Let’s Stay Together: Negotiating a Successful Joint Technology Development Agreement

Technology -circuit board-144346637An entrepreneurial company may face an early decision as to how it can afford to develop new technology, particularly new technology that does not fit within the technical specialties of that entity. Whether a new company needs to develop a new website, new software, or a compatible piece of technology, that company might consider entering into a contractual alliance with another party to develop that technology. Continue Reading

How much does it cost to identify and repay federal health plan overpayments late?

dollar-signiStock_000013001848_LargeRoughly $2.95 for each $1 overpaid (plus legal costs and the overpayment) based on an August 24, 2016, U.S. Attorney’s Office press release regarding settlement of State of New York, ex rel. Robert P. Kane v. Healthfirst, Inc. et al case in the U.S. District Court for the Southern District of New York. Defendants previously lost a motion to dismiss this case based, in part, on the fact that defendants actually identified and repaid the overpayments. Specifically, about $1 million in overpayments were presented to the defendants in the form of a spreadsheet in February 2011. Subsequently, defendants repaid the overpayments in more than 30 installments from April 2011 to March 2013. Notwithstanding, the government took the position that, under the False Claims Act, repayment should have been made within 60 days of the date of the claims were identified in the spreadsheet. Defendants argued, among other things, that there was ambiguity about the term “identify” as used in the False Claims Act and that the spreadsheet was merely the first component of an investigation into the overpayments that was ongoing through the repayment process. Almost a year after losing the motion to dismiss, defendants settled the case for $2.95 million. Continue Reading

Calls and text messages from healthcare organizations: New developments under the TCPA’s ’emergency purpose’ exception

gavel-scales2013%20052[The Telephone Consumer Protection Act (TCPA), which imposes a penalty of $500-$1,500 per violation for pre-recorded or auto-dialed calls to cell phones, contains two statutory exceptions to liability:

  • where the recipient of the call provided his or her prior express consent to be called, or
  • where the call was placed for an “emergency purpose.”

47 U.S.C. § 227 (b)(1). While much attention has been focused on “consent,” the FCC’s definition of “emergency purpose” has remained relatively untested in TCPA litigation.

That landscape may be beginning to change. The federal district court’s recent decision in the putative class action lawsuit Roberts v. Medco Health Solutions, et al., No. 4:15 CV 1368 CDP (E.D. Mo., July 26, 2016) recognized that consistent with the FCC’s promulgated definition, the emergency purpose exception must be interpreted broadly to cover any calls that may affect the health and safety of a consumer. Continue Reading

Branding 101 – Should puffery be avoided in healthcare advertising?

curtains_000003766048Small1-001-300x199Healthcare is a highly competitive market. Healthcare companies are hiring marketing teams to lure customers to their facility. This will invariably require making statements regarding the quality of your services and how your services are better than your competitors. Problems will arise if these ads cause patients or their families to expect more than what is or even can be offered. There are many scenarios that could result in claims of false advertising under §43(a) of the Lanham Act. In addition, the Federal Trade Commission (FTC) and the National Advertising Division (NAD) of the Council of Better Business Bureaus have guidelines for what companies may include within their marketing programs. Today, however, we will be looking at “puffery.” Continue Reading

Branding 101 – Laudatory Trademarks: Are they worth the effort?

curtains_000003766048Small1-001-300x199In one of our first posts, we discussed the five categories of trademarks (Generic – Descriptive – Suggestive – Arbitrary – Fanciful) and how a mark became more protectable as it moved up the line. Laudatory trademarks, trademarks that attribute a quality or excellence to the goods or services, are often included in this list as “descriptive marks” requiring a showing of secondary meaning to be protectable. However, it has been recognized that some laudatory marks do not describe any feature of the product it is used with, but rather suggest that the product is of high quality or “better” quality than other similar products. In these cases, the laudatory composite mark may be considered to be suggestive. Continue Reading

Fifth Circuit decision finds new exception to at-will employment: employee gun rights

Gun controlRecently, Husch Blackwell partners Stephen Cockerham and Kevin Koronka presented a webinar to Texas employers concerning the impact legislation concerning gun rights may have on employers. The Fifth Circuit Court of Appeals, the federal appellate court with jurisdiction over Texas federal district courts, recently released a decision concerning employee gun rights of which employers, particularly those with Mississippi employees, should take note. Continue Reading

CMS targets inappropriate social media use in nursing homes

Social network communityThe U.S. Dept. of Health & Human Services Centers for Medicare and Medicaid Services (CMS) published a memo (Ref:  S&C: 16-33-NH) Aug. 5, 2016, to state nursing home survey agency directors related to protecting resident privacy and prohibiting mental abuse related to photographs and audio/video recordings by nursing home staff. The memo is a response to recent media reports regarding inappropriate posting to social media of pictures of nursing home residents – namely a disconcerting report by ProPublica detailing 47 incidents in which workers shared photos or videos with friends or the public – these incidents involved both mistreatment of residents and inadvertent disclosure or patient health information. Within 30 days of the memo, surveyors are to implement changes to address these issues. Continue Reading

Branding 101: Nominative Fair Use

curtains_000003766048Small1-001-300x199This week we are discussing ways you can use a third party’s mark to identify the third party’s goods or services while also advertising your own. For example, a dental office wants to let potential patients know that it uses a specific brand of dental veneers. The law allows XYZ Dental to factually state:

“XYZ Dental specializes in the fitting and application of ABC® brand veneers.”

This type of use is known as nominative fair use and as with comparative advertising and descriptive fair use, there are rules that need to be followed. Continue Reading

U.S. DOJ sues to stop health plan mergers

gavel-scales2013%20052[On Wednesday, July 20, 2016, the U.S. Department of Justice (DOJ) filed two lawsuits in the U.S. District Court for the District of Columbia, one, Cause 1:16-cv-01494, seeking to stop the proposed merger between Aetna and Humana (valued at $37 billion) and the other, Cause 1:16-cv-01493, seeking to stop the acquisition of Cigna by Anthem (valued at $54 billion). Continue Reading

Congress’ suggestions for ransomware treatment under HIPAA

dataLocks148650499Backing up electronic health record data may become an important aspect of complying with and mitigating risk under the Health Insurance Portability and Accountability Act (HIPAA) and Health Information Technology for Economic and Clinical Health Act (HITECH) if the U.S. Health and Human Services Office of Civil Rights (OCR) heeds legislators’ recommendations. Continue Reading

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