Current through September 24, 2024
(1) Policy Statement. The lack of
sophistication on the part of many members of the public concerning dental
services, the importance of the interests affected by the choice of a dentist
and the foreseeable consequences of unrestricted advertising by dentists, which
is recognized to pose special possibilities for deception, require that special
care be taken by dentists to avoid misleading the public. The dentist must be
mindful that the benefits of advertising depend upon its reliability and
accuracy. Since advertising by dentists 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) Advertisement. Informational
communication to the public in any manner designed to attract public attention
to the practice of a dentist who is licensed to practice dentistry in
Tennessee.
(b) Licensee. Any person
holding a license to practice dentistry in the State of Tennessee. Where
applicable this shall include dental partnerships and/or
corporations.
(c) Material Fact.
Any fact which an ordinary reasonable and prudent person would need to know or
rely upon in making an informed decision concerning the choice of dental
practitioners to serve his or her particular dental needs.
(d) Bait and Switch Advertising. An alluring
but insincere offer to sell a product or service which the advertiser in truth
does not intend or want to sell or provide. Its purpose is to switch consumers
from buying or receiving the advertised merchandise or services, in order to
sell or provide something else, usually at a higher fee or on a basis more
advantageous to the advertiser.
(e)
Discounted Fee. Shall mean a fee offered or charged by a person or organization
for any dental product or service that is less than the fee the person or
organization usually offers or charges for the product or service. Products or
services expressly offered free of charge shall not be deemed to be offered at
a ''discounted fee''.
(3) Advertising Dental Fees and Services
(a) Fixed Fees. Fixed fees may be advertised
for any service.
1. It is presumed unless
otherwise stated in the advertisement that a fixed fee for a service shall
include the cost of all professional recognized components within generally
accepted standards that are required to complete the service.
(b) Ranges of Fees. A range of
fees may be advertised for services and the advertisement must disclose the
factors used in determining the actual fee, necessary to prevent deception of
the public.
(c) Discount Fees.
Discount fees may be advertised if:
1. The
discount fee is in fact lower than the licensee's customary or usual fee
charged for the service; and
2. The
licensee provides the same quality and components of service and material at
the discounted fee that are normally provided at the regular nondiscounted fee
for that service.
(d)
Related Services and Additional Fees. Related services which may be required in
conjunction with the advertised service for which additional fees will be
charged must be identified as such in any advertisement.
(e) Time Period of Advertised Fees.
Advertised fees shall be honored for those seeking the advertised services
during the entire time period stated in the advertisement whether or not the
services are actually rendered or completed within that time.
1. If no time period is stated in the
advertisement of fees, the advertised fee shall be honored for thirty (30) days
from the last date of publication or until the next scheduled publication
whichever is later whether or not the services are actually rendered or
completed within that time.
(4) Advertising Content. The following acts
or omissions in the context of advertisement by any licensee shall constitute
unethical and unprofessional conduct, and subject the licensee to disciplinary
action pursuant to T.C.A. §
63-5-124(a)(18).
(a) Claims that the services performed,
personnel employed, 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 is better than another when superiority of
services, personnel, materials or equipment cannot be substantiated.
(b) The misleading use of an unearned or
non-health degree in any advertisement.
(c) Promotion of a professional service which
the licensee knows or should know is beyond the licensee's ability to
perform.
(d) Techniques of
communication which intimidate, exert undue pressure or undue influence over a
prospective patient.
(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 competence of a service or treatment offered by a
licensee that is not reasonably verifiable.
(g) Utilization of any statistical data or
other information based on past performances for predication of future
services, which creates an unjustified expectation about results that the
licensee can achieve.
(h) The
communication of personal identifiable facts, data, or information about a
patient without first obtaining patient 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) Statements concerning the benefits or
other attributes of dental procedures or products that involve significant
risks without including:
1. A realistic
assessment of the safety and efficiency of those procedures or products;
and
2. The availability of
alternatives; and
3. Where
necessary to avoid deception, descriptions or assessment of the benefits or
other attributes of those alternatives.
(l) Any communication which creates an
unjustified expectation concerning the potential results of any dental
treatment.
(m) Failure to comply
with the rules governing advertisement of dental fees and services, specialty
advertisement and advertising records.
(n) The use of ''bait and switch''
advertisements. Where the circumstances indicate ''bait and switch''
advertising, the Board may require the licensee to furnish data or other
evidence pertaining to those sales at the advertised fee as well as other
sales.
(o) Misrepresentation of a
licensee's credentials, training, experience or ability.
(p) Failure to include the corporation,
partnership or individual licensee's name and address and telephone number in
any advertisement. Any dental corporation, partnership or association which
advertises by use of a trade name or otherwise fails to list all licensees
practicing at a particular location shall:
1.
Upon request provide a list of all licensees at that location; and
2. Maintain and conspicuously display at the
licensee's office, a directory listing all licensees practicing at that
location.
(q) Failure to
disclose the fact of giving compensation or anything of value to representative
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.
(r) After
thirty (30) days, the use of the name of any licensee 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 dentistry in association with one or more of the present occupants if
the status of the former associate is disclosed in any advertisement or
sign).
(s) Stating or implying that
a certain licensee provides all services when any such services are performed
by another licensee.
(t) 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 patient in
connection with the performance of professional services.
(5) Specialty Advertising
(a) A licensee may not advertise using the
terms, specialist, specialty, specializing or practice limited to unless:
1. The licensee has obtained a certification
from the Board pursuant to T.C.A. §
63-5-112 and rules
promulgated pursuant thereto, and
2. The branch of dentistry so advertising is
listed as a specialty branch of dentistry in T.C.A. §
63-5-112 or rules
promulgated pursuant thereto.
(b) A licensee who possesses a verifiable
combination of education and experience is not prohibited from including in his
practice one or more specialty branches of dentistry. However, any
advertisement of such practice shall:
1. Not
use the terms specialty, specializing, specialist or practice limited to;
and
2. Contain the statement ''the
services are being performed or provided by a general dentist'', and such
statement must appear or be expressed in the advertisement as conspicuously as
the branch of dentistry advertised.
(c) Specific Areas of Practice -
Notwithstanding Rule 0460-02-.10(4)(o), any licensee who advertises credentials
in a branch of dentistry other than those enumerated in
T.C.A. §
63-5-112 or as recognized
by Rule by the Board, who has been granted credentialed status to include the
terms "associate fellow", "fellow" or "diplomate" by a bona fide national
organization which is not recognized as a certifying Board by the American
Dental Association or the Board of Dentistry, but grants "associate fellow",
"fellow" or "diplomate" status based on the dentist's postgraduate education,
training, experience, and an oral and written examination predicated upon valid
and reliable principles, may utilize one of the following terms: "associate
fellow", "fellow" or "diplomate" in an advertisement and refer to the area of
dental practice in which the credential is obtained if the same is accompanied
by the following disclaimer appearing as conspicuously as the credential
advertised:
"This area of practice is not recognized as a specialty by the
Tennessee Board of Dentistry."
(d) The term "Board Certified" may not be
used in any advertisement unless associated with a recognized specialty
enumerated in T. C. A.
§
63-5-112 certified by the
American Dental Association or the Board of Dentistry.
(6) Advertising Records and Responsibility
(a) Each licensee 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 professional employees acting as an
agent of such or entity.
(b) Any
and all advertisement are presumed to have been approved by the licensee 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 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 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
communication.
(7) Use
of Titles - Any person who possesses a valid, current and active license issued
by the Board that has not been suspended or revoked has the right to use the
titles "Dentist," "Doctor of Dental Surgery," "D.D.S.," "Doctor of Dental
Medicine," or "D.M.D." and to practice dentistry, as defined in T.C.A.
§§
63-5-108. Any person licensed by
the Board to whom this rule applies must use one of the titles authorized by
this rule in every "advertisement" [as that term is defined in rule
0460-02-.10(2) (a) ] he or she publishes. The failure to do so will constitute
an omission of a material fact which makes the advertisement misleading and
deceptive and subjects the dentist to disciplinary action pursuant to T.C.A.
§
63-5-124(a) (1), (a) (3), and (a)
(19).
(8) Severability. It is hereby declared that
the sections, clauses, sentences and part of these rules are severable, are not
matters of mutual essential inducement, and any of them shall be exscinded 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,
63-1-145, 63-5-105, 63-5-108,
63-5-112, 63-5-11, and 63-5-124.
