.08 Advertising Before an Initial Certificate of Registration Has Been Issued.

A. If a provider that has submitted a feasibility study desires to advertise a continuing care community before an initial certificate of registration has been issued, the provider shall submit that advertising so it is received by the Department at least 3 working days before the advertising is to be aired, distributed, or otherwise used. The envelope or package in which the submission is delivered shall indicate in prominent type that the contents are proposed advertising materials for a community that does not have an initial certificate of registration.

B. The Department shall determine within 3 working days of the receipt of the advertising whether it is deceptive, misleading, or likely to mislead. If the Department determines that the advertising is deceptive, misleading, or likely to mislead and should not be used, then the Department shall notify the provider that submitted the advertising materials of its determination. This notice shall be in writing, include the rationale for the determination, and be delivered before the close of business of the third working day after the day upon which the advertising was received for review. The notice may be delivered by facsimile.

C. If the provider has not received the notice by 5 p.m. on the third working day following receipt of the advertising by the Department, the provider may use the advertising. The lack of notification by the Department does not mean the Department has determined that the advertising is not deceptive, misleading, or likely to mislead.

D. If a provider is notified that the Department has determined that the advertising, or some part of the advertising, is deceptive, misleading, or likely to mislead, the provider may appeal that determination under Regulation .36 of this chapter. An appeal shall be processed on an accelerated basis if the provider so desires.