United States: Can Ads Accidentally Make Your Hospital Or Clinic A Mississippi Pain Practice?

To combat the national overdose crisis, the Mississippi State Board of Medical Licensure changed how it regulates pain management practices. But this has created confusion about what a pain management practice is. A review of advertisements and websites shows that many hospitals and clinics likely fall within the definition of a "pain management practice" even though they do not primarily prescribe controlled substances.

What Qualifies as a Pain Management Practice?

The Board defines a "pain management practice" as follows:

Traditional Pain Management Practices

The first test to determine whether a practice is a pain management practice is an objective test based on the controlled substances prescribing for 50% or more of its patients on a regular or recurring basis to treat chronic non-cancerous/non-terminal pain. This can be measured by reviewing the practice's patient charts. It is easy to see that the Board wanted to regulate practices that primarily engage in controlled substance medication management.

How Advertising May Accidentally Create Pain Management Practice Obligations

Practices that do not meet this 50% controlled substance test may still be considered a pain management practice. The language, "[i]ncluded in this definition is any practice that advertises and/or holds itself out to provide pain management services" likely includes a lot of practices that do not primarily provide medication management.

For example, many orthopedic and neurology practices include language on their websites offering services to treat patients' pain or chronic pain. Does that advertising mean these practices are holding themselves out to the public as pain management practices? Under a strict reading of the Board's regulations, using language on a provider's website about the treatment of a patient's painful condition or symptoms could mean that practice qualifies as a pain practice under Mississippi law. Significantly, the regulation does not define "pain management services," which could be considered the simple treatment of a patient's painful condition or symptoms.

Patients rightfully expect that joint replacement surgeries will alleviate pain. The same is true of many other procedures that do not primarily involve the prescribing of controlled substances. However, the Board's definition of a pain management practice likely means that the burdens of being a pain management practice apply to those advertising pain relief.

Consequences of Qualifying as a Pain Management Practice

A practice operated by a physician, hospital or other health care facility that qualifies as a "pain management practice" must complete a Pain Management Medical Practice Registration and Renewal Application Form each year and file it with the Board. Practices that fail to file the appropriate annual registration will be in violation of the Mississippi Medical Practice Act and potentially subject to penalties for unprofessional conduct, dishonorable or unethical conduct likely to deceive, defraud or harm the public in violation of Miss. Code Ann. §73-25-29. If a practice meets the definition of a "pain management practice," it must comply with all of the following obligations:

• Meet certain ownership obligations, whether the practice is owned by a physician, group of physicians, a hospital or another health care entity.
• File an annual registration with the Board as described above.
• For physician owners of a pain practice, meet specific requirements as set forth in the rules.
• For each licensee who serves as a medical director, manager or employee or who provides care in a pain management practice, meet specific requirements as set forth in the rule.

Should You Advertise the Treatment of Pain?

Physicians, hospitals and other health care facilities should be careful about how they advertise and market their services for the treatment of a patient's chronic pain. Physicians and other providers should avoid advertising that they provide "pain management" care or services, as these appear to be key terms in the definition of a pain management practice. In addition, providers should either avoid or be judicious in the extent to which they advertise that they treat pain. As a general rule, the more a provider discusses a patient's pain and the treatment of that pain in advertisements held out to the public, the more likely that provider may be considered a pain management practice under the Board's rules.

Providers would be well served to scrutinize their signage, advertisements and marketing materials to determine what language is included on the treatment of pain. The types of advertisements that the practice should review, and may be reviewed by a Board investigator, include:

• Location signage
• Websites
• Print advertising
• Social media advertising and posts
• Billboard, radio and television advertisements
• Patient testimonials

What Should Providers Watch Out For?

Health care providers should be careful in terms of holding themselves out as treating patient pain unless they plan to register as a pain management practice with the Board and comply with its strict regulations. Advertisements, websites, social media posts and other forms of marketing may be scrutinized by the Board to determine whether the practice should be registered as a Mississippi pain practice.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.