1. (a) A podiatric physician may advertise. A podiatric physician shall not, however, use or participate in the use of any publication, including advertisements, news stories, press releases, and periodical articles, that contains a false, fraudulent, misleading, deceptive, scientifically unsupported or generally unaccepted, or unfair statement or claim, or that are exaggerations or are untrue.

2. (b) A false, fraudulent, misleading, deceptive, scientifically unsupported or generally unaccepted, or unfair statement or claim includes but is not limited to, a statement or claim that:

   1. (1) contains a misrepresentation of fact, or claims as fact something that has not been generally accepted among the podiatric community or by the Board as having been proven or established as fact;
   2. (2) is likely to mislead or deceive or entice or persuade a reasonable person because it fails to make full disclosure of relevant facts whether regarding fees, modes of treatment, conditions or techniques of surgery, post-operative conditions such as degree of pain, length of time of recovery, mobility and strength during recovery, and the like;
   3. (3) is intended or likely to create in an ordinary reasonable person false or unjustified expectations of favorable results;
   4. (4) states or implies educational or professional attainments or licensing recognition not supported in fact;
   5. (5) states or implies that the podiatric physician has received formal recognition as a specialist, or has any specialized expertise if this is not the case;
   6. (6) contains any laudatory statement, or other statement or implication that the podiatric physician's services are of exceptional quality;
   7. (7) contains statistical data or information that reflects or is intended to reflect quality or degree of success of past performance, or prediction of future success;
   8. (8) represents that podiatric services can or will be completely performed for a stated fee amount when this is not the case, or makes representations with respect to fees that do not disclose all variables affecting the fees, or makes representations that might reasonable cause an ordinary prudent person to misunderstand or be deceived about the fee amount;
   9. (9) contains a testimonial;
   10. (10) represents that health care insurance deductibles or co-payments may be waived or are not applicable to health care services to be provided if the deductibles or co-payments are required;
   11. (11) represents that the benefits of a health benefit plan will be accepted as full payment when deductibles or co-payments are required.

3. (c) Information contained in a public communication by a podiatric physician may include, but is not limited to the following:

   1. (1) name, address, telephone numbers, office hours, and telephone-answering hours;
   2. (2) biographical and educational background;
   3. (3) professional memberships and attainments and certifications, subject, however, to the provisions of subsection (e) of this section;
   4. (4) description of services offered, subject, however to the provisions of subsection (f) of this section;
   5. (5) foreign language ability;
   6. (6) acceptable credit arrangements, subject, however, to the provisions of subsection (b)(2) and (8) of this section;
   7. (7) the limitation of practice to certain areas of podiatric medicine;
   8. (8) the opening or change in location of any office and change in personnel;
   9. (9) fees charged for the initial consultation, provided that if the time for the consultation is to be limited, any such limitation on the time shall be stated;
   10. (10) fixed fees for specific podiatric treatments and services, subject, however, to the provisions of subsection (b)(2) and (8) of this section; and
   11. (11) a statement that a schedule of fees or an estimate of fees to be charged for specific treatments or services will be available on request.
4. (d) All podiatric physicians shall retain recordings, transcripts, or copies of all public communications by date of publication for a period of at least two years after such communication was made.

5. (e) A podiatric physician may advertise or publish the name of any board of certification under which the podiatric physician has fully and validly become certified provided, however, that:

   1. (1) The full name of the certifying board is included in the publication; that is, no advertisement or publication may include the bare phrase "board certified", or the like;
   2. (2) It shall be the duty of each podiatric physician to determine before publication of any such advertisement or public communication whether the certifying board he wished to advertise is in fact approved or recognized by the Council on Podiatric Medical Education of the American Podiatric Medical Association. Except as provided by subsection (e)(3), podiatric physicians may not list in any type of advertisement or public communication any certifying board that is not approved or recognized by the Council on Podiatric Medical Education or the American Podiatric Medical Association.

   3. (3) Each certifying board that is not recognized by the Council of Podiatric Medical Education or the American Podiatric Medical Association must meet each of the requirements set forth in paragraphs (A) - (E) of this subsection:

      1. (A) the certifying board requires all podiatric physicians who are seeking certification to successfully pass a written or an oral examination or both, which tests the applicant's knowledge and skills in the specialty or subspecialty area of podiatric medicine. All or part of the examination may be delegated to a testing organization. All examinations require a psychometric evaluation for validation;
      2. (B) the certifying board has written proof of a determination by the Internal Revenue Service that the certifying board is tax exempt under the Internal Revenue Code pursuant to §501(c);
      3. (C) the certifying board has a permanent headquarters and staff;
      4. (D) the certifying board has at least 100 duly licensed certificants from at least one-third of the states; and
      5. (E) the certifying board requires all podiatric physicians who are seeking certification to have satisfactorily completed identifiable and substantial training in the specialty or subspecialty area of podiatric medicine in which the podiatric physician is seeking certification, and the certifying organization utilizes appropriate peer review. This identifiable training shall be deemed acceptable unless determined by the Texas State Board of Podiatric Medical Examiners to be inadequate in scope, content, and duration in that specialty or subspecialty area of podiatric medicine in order to protect the public health and safety.
6. (f) If a publication by or for a podiatric physician includes mention of a particular surgical technique or device, such as laser surgery, minimal incision surgery, laser bunion surgery or similar particular techniques or devices, the publication must also include a specific and true statement that reveals to an ordinary reasonable person the limits and scope and specific purpose of the technique so as not to mislead an ordinary reasonable person regarding the difficulty, pain or discomfort, length of time for surgery or recuperation, or possibility of complications.
7. (g) Within the advertisement section of any published or publicly distributed telephone directory, where the profession of podiatric medicine is a plainly visible rubric under which only licensed podiatric physicians appear in print, the rubric itself shall suffice to identify the practice of the licensee as a podiatric physician where the listing is an in-column advertisement; where the advertisement is a block advertisement, even if it falls under such a plain title §371.3 of this title (relating to Practitioner Identification) and §373.7 of this title (relating to Corporate Trade Names and Assumed Names) herein. It shall be the sole responsibility of the licensee to insure that advertisements and listings published in any telephone directory are accurate and conform to the rules set forth by the Board.

Source Note:The provisions of this §130.26 adopted to be effective July 5, 2006, 31 TexReg 5288; amended to be effective September 9, 2007, 32 TexReg 5699; transferred effective September 1, 2017, as published in the Texas Register August 18, 2017, 42 TexReg 4145.