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Article 15. Fraudulent or Misleading Advertising
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§156. Council Requests to Review Advertising Copy.

(a) Upon receipt of a complaint under Section 155 of these regulations, the Administrative Director shall serve a written notice of complaint on the physician against whom the complaint was filed. Such notice shall direct the physician to file a copy of his or her advertising with the Medical Director within 15 working days of the date on which the notice was served.

(b) The Medical Director may take such steps as he or she deems necessary to determine whether the complaint has merit.

  (1) The Medical Director shall respond to the complaint within fifteen (15) working days of the Administrative Director's receipt of the physician's response and notify the complainant that the Administrative Director:  

  (A) will investigate the complaint; or  

  (B) will require additional time to ascertain whether the complaint has merit; or  

  (C) will refer a copy of the complaint to another agency which also has jurisdiction over the subject matter of the complaint; or  

  (D) will take no further action on the complaint because the Administrative Director lacks jurisdiction over the person or conduct complained of; or  

  (E) will take no further action on the complaint because the allegations of the complaint do not warrant further action by the Administrative Director for the reasons stated in the response.  

(c) At the time of filing the advertising copy with the Medical Director, the physician shall also file an answer to the complaint, briefly setting forth the grounds on which the physician believes the copy to be in compliance with Business and Professions Code Section 651, and the provisions of these regulations. Nothing contained in the answer shall preclude the right of the physician to present further or different grounds of defense before the Administrative Director or appropriate licensing board. Upon reviewing the physician's answer, the Medical Director may dismiss or informally resolve the complaint where he or she deems such action appropriate.

(d) The Administrative Director may, without receipt of a complaint, request a physician to provide a copy of any advertising used by that physician for review. Such a request shall be made in writing, and shall be personally served on the physician.

(e) If a physician who has been appointed as a QME fails to deliver a copy of the advertising used to the Administrative Director within fifteen (15) working days of receipt of the notice, the Administrative Director may infer from the failure to comply that the advertising material used by the QME is in violation of Business and Professions Code Section 651, or these regulations. The maximum penalty that the Administrative Director may impose for a finding of violation based solely on the negative inference created by this provision shall be suspension of the physician's appointment as a Qualified Medical Evaluator for a period of six months followed by a period of probation not to exceed one year.

(f) If a non-QME physician fails to deliver a copy of the advertising used to the Administrative Director within fifteen (15) working days of receipt of the request, the Administrative Director shall refer the matter to that physician's licensing board for such proceedings as that board may deem proper.

     Note: Authority cited: Sections 133, 139.4, 139.45 and 5307.3, Labor Code. Reference: Sections 139.4 and 139.45, Labor Code.  

1. New section filed 3-31-93; operative 4-30-93 (Register 93, No. 14).

2. Amendment of section heading, section and Note filed 1-13-2009; operative 2-17-2009 (Register 2009, No. 3).

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