Notes from the Ad Hoc Committee on Advertising for the Texas Medical Board
Ad Hoc Committee Meeting on Advertising Rules convened at 1:01 PM
Dr. Crocker opened the meeting. Discussin of Rule 164.4
The rule lends itself to some confusion. The intent of the rule was to address advertising and not meant to have an impact on hospital credentialling or certification. They received lots of form letters both for and against the rule. All letters were given to Board members in preparation for this meeting.
ABMS, AOA Osteopathic, BOS, maxiofacial are the only certifications allowed in advertising. These Boards use ACGME model for resident physicians.
161.5A states physician is required to obtain certifiable and substantial training in the specialty.
The broader issue is that there is confusion in the public eye as to what constitues board certification
APBS –only recognized by Florida. They have been asked by legislature to rescind this rule.
Options today are: leave the rule, direct staff to go about drafting a different version as outlined by board members, then take through adoption process, or create a stakeholder group to look into other options, or require group to come before the board to get Board recognition. California currently does this last option.
Other states are dealing with this issue, as well.
They must look at the protected right of commercial speech.
The Federation will be looking at this issue and if we rule one way or the other, they may look towards Texas.
ACGME has six core criteria which are requirements, one of which is professionalism
Dr. Zeitler states that they have been charged with coming up with a rule that is clear to the public.
Robinson: Whenever you go about limiting speech, you need a reasoned justification for why you think it is necessary to protect the public. The limitation must be very clear as to how it protects the public. Always on safer ground when you can allow someone a way to express qualifications, rather than having a hard and fast rule. The more stringent it is, the harder it is to defend in the event of a lawsuit. Suggestion to allow advertising if the training program met standards of ACGME and then under B5, you will need to come before the Board to be recognized.
Crocker suggests utilizing the yardstick that has been in place for years by requiring certifiying Boards to rise to the level of ACGME standards.
1) Only restrict if misleading
2) Gov regulation is substantial
3) Allow expansion of protection under the regulation
4) Not more extensive than necessary
Most Boards including APBS, require recertification at some interval.
164.4B5 affords physicians have a reasonable outlet to express their training.
Mr. Webb questions what is meant by “subsantial” in the rule.
Staff would create a rule where A stays the same. B stays the same with the added ACGME equivalency standard. These boards would come before the TMB to get recognized.
Then develop another terminology to use in advertising when they do not meet 164.4A & B which could say something like” recognized by …”
Robinson suggests staff to draft language with A, B, C have alternative training and allow a different designation, D, under this you cannot say anything in advertising.
Turner motioned staff to put together language to present to stakeholder groups on the concept of A, and B presenting before the board their ACGME equivalency of training and that the Board would rule on being substantially equivalent to ACGME. Stakeholder group brings back to Ad Hoc committee. Also develop alternate recognition for those that fall in category B that do not rise to level in category A. Language to include, trained in or recognized by.
Motion carries
Meeting adjourned at 2:52