance of credit
cards;
(x) any fee for initial consultation and fee
schedule;
(xi) other publicly available information
concerning medical issues, not prepared or paid for by the firm or
any of its physicians, such as news articles, legal articles,
editorial opinions, or other medical developments or events;
(xii) in the case of a website, links to other
websites;
(xiii) that the physician or firm is a sponsor of
a charitable, civic, or community program or event, or is a sponsor
of a public service announcement;
(xiv) any disclosure or statement required by
these rules; and
(xv) any other information specified from time to
time as promulgated by the board;
(2) an advertisement in the public media that:
(i) identifies one or more physicians or a firm
as a contributor to a specified charity or as a sponsor of a
specified charitable, community, or public interest program,
activity, or event; and
(ii) contains no information about the
physicians or firm other than names of the physicians or firm or
both, location of the medical offices, and the fact of the
sponsorship or contribution;
(3) a listing or entry in a regularly published
directory of physicians;
(4) an announcement card stating new or changed
associations, new offices, or similar changes relating to a
physician or firm, or a tombstone professional card;
(5) in the case of communications sent, delivered, or
transmitted to, rather than accessed by, intended recipients, a
newsletter, whether written, digital, or electronic, provided that
it is sent, delivered, or transmitted mailed only to:
(i) existing or former patients; or
(ii) other physicians or professionals.
(6) a solicitation communication that is not motivated
by or concerned with a particular past occurrence or event or a
particular series of past occurrences or events, and also is not
motivated by or concerned with the prospective patient's specific
existing legal problem of which the physician is aware;
(7) a solicitation communication if the physician's
use of the communication to secure professional employment was not
significantly motivated by a desire for, or by the possibility of
obtaining, pecuniary gain; or
(8) a solicitation communication that is requested by
the prospective patient.
(f) If requested by the Advertising Review Committee, a
physician shall promptly submit information to substantiate
statements or representations made or implied in any advertisement
in the public media and/or written solicitation communication by
which the physician seeks paid professional employment.
SECTION 3. Not later than December 1, 2009, the Texas
Medical Board shall adopt the rules necessary to implement Section
153.0021, Occupations Code, as added by this Act.
SECTION 4. (a) Notwithstanding Section 153.0021,
Occupations Code, as added by this Act, a physician is not required
to obtain the Texas Medical Board's approval to post the physician's
public access website on the Internet until June 1, 2010. The board
by rule may provide for staggered submission of Internet website
approval forms for approval of physician websites posted before
that date.
(b) A physician who, as of the effective date of this Act,
has posted a public access website regarding the physician's
practice on the Internet shall submit the application for approval
of the website required by Section 153.0021, Occupations Code, as
added by this Act, to the Texas Medical Board on renewal of the
physician's license to practice medicine.
SECTION 5. This Act takes effect September 1, 2009.