Lindsay Wagahoff, MA | Aug 19, 2020 | 0
How to Legally Claim Specialties in Advertising
The Illinois Medical Practice Act permits physicians to advertise “information pertaining to the person’s area of specialization, including appropriate board certification or limitation of professional practice.” The Illinois Department of Financial and Professional Regulation (IDFPR) interprets this provision to allow advertising of specialty certifications issued by the American Chiropractic Association, i.e., the ACA Diplomate designations, and, possibly, other established certifications that require testing and credentials and that do not mislead the public.
The Illinois Supreme Court has provided guidance in an opinion involving a chiropractic physician whose license was disciplined for using misleading specialty advertising.
In that case, the doctor published a series of newspaper advertisements that asserted that he was one of only two “Certified Brain Stem Specialists” in his area. The Department of Professional Regulation reprimanded and fined the doctor’s license based on its finding that “[t]here is no appropriate board certification as a Certified Brain Stem Specialist in Chiropractic medicine,” and that the advertisement constituted false, fraudulent, deceptive or misleading material. The chiropractic physician appealed, challenging the Medical Practice Act’s specialty advertising restriction as unconstitutionally vague.
Although the Illinois Supreme Court ultimately voided the discipline due to an unrelated procedural error, the court stated that the rule allowing the advertising of “appropriate board certification” is clear enough that physicians have a generally accepted understanding of its meaning and can comply with it. The court said that “board certified” is commonly understood to mean that the physician has passed an examination administered by a medical specialty board, has fulfilled all requirements of that board for certification as a specialist, and has been certified by the board as a specialist.
The court noted that the Medical Practice Act governs different types of physicians engaged in a spectrum of specialties whose standards are administered by a variety of different medical boards. This variety would make it impossible to name every possible board certification and could also prove unduly restrictive, preventing doctors in new or emerging specialties from advertising legitimate board certifications that had not yet made it onto the officially prescribed list. The court also note that no evidence indicated the rule is difficult to understand or follow. The physician in this case testified that he learned his “certified brain stem specialist” skills in chiropractic school, not in a program of advanced training; thus, it should have been easy for him to understand that he was not qualified to advertise himself as a specialist.
Given the lack of a specific list of specialty certifications that are acceptable to advertise, how can a physician know what is allowed? As for any advertising, the more demonstrably truthful and non-misleading the information, the less likely it is that the doctor will run afoul of the law and the IDFPR. The IDFPR permits advertisement of ACA Diplomate designations, because they are understood to mean the physician has taken advanced training and testing in a recognized specialty. The advertising of other specialty certifications will depend on the language used, whether it accurately implies advanced training, whether it has generally accepted and clear meaning that the public can readily understand, and how easily it can be proven to be true. This test applies to all physician advertising, including specialty certifications.
For example, the law would not allow a physician to imply he or she had advanced training by using the name of an unknown organization whose only requirement was a membership fee (i.e., “John Jones, D.C., A.B. C.D.” However, if the physician clearly indicated in the ad that the A.B.C.D. is the Association of British Chiropractic Doctors, it might be permitted as long as no other verbiage implied advanced training. In the event of an IDFPR investigation, the burden will be on the physician to prove the acronym was not used in a way to mislead the public by creating the appearance of enhanced credentials.
Another common violation is for a chiropractic physician to advertise that he or she is a “certified chiropractic physician” based on graduation from a regular four-year chiropractic college and licensure. Regulators deem the term “certified” to be misleading in that context, because it implies that the doctor completed additional training beyond chiropractic school. Therefore, chiropractic physicians may not use this term if they are relying solely on the fact that they are licensed by the state.
Avoiding the use of misleading wordings and “specialty” acronyms will make it more likely that you are conforming with the law and less likely to be invited to an investigatory interview with the IDFPR. However, be aware that even careful review cannot guarantee that the Department will not have a different opinion and challenge your advertisement, and defending your right to use it may require you to retain an attorney to plead your case to the Department and beyond, even if you are ultimately successful.