(a) A physician is authorized to use the term "board certified" in any advertising for his or her practice only if the specialty board that conferred the certification and the certifying organization is a member board of the American Board of Medical Specialties (ABMS), or the American Osteopathic Association Bureau of Osteopathic Specialists (BOS), or is the American Board of Oral and Maxillofacial Surgery.     
      (b) Physicians who are certified by a board that does not meet the criteria of subsection (a) of this section, shall be authorized to use the term "board certified" only if the medical board determines that the physician-based certifying organization that conferred the certification has certification requirements that are substantially equivalent to the requirements of the ABMS or the BOS existing at the time of application to the medical board. Physicians, or physician-based certifying organizations on behalf of their members, must submit an application to a committee of the medical board, and demonstrate that:      
        (1) the organization requires all 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 medicine. All or part of the examination may be delegated to a testing organization. All examinations require a psychometric evaluation for validation;       
        (2) the organization 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 Section 501(c);       
        (3) the organization has a permanent headquarters and staff;       
        (4) the organization has at least 100 duly licensed members, fellows, diplomates, or certificate holders from at least one-third of the states;       
        (5) the organization requires all physicians who are seeking certification to have successfully completed postgraduate training that is accredited by the Accreditation Council for Graduate Medical Education (ACGME) or the American Osteopathic Association and that provides substantial and identifiable supervised training of comprehensive scope in the specialty or subspecialty certified, and the organization utilizes appropriate peer review;       
        (6) the organization provides an online resource for the consumer to verify the board certification of its members; and       
        (7) the organization has the ability to provide a full explanation of its certification process and membership upon request by the Texas Medical Board.       
      (c) A physician may not authorize the use of or use the term "board certified" if the claimed board certification has expired and has not been renewed at the time the advertising in question was ordered.     
      (d) The terms "board eligible," "board qualified," or any similar words or phrase calculated to convey the same meaning may not be used in physician advertising.     
      (e) A physician's authorization of or use of the term "board certified", or any similar words or phrase calculated to convey the same meaning in any advertising for his or her practice shall constitute misleading or deceptive advertising unless the specialty board which conferred the certification and the certifying organization meet the requirements in subsection (a) or (b) of this section.     
      (f) A physician may advertise a field of interest if the physician is certified by, or a member, fellow, or diplomate of an organization that meets the requirements of subsection (a) or (b) of this section.     
      (g) A board certified physician who advertises board certification may advertise a field of interest that is different from the certified specialty only if the physician identifies the specialty for which the physician is board certified in an equal size of type or emphasis.     
      (h) A physician who is not board certified by, or a member, fellow, or diplomate of an organization that meets either the requirements of subsection (a) or (b) of this section may not advertise a field of interest, except that the physician may advertise that his or her practice is "limited to" a certain practice area.     
      (i) A physician who holds a certification that was granted prior to September 1, 2010, and whose certifying board was approved by the medical board for advertising purposes prior to September 1, 2010, is considered to meet the requirements of subsection (b) of this section.     
      (j) Application for board certification approval for the purpose of advertising.      
        (1) Applicants for approval of board certification under subsection (b) of this section shall complete a written application and payment of an application fee as set out in §175.1 of this title (relating to Application Fees).       
        (2) Applicants whose applications have been filed with the board in excess of one year will be considered expired. Any fee previously submitted with that application shall be forfeited. Any further request for board certification recognition will require submission of a new application and inclusion of the current application fee. An extension to an application may be granted under certain circumstances, including:                  (A) Delay by board staff in processing an application;                   (B) A committee of the board requires an applicant to meet specific additional requirements for approval and the application will expire prior to deadline established by the Committee; or                   (C) Applicant requires a reasonable, limited additional period of time to obtain documentation after completing all other requirements and demonstrating diligence in attempting to provide the required documentation.         
        (3) If the executive director determines that an application meets all qualifications, the application shall be presented to a committee of the board for review and approval.       
        (4) If the Executive Director determines that the applicant does not clearly meet all requirements, the executive director shall notify the applicant and the applicant may appeal that decision to a committee of the board.       
        (5) Disapproval Determination.                  (A) If a committee of the board or the full board determines that an applicant's certifying board does not meet the board's requirements for approval, the applicant shall be notified of the disapproval determination.                   (B) If an applicant's certifying board is disapproved, the applicant may request a rehearing of the application before a committee of the board. The request must be made within 20 days receipt of notice of the disapproval determination. It is at the discretion of the committee whether to grant a rehearing. The request for rehearing must be based on information not previously presented to or considered.         
        (6) A certifying board approved by the board under this subsection must be reviewed every five years from the date of initial approval and the board must obtain information of any substantive changes in the certifying board's requirements for diplomates since the certifying board was last reviewed by the board. In addition, a renewal fee as set out §175.2 of this title (relating to Registration and Renewal Fees) must be paid by an applicant to have the certifying board reviewed.       
     Source Note:        The provisions of this §164.4 adopted to be effective March 8, 2001, 26 TexReg 1863; amended to be effective May 2, 2004, 29 TexReg 3962; amended to be effective July 3, 2007, 32 TexReg 3992; amended to be effective January 17, 2011, 36 TexReg 137; amended to be effective May 5, 2011, 36 TexReg 2727