TITLE 16 OCCUPATIONAL AND PROFESSIONAL
LICENSING
CHAPTER 4 CHIROPRACTIC PRACTITIONERS
PART 20 ADVERTISING
16.4.20.1 ISSUING AGENCY: New Mexico Chiropractic Board, PO Box 25101,
Santa Fe, New Mexico 87504.
[16.4.20.1 NMAC - Rp 16.4.20.1 NMAC, 8/10/2019]
16.4.20.2 SCOPE: All licensed chiropractic physicians.
[16.4.20.2 NMAC - Rp 16.4.20.2 NMAC, 8/10/2019]
16.4.20.3 STATUTORY AUTHORITY: These rules of practice and procedure govern
the practice of chiropractic in New Mexico and are promulgated pursuant to and
in accordance with the Chiropractic Physician Practice Act, Sections 61-4-2,
61-4-4, 61-4-6, 61-4-12 and 61-4-13 NMSA 1978.
[16.4.20.3 NMAC - Rp 16.4.20.3 NMAC, 8/10/2019]
16.4.20.4 DURATION: Permanent.
[16.4.20.4 NMAC - Rp 16.4.20.4 NMAC, 8/10/2019]
16.4.20.5 EFFECTIVE DATE: August 10, 2019, unless a later date is cited
at the end of a section.
[16.4.20.5 NMAC - Rp 16.4.20.5 NMAC, 8/10/2019]
16.4.20.6 OBJECTIVE: To establish guidelines for advertising which
must be followed by all licensed chiropractic physicians and non-licensed chiropractic
practice owners.
[16.4.20.6 NMAC - Rp 16.4.20.6 NMAC, 8/10/2019]
16.4.20.7 DEFINITIONS: Refer to 16.4.1.7 NMAC.
[16.4.20.7 NMAC - Rp 16.4.20.7 NMAC, 8/10/2019]
16.4.20.8 STATEMENT OF POLICY: It is the
policy of the board that advertising by licensed practitioners of chiropractic
should be regulated in order to fulfill the duty of the state of New Mexico to
protect the health, safety and welfare of its residents, while not abridging
any rights guaranteed to the practitioners or to the public by the Constitution
of the United States and the Constitution of the state of New Mexico as
construed by the United States supreme court and the New Mexico supreme court. To that end, the board permits the dissemination
of legitimate information to the public concerning the science of chiropractic
and individual practitioners thereof. Such
dissemination of information must be done in accordance with this rule which is
designed to reasonably facilitate the flow of accurate information and prevent
fraudulent, false, deceptive, misleading or confusing advertising. Advertising
not contrary to the prohibitions in this rule shall be deemed an appropriate
means of informing the public of the availability of professional services.
[16.4.20.8 NMAC - Rp 16.4.20.8 NMAC, 8/10/2019]
16.4.20.9 CERTAIN ADVERTISING PROHIBITED:
A. Any chiropractor who disseminates or causes to be
disseminated or allows to be disseminated any advertising which is in any way
fraudulent, false, deceptive, misleading or confusing, shall be deemed to be in
violation of the Chiropractic Physician Practice Act.
B. Fraudulent, false, deceptive,
misleading or confusing advertising includes, but is not limited, to:
(1) advertising which contains a misrepresentation
of any fact or facts;
(2) advertising which, because of its
contents or the context in which it is presented, fails to disclose relevant or
material facts or makes only partial disclosure of relevant or material facts;
(3) advertising which makes claims of, or
conveys the impression of superior professional qualifications which cannot be
substantiated by the chiropractor;
(4) advertising which contains distorted
claims or statements about any individual chiropractor, chiropractic group or
chiropractic office, clinic or center;
(5) advertising which creates unjustified
expectations of beneficial treatment or successful cures;
(6) advertising which guarantees the
results of any service, painless treatment, or which promises to perform any
procedure painlessly;
(7) advertising which in any way appeals
to fears, ignorance or anxieties regarding a persons state of health or
physical or mental well-being;
(8) advertising which in any way
intimidates or exerts undue pressure on the recipient;
(9) advertising which fails to
conspicuously identify the chiropractor or chiropractors referred to in the
advertising as practitioners of chiropractic by use of the term “chiropractor”,
“chiropractors”, “chiropractic”, “chiropractic physician”, “chiropractic
physicians”, “doctor of chiropractic”, or “doctors of chiropractic”;
(10) advertising which fails to be
conspicuously identified as “chiropractic” advertising;
(11) advertising which fails to
conspicuously identify the chiropractic practice, office, clinic or center
being advertised by a name which includes the term “chiropractor”,
“chiropractors”, “chiropractic”, “chiropractic physician”, “chiropractic
physicians”, “doctor of chiropractic” or “doctors of chiropractic”;
(12) advertising which invades the field of
practice of other licensed healthcare practitioners when the chiropractor is
not allowed by rule or license to practice such profession;
(13) advertising which appears in a
classified directory or listing, or otherwise under a heading which, when
considered alone or together with the advertisement, does not accurately convey
the professional status of the chiropractor or the professional services being
advertised;
(14) advertising which concerns a
transaction that is in itself illegal;
(15) advertising which employs testimonials
which, by themselves or when taken together with the remainder of the
advertisement intimidate, exert undue pressure on, or otherwise improperly
influence the recipient.
C. Advertising which offers gratuitous
services or discounts in connection with professional services; provided,
however, that advertising may offer gratuitous services or discounts if:
(1) such advertising clearly and
conspicuously states whether or not additional charges may be incurred for
related services which may be needed or appropriate in individual cases, and
the possible range of such additional charges if such charges may be incurred;
(2) such advertising is not otherwise
false, fraudulent, deceptive, misleading or confusing;
(3) such advertising offering a “spinal
examination”, “examination” or “scoliosis examination” or using any other
similar phrase includes, at a minimum, the following tests or procedures: blood
pressure, weight, height, reflexes, pulse, range of motion and orthopedic tests
appropriate to the history; and
(4) such advertising offering “an
examination” or using any other similar phrase includes the taking of a
detailed problem focused history of the patient as it relates to the presenting
complaints, and an approriate neurological, orthopedic, and chiropractic
physical examination including, where professionally indicated, the taking,
developing and interpretation of x-rays and the performance and interpretation
of laboratory or other specialized tests when necessary to establish a
diagnosis; such x-rays and laboratory and other specialized tests must
constitute a diagnostically complete study.
D. Advertisements may quote fixed
prices for specific routine services if such advertising clearly and
conspicuously states whether or not additional charges may be incurred for
related services and the possible range of such additional charges if such
charges may be incurred. A routine service is one which is not so unique that a
fixed rate cannot meaningfully be established.
E. Chiropractors, their agents or any
representatives who engage in telemarketing are required to inform the parties
they call at the beginning of the call:
(1) who they are (caller’s name);
(2) who they represent (clinic/doctor);
and
(3) chiropractors, their agents or
representatives engaging in telemarketing, either directly or through others,
shall keep a voice recorded log of all phone call conversations and a written
log to include date, telephone number,
and the name of every person called; all such chiropractors, their agents or
representatives shall keep such logs for a period of three years from the date
of the telemarketing.
F. No chiropractor engaging in, or
authorizing another to engage in, telemarketing of prospective patients shall
misrepresent to the person called any association with an insurance company,
other licensed health care provider or another chiropractor or group of
chiropractors, nor shall such solicitor promise successful chiropractic
treatment of injuries, or make any other misrepresentation of whatever kind for
the purpose of selling chiropractic services.
G. No chiropractor engaging in, or
authorizing another to engage in, telemarketing of prospective patients shall
engage in such practices during hours prohibited by applicable municipal
ordinance or state law, or in the absence of either, then other than between
the hours 9 a.m. and 8 p.m. local time.
H. No chiropractor engaging in, or
authorizing another to engage in, telemarketing of prospective patients shall
make more than one telephone call to any telephone number unless requested by
the recipient to call again.
I. No chiropractor shall advertise
directly or indirectly, through any device or artifice, that the advertising
chiropractor will not collect from any prospective patient, that patient’s
insurance deductible or co-payment obligations arising by virtue of any medical
insurance policy provided for the payment, in whole or in part, of any
chiropractor’s charge. The words free initial consultation must be explicitly
explained what a consultation consist of and at exactly what point charges
begin to accrue with clear delineation between a free consultation and an exam
with treatment for which services will be charged. At no time can any
representation in regards to payment for services be misleading to the consumer
or patient and it must be stated up front that if the patient decides to accept
the care that they will be charged for all services and that payment will be
expected whether it be from the patient, third-party payor, insurance, or
medpay.
J. No applicant for licensure to
practice chiropractic, and no unlicensed practitioner, shall advertise
chiropractic services in this state in any way.
K. All advertisements by a chiropractor
must include the full name of the chiropractor as it appears on his or her
chiropractic license followed by the letters D.C. or the designation
“chiropractor”, “chiropractic physician” or “doctor of chiropractic”.
L. Any form of solicitation offered to
individuals whose identities are known through the use of any form of public
record, including but not limited to police reports, shall be reviewed and
approved by the board and re-approved annually. Unless specifically disapproved
by the committee designated by the board the copy submitted may be used for
patient solicitation. If approved or disapproved, that information shall be
communicated to the submitting doctor within 30 days of submission. The
submitting physician has the right to request a determination be made by the
full board at its next scheduled meeting. The board holds the right during each
renewal cycle to complete a random audit of all written materials, and
mandatory voice recordings of all phone conversations for a period up to three
years following any telemarketing procedures from public record.
M. Any direct, individual contact by a
licensee or the agent of a licensee with prospective patients through the use
of public records, including but not limited to police or accident reports is
prohibited.
N. The script for any telemarketing
advertising shall be submitted to the board for approval and must be
resubmitted yearly for ongoing use by any licensee or their agent.
[16.4.20.9 NMAC - Rp 16.4.20.9 NMAC, 8/10/2019]
HISTORY
OF 16.4.20 NMAC: [RESERVED]
History
of Repealed Material: 16.4.20 NMAC,
Advertising filed 7/20/2012, Repealed effective 8/10/2019.
Other
History: 16.4.20 NMAC,
Advertising filed 7/20/2012 was replaced by 16.4.20 NMAC, Advertising effective
8/10/2019.