By Pamela Miller, OD, FAAO, JD, FNAP
April 25, 2018
Letting your community know of the services you provide, and the products you sell, is essential to achieving profitability. But as you market your practice, there are important legal considerations.
Here are the key ways you should be careful when creating and distributing advertising on behalf of your practice. As with all legal matters, it is best to consult with your attorney and state optometric board before making any decisions.
Check Laws Before Offering Free Exams with Purchase
Encouraging patients into your chair by promising a free exam with the purchase of, say, two pairs of glasses, could be illegal in your state. Some states don’t allow the giveaway of products if the patient pays for an exam, or offering a free examination if the patient purchases their eyewear from your office.
You may need to stick with offering promotional deals on products, rather than medical services.
You May Not Be Allowed to Give Gifts for Referring
Some practices like to give gifts to patients for referring friends and family, but this is not legal in some states, such as California, where I practice.
Fortunately, there are easy things you can do instead. For instance, if you have a patient, who has referred many friends and family, you can send a thank-you note, emphasizing that you appreciate their support over the years. Then, around the holidays, you can send gifts, typically under $20 each, to these patients. Note that the card cannot say the reason they are getting the gift is because they referred. Instead, the card could offer a simple happy holiday message.
Don’t Advertise Lower Costs That Violate Insurance Company Contracts
If you have a trunk show, and offer to attendees that if they purchase a product that evening, or within a certain window of time, they will get a percentage off the usual price, you could run into a problem. You need to be careful that you are not advertising lower costs than what you have agreed to in your contracts with insurance panels.
Instead, you can stipulate that trunk show guests cannot make purchases at discounted prices using their insurance, that they can’t combine the discount with their vision benefit.
Avoid Bait-and-Switch Advertising
You never want to engage in false advertising, in which you incentivize a patient to visit your office, and then, when they get there, they find that the incentive is not available.
For example, it would be illegal to advertise “frames from $29,” but only have two of these frames in stock. When making such an offer, be sure to clearly stipulate these limitations in the ad. You could say, for instance, “limited to the first 50 purchasers.”
You also should clearly note any exclusions, such as “does not apply to insurance, or materials and services, covered by insurance.”
Be sure to also state limitations in the discount allowed by a promotion. For example, if you make an offer that patients purchasing both glasses and contact lenses will get 10 percent off their total purchase, you have to be consistent in delivering on it. If a patient racked up a $1,000 bill, then you have to be prepared to give them $100 off. If there is a limitation on the discount applying to purchases above a certain amount, then you have to state that. You could note in the advertising: “Discount of 10 percent off limited to purchases with a total cost of $300 or less.”
You also want to be specific about the type of product the discount applies to. For instance, you could state that the promotional pricing only applies to single-vision glasses, or to only polycarbonate lenses with anti-reflective treatments.
Disclose Possibility of Additional Charges
If you’re advertising a particular cost for your exams, then you need to state in the advertising the possibility of additional charges. For instance, you might ask the patient to undergo imaging with an out-of-pocket fee, or you might have to state that dilation requires an additional $20 charge. You need to be specific about what those additional charges might be.
If you’re advertising a contact lens exam fee, you would need to specify if the offer is for new or existing contact lenses patients, those with specialty lenses, such as torics and multifocals, or whether it is just for spherical lenses. If the offer doesn’t apply to any conceivable person coming in for a contact lens exam, then you have to state that.
Don’t Overstate Services
In marketing, and in how your staff promotes your practice verbally to patients, be careful that you are not overstating what you can do. It’s OK if your advertising and staff say: “Our doctor is great.” It isn’t OK if you publicize: “Our doctor can handle anything.” A statement like that could lead patients to believe that you can manage, and treat, conditions that are beyond your licensure, or beyond what the patient’s insurance allows.
For example, I have a California glaucoma license, but if a patient with glaucoma comes to me, I can’t treat them, and have their insurance cover it, if their insurance doesn’t cover treatment for glaucoma by an optometrist, or requires that the patient see one of the insurance company’s providers for the treatment of that condition. The patient in that case could still come to me as a patient, but would have to pay out-of-pocket.
Be careful in your exam room conversations with patients that you don’t market yourself falsely by leading them to believe you can do more than you can. You don’t want to say: “Don’t worry about anything. We’ll take care of it.” That kind of vague, over-promising could easily be misinterpreted to mean that, whatever you discover in the course of the exam, you can take care of yourself.
The bottom line: Be careful what you publicize, and what you and your staff say to patients. When in doubt, under-promise and over-deliver.
Pamela Miller, OD, FAAO, JD, FNAP, has a solo optometric practice in Highland, Calif. She has a law degree, holds a therapeutic license, is California State Board-certified and glaucoma-certified to prescribe eye medications, and offers comprehensive vision care, contact lenses, visual therapy and low vision services. To contact her: drpam@omnivision.com.
