Current through April 3, 2024
(1) Policy Statement. The lack of
sophistication on the part of many of the public concerning professional
counseling services, the importance of the interests affected by the choice of
a professional counselor and the foreseeable consequences of unrestricted
advertising by professional counselors which is recognized to pose special
possibilities for deception, require that special care be taken by professional
counselors to avoid misleading the public. The professional counselor must be
mindful that the benefits of advertising depend upon its reliability and
accuracy. Since advertising by professional counselors is calculated and not
spontaneous, reasonable regulation designed to foster compliance with
appropriate standards serves the public interest without impeding the flow of
useful, meaningful, and relevant information to the public.
(2) Definitions
(a) Advertise - See Rule
0450-01-.01(2).
(b) Certificate
Holder - Any person holding a certificate to practice as a Certified
Professional Counselor. Where applicable this shall include partnerships and/or
corporations.
(c) Licensee - Any
person holding a license to practice as a Licensed Professional Counselor.
Where applicable this shall include partnerships and/or corporations.
(d) Material Fact - Any fact which an
ordinary reasonable and prudent person would need to know or rely upon in order
to make an informed decision concerning the choice of practitioners to serve
his or her particular needs.
(3) Advertising Content. The following acts
or omissions in the context of advertisement by any licensee or certificate
holder shall constitute unethical conduct, and subject the licensee or
certificate holder to disciplinary action pursuant to T.C.A. §
63-22-110:
(a) Claims that the services performed,
personnel employed, or materials or office equipment used are professionally
superior to that which is ordinarily performed, employed, or used, or that
convey the message that one licensee or certificate holder is better than
another when superiority of services, personnel, materials or equipment cannot
be substantiated.
(b) The
misleading use of an unearned degree.
(c) Promotion of professional services which
the licensee or certificate holder knows or should know are beyond the
licensee's or certificate holder's ability to perform.
(d) Techniques of communication which
intimidate, exert undue pressure or undue influence over a prospective
client.
(e) Any appeals to an
individual's anxiety in an excessive or unfair manner.
(f) The use of any personal testimonial
attesting to a quality or competency of a service or treatment offered by a
licensee or certificate holder that is not reasonably verifiable.
(g) Utilization of any statistical data or
other information based on past performances for prediction of future services,
which creates an unjustified expectation about results that the licensee or
certificate holder can achieve.
(h)
The communication of personal identifiable facts, data, or information about a
client without first obtaining client consent.
(i) Any misrepresentation of a material
fact.
(j) The knowing suppression,
omission or concealment of any material fact or law without which the
advertisement would be deceptive or misleading.
(k) Misrepresentation of credentials,
training, experience, or ability.
(l) Failure to include the corporation,
partnership or individual name, address, and telephone number of licensees and
certificate holders in any advertisement. Any corporation, partnership or
association which advertises by use of a trade name or otherwise fails to list
all licensees and certificate holders practicing at a particular location
shall:
1. Upon request provide a list of all
licensees and certificate holders practicing at that location; and
2. Maintain and conspicuously display a
directory listing all licensees and certificate holders practicing at that
location.
(m) Failure 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 (for example, newspaper
article) unless the nature, format or medium of such advertisement make the
fact of compensation apparent.
(n)
After thirty (30) days of the licensee's or certificate holder's departure, the
use of the name of any licensee or certificate holder formerly practicing at or
associated with any advertised location or on office signs or buildings. This
rule shall not apply in the case of a retired or deceased former associate who
practiced in association with one or more of the present occupants if the
status of the former associate is disclosed in any advertisement or
sign.
(o) Stating or implying that
a certain licensee or certificate holder provides all services when any such
services are performed by another licensee.
(p) Directly or indirectly offering, giving,
receiving, or agreeing to receive any fee or other consideration to or from a
third party for the referral of a client in connection with the performance of
professional services.
(q) Making
false, deceptive, misleading or fraudulent statements regarding fees.
(4) Advertising Records and
Responsibility
(a) Each licensee or
certificate holder who is a principal partner, or officer of a firm or entity
identified in any advertisement, is jointly and severally responsible for the
form and content of any advertisement. This provision shall also include any
licensed or certified professional employees acting as an agent of such firm or
entity.
(b) Any and all
advertisements are presumed to have been approved by the licensee or
certificate holder named therein.
(c) 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
shall be retained by the licensee or certificate holder for a period of two (2)
years from the last date of broadcast or publication and be made available for
review upon request by the Board or its designee.
(d) At the time any type of advertisement is
placed, the licensee or certificate holder must possess and rely upon
information which, when produced, would substantiate the truthfulness of any
assertion, omission or representation of material fact set forth in the
advertisement or public information.
(5) Advertising Conduct
(a) Licensees or certificate holders who
engage others to create or place public statements that promote their
professional practice, products, or activities retain professional
responsibility for such statements.
(b) If licensees or certificate holders learn
of deceptive statements about their work made by others, licensees or
certificate holders must make reasonable efforts to correct such
statements.
(c) Licensees or
certificate holders shall not compensate employees of press, radio, television
or other communication media in return for publicity in a news item.
(d) A paid advertisement relating to the
licensee's or certificate holders' activities must be identified as such,
unless it is already apparent from the context.
(6) Severability. It is hereby declared that
the sections, clauses, sentences and parts of these rules are severable, are
not matters of mutual essential inducement, and any of them shall be rescinded
if these rules would otherwise be unconstitutional or ineffective. If any one
or more sections, clauses, sentences or parts shall for any reason be
questioned in court, and shall be adjudged unconstitutional or invalid, such
judgment shall not affect, impair or invalidate the remaining provisions
thereof, but shall be confined in its operation to the specific provision or
provisions so held unconstitutional or invalid, and the inapplicability or
invalidity of any section, clause, sentence or part in any one or more
instances shall not be taken to affect or prejudice in any way its
applicability or validity in any other instance.
Authority: T.C.A. §§
4-5-202,
4-5-204,
63-1-145, 63-1-146, 63-22-102,
63-22-110, 63-22-117, and 6322-150.
