Corporate Or Business Names And Advertising

(1) Policy Statement. The lack of sophistication on the part of many members of the public concerning eye health and vision services, the importance of the interests affected by the choice of an optometrist and the foreseeable consequences of unrestricted advertising by optometrists, require that special care be taken by optometrists to avoid misleading the public. The optometrist must be mindful that the benefits of advertising depend upon its reliability and accuracy. Since advertising by optometrists is calculated and not spontaneous, reasonable regulation designed to foster compliance with appropriate standards serves the public interest without impending the flow of useful, meaningful, and relevant information to the public. (2) Definitions. (a) Advertisement. “Advertisement” and “advertising” shall mean any form of public communication with the intent of furthering the purpose, either directly or indirectly, or of selling professional services or ophthalmic goods, or offering to perform professional services, or inducing members of the public to enter into any obligation relating to such professional services. (b) Licensee. Any person holding a license to practice optometry in the State of Tennessee. Where applicable this shall include partnerships and/or corporations. (c) Material Fact. Any fact that an ordinary reasonable and prudent person would need to know or rely upon when making an informed decision concerning the choice of practitioners to serve their particular eye health and vision care 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 merchandise, in order to sell something usually at a higher fee or on a basis more advantageous to the advertiser. (e) Discounted Fee. A fee offered or charged by a person or organization for any eye health and vision care 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.” (f) Patient Encounter. The rendering of a documented optometrist’s opinion concerning evaluation, diagnosis, and/or treatment of a patient whether the optometrist is physically present in the same room, in a remote location within the state, or across state lines, pursuant to Rule 1045-02-.18. GENERAL RULES GOVERNING THE PRACTICE OF OPTOMETRY CHAPTER 1045-02 1. Vision Care Encounter. Patient presents with a chief complaint for the measurement of the vision system, by which the optometrist employs any means approved by the United States Food and Drug Administration or related agency, including the use or furnishing of any self-testing device, the use of any computerized or automatic refracting device, including applications designed to be used on a computer or video conferencing via an internet device either in- person or in remote locations. The encounter results in the determination of whether prescribing ophthalmic correction is needed to remedy or relieve defects of vision performance by means including but not limited to spectacle eyeglasses, contact lenses for orthotic, prosthetic, therapeutic, or cosmetic purposes, prisms, devices, and the employment of vision therapy or orthoptics for the aid thereof, and low vision rehabilitation. 2. Eye Health Care Encounter. Patient presents with a chief complaint related to eye health issue(s) that affect the ocular or systemic health and require an encounter for testing, diagnosing, treating, and managing conditions rational to the health and preservation of the human eye and related structures by employment of any means approved by the United States Food and Drug Administration or related agency, including the use or prescription of any self- testing, self-administered treatment or drug delivery devices, the use of any computerized or automatic devices, including applications designed to be used on a computer or video conferencing via an internet device either in-person or in remote locations. (3) Advertising 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 professionally recognized components within generally accepted standards that are required to complete the service. 2. If an optometrist advertises an examination fee or includes an examination as a service provided in an advertised fixed fee, the examination findings shall include all pertinent tests and observations necessary to satisfy the standard of care. The following shall constitute the professionally recognized components to be included in the examination provided for the advertised fee and before the prescription requested is issued: (i) Spectacles: (I) Patient’s case history; (II) Visual acuity including best corrected acuity and unaided; (III) Pupillary examinations; (IV) Extra ocular muscle assessment; (V) Visual field assessment; (VI) Tonometry; (VII) Examinations of external ocular structures and adjacent structures; GENERAL RULES GOVERNING THE PRACTICE OF OPTOMETRY CHAPTER 1045-02 (VIII) Examination of internal ocular structures; (IX) Objective and subjective refractions – The professionally recognized minimum components as recognized by the Tennessee Board of Optometry, does not permit issuing a spectacle or contact lens prescription based solely on objective refractive data or information generated by an automated testing device such as an autorefractor or digital application, to establish a diagnosis or to establish refractive error. Likewise, issuing a prescription based solely on a patient’s responses to a written, online questionnaire, or digital application does not meet the minimal competency and practice components; (X) Other tests and procedures that may be indicated by case history or objective signs and symptoms discovered during the vision examination; (XI) Diagnosis, treatment plan and patient education; (XII) These rules shall not be construed as prohibiting an optometrist from deferring non-emergency ocular medical testing at a vision care encounter until a timely eye health care encounter can be scheduled with the optometrist or other qualified optometrist, ophthalmologist, or health care professional for such eye health testing to be performed. (ii) Contact Lenses: (I) All of the components required for spectacles prescriptions; and (II) Measurement of cornea curvatures; and (III) Biomicroscopic evaluation of lid health, tear film integrity and corneal integrity; and (IV) Application of known diagnostic lenses to each eye to include evaluation of acuity, over refraction and biomicroscopic evaluation of lens fit; and (V) Adequate patient training in lens care, solutions, application and removal along with proper wearing schedule, warning signs, and recall intervals; and (VI) Follow-up visits as determined necessary in the judgment of the optometrist to evaluate the health of the anterior segment, acuity, and lenses. (b) If because of the patient’s age or physical limitations, one or more of the procedures specified herein, or any part thereof, cannot be performed, or if the procedures, or any part thereof, are to be performed by reason of exemption from this rule, the reason or exemption shall be noted on the patient’s record. (c) When a patient presents to an optometrist with a chief complaint consistent with an eye health care encounter, the performance of the minimum procedures set forth in (3)(a)2. above, shall only include patient’s case history; visual acuity; examinations of external ocular structures and adjacent structures; examination of internal ocular structures and GENERAL RULES GOVERNING THE PRACTICE OF OPTOMETRY CHAPTER 1045-02 other tests and procedures that may be indicated by case history or objective signs and symptoms discovered during the examination and diagnosis, treatment plan and patient education. (d) The minimum procedures set forth in (2)(f)2. above, shall not be required when an optometrist performs public service visual screenings or visual screenings for governmental agencies and each recipient of such screening is clearly informed in writing of the following: 1. The limitations of the screening; 2. The screening is not representative of or a substitute for a comprehensive eye health and vision examination; and 3. The screening will not result in a prescription for visual correction. (e) Range of Fees. A range of fees may be advertised for all services except routine vision care encounters and the advertisement must disclose the factors used in determining the actual fee, necessary to prevent deception of the public. Fees may vary dependent upon the nature of the services provided, vision benefit plan and/or insurance coverage as held by the consumer. (f) 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. (g) 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. If they are not, the service shall be provided at the fee quoted in the advertisement. (h) 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. (4) Advertising Content. The following acts or omissions in the context of advertisement by any licensee shall subject the license to disciplinary action pursuant to T.C.A. §§ 63-8-120(5), 63- 8-120(12), 63-8-120(17) and 63-8-113(d). (a) Claims that the services performed, personnel employed, materials or office technology 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. GENERAL RULES GOVERNING THE PRACTICE OF OPTOMETRY CHAPTER 1045-02 (d) Techniques of communication which intimidate, exert undue pressure or undue influence over a prospective patient. (e) The communication of personally identifiable facts, data, or information about a patient without first obtaining patient consent. (f) The knowing suppression, omission or concealment of any material fact or law without which the advertisement would be deceptive or misleading. (g) Statements concerning the benefits or other attributes of 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. (h) The use of “bait and switch” advertisements. Where the circumstances indicate “bait and switch” advertising, the Board may require the licensee to furnish to the Board or its designee data or other evidence pertaining to those sales at the advertised fee as well as other sales. (i) Failure to include the corporation, partnership or individual licensee’s name and contact information 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, upon request, provide a list of all licensees practicing at that location. (j) Failure to disclose any compensated endorsement or promotion event. (k) 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. (l) An ophthalmic lens or contact lens may be guaranteed against defects but advertisements must state results of individual applications and outcomes may vary. (m) Defaming other optometrists. (5) Routine Optometric Service. Any eye health or vision care service may be considered routine if it has the following: (a) It is performed frequently in the optometrist’s practice. (b) It is usually provided at a set fee to substantially all patients receiving the service. (c) It is provided with little or no variance in technique or materials. (d) It includes all professionally recognized components within generally accepted standards. (6) Advertising Responsibility. GENERAL RULES GOVERNING THE PRACTICE OF OPTOMETRY CHAPTER 1045-02 (a) Each licensee 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) A recording of every advertisement communicating fees for services or products shall be retained by the licensee for a period of two (2) years from the last date of publication and shall be made available for review upon request by the Board or its designee. (7) Corporate or Business Names. (a) Requests for approval of corporate or business names must be submitted to the Board’s administrative office. Prior to using a corporate name in advertising, the name must be approved by the Board. (b) Such requests will be maintained in the administrative office until the next scheduled Board meeting at which time that will be presented to and reviewed by the Board. If the Board, in its discretion, decides that the corporate name is appropriate and in compliance with all statutes and rules, the corporate name may be approved. (c) Applicants will be notified of approval or denial by letter signed by the Board’s designee.