Current through September 24, 2024
(1) Policy Statement. The lack of
sophistication on the part of many of the public concerning nursing services,
the importance of the interests affected by the choice of a licensed practical
nurse and the foreseeable consequences of unrestricted advertising by nurses
which is recognized to pose special possibilities for deception, require that
special care be taken by nurses to avoid misleading the public. The licensed
practical nurse must be mindful that the benefits of advertising depend upon
its reliability and accuracy. Since advertising by nurses 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 licensed practical nurse who is licensed to practice in
Tennessee.
(b) Licensee - Any
person holding a license to practice as a licensed practical nurse in the State
of Tennessee. Where applicable this shall include partnerships and/or
corporations.
(c) 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.
(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. Its purpose is to switch consumers from buying
the advertised service or merchandise, in order to sell something else, usually
for 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 for a 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 Fees and Services
(a) Fixed Fees. Fixed fees may be advertised
for any service. 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) Range 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, non-discounted fee for that service.
(d) Related Services and
Additional Fees. Related services which may be required in conjunction with the
advertised services 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. 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
unprofessional conduct, and subject the licensee to disciplinary action
pursuant to Rule 1000-02-.13:
(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 professional services which
the licensee knows or should know are beyond the licensee'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 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 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 nursing 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 treatment.
(m) Failure to comply with the rules
governing advertisement of fees and services, or 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, address, and telephone number in any
advertisement. Any 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 practicing 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
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.
(r)
After thirty (30) days of the licensee's departure, 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 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) 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 firm or entity.
(b)
Any and all advertisements 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.
(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,
63-7-115, and 63-7-207.
