Hospitals & Health Systems

Selecting a strong trademark is the key to being able to protect the trademark.  As we discussed last week, the first and central step in branding is selecting your facility’s trademarks, which promote a provider’s reputation, helping it stand out among its competition.  When choosing a name for a product or service, the inherent strength of mark should be considered, as this will affect many things going forward from the cost of a search to your ability to stop others from using similar names.

There are five categories of marks, each of which comes with its own level of legal protection. From least to most protected, they are:

  1. GENERIC: Names like “emergency room” or “doctors” – these cannot be trademarked.
  2. DESCRIPTIVE: Descriptive marks immediately provide information about the service or product.  These types of marks can be protected but only if they have acquired distinctiveness through use in commerce. Descriptive marks include laudatory marks (“Best Dental”); geographic marks (“North Shore Hospital”); and surnames (“Williams Orthopedics”).
  3.  SUGGESTIVE: These marks indirectly provide information about the goods and services requiring the consumer to make a mental step or connection to determine what the services are (“Service with a Heart” for a cardiac center; “Papoose” or “Joey” for pediatric services).  Suggestive marks are immediately protectable; however the scope of that protection is not as broad as for arbitrary or fanciful marks.
  4.  ARBITRARY: These marks, like “Apple” or “Amazon,” are real words but there is no connection between the words’ meaning and the services or products it is used for. These marks enjoy broad, strong protection.
  5.  FANCIFUL: These marks are made-up words, like “Xerox,” “Google,” or “Viagra,” created specifically to be used to identify the source or origin of certain goods or services. These are the most strongly protected marks.

Hospitals and other healthcare facilities have traditionally been named with geographic designations or with the name of a famous person or in other ways that would be considered “descriptive.”  These names, after long years of use are quite likely to have acquired “secondary meaning” so they are now protectable trademarks. Many such marks have become quite famous and will enjoy strong trademark protection despite their humble beginnings.  Therefore, the hospital will have the ability to police and control use by competitors of similar names.  However, it is unlikely that the hospital will be able to control all use of the descriptive elements of its name and trademark.

“Branding” is one of the most popular buzz words in the advertising and marketing arena.  But what does it mean to have a “brand” and what should you be willing to do to create and maintain your “brand”?  In today’s technology-driven economy, even the local hospital and primary care physician’s office have to compete for business. …

If you have been struggling to figure out the risk assessment requirements of the Final HIPAA Omnibus Rule, then you are in luck.  Join us for a webinar!  Husch Blackwell attorneys Pete Enko and Peter Sloan along with Director of Information Management Consulting Deb Juhnke will present the Who, What, When, How and Why…

The head of ICU at the Stony Brook University Hospital on Long Island wants to change how medical professionals respond to cardiac arrest.

The Guardian is reporting that the British-trained physician, Sam Parnia, M.D., specializes in resurrection.  His patients can be dead for several hours before he is able to resuscitate them and restore them…

Nursing is a study in multi-tasking: multiple patients with multiple issues that require complex medication management.  In addition, nurses have to manage massive amounts of information from both human and computer sources.  This week, The Joint Commission called for hospitals to address “alarm fatigue.”  According to The Joint Commission Sentinel Event Alert, medical devices that issue too many audio and visual…

With so many rating systems and awards, hospital administrators and patients alike are increasingly frustrated and confused about which hospitals are the “best.”  According to an article by Kaiser Health News (KHN) in conjunction with The Philadelphia Inquirer, one-third of all U.S. hospitals received at least one distinction from a major ratings group or company…

The Departments of Justice and Health and Human Services released a report last week showing that the government has achieved the highest return on investment in the 16-year history of the Health Care Fraud and Abuse (HCFAC) Program.  According to the report, for every dollar spent on healthcare-related fraud and abuse investigations in the last three years, the government recovered $7.90.

The government recovered $4.2 billion from healthcare fraud enforcement efforts in FY 2012, up from $4.1 billion in FY 2011.  The government continues to focus on reducing fraud and waste in the healthcare system.

“This was a record-breaking year for the Departments of Justice and Health and Human Services in our collaborative effort to crack down on health care fraud and protect valuable taxpayer dollars,” said Attorney General Holder.　 “In the past fiscal year, our relentless pursuit of health care fraud resulted in the disruption of an array of sophisticated fraud schemes and the recovery of more taxpayer dollars than ever before.　 This report demonstrates our serious commitment to prosecuting health care fraud and safeguarding our world-class health care programs from abuse.”

The government also touted the use of fraud-fighting tools authorized by the Affordable Care Act including enhanced screenings and enrollment requirements, increased data sharing across the government, expanded recovery efforts for overpayments and greater oversight of private insurance abuses.  Screening of all 1.5 million Medicare-enrolled providers through the new Automated Provider Screening system began in FY 2012.  The report states that nearly 150,000 ineligible providers have already been eliminated from Medicare’s billing system. 

While union organizing is decreasing in so many other parts of the economy, the healthcare industry remains a target.  The Service Employees International Union in particular continues in its efforts to organize healthcare facilities throughout the United States.  A recent settlement agreement through the NLRB between the University of Pittsburgh Medical Center and the Service…

President Barack Obama signed the American Taxpayer Relief Act of 2012, often called the “fiscal cliff” agreement, on January 2, 2013. Buried in the 59 pages of the act is a seven-line amendment to Section 1870 of the Social Security Act. This section bars recovery of overpayments from providers who are “without fault” and automatically deems a provider to be without fault three years from the year in which the original payment was made (unless there is evidence of fault). The three-year “without fault” limitation provision was enacted in 1972. Without much notice, the fiscal cliff deal extended this to five years.

The push for extension of the limitation began when the Department of Health and Human Service’s Office of Inspector General (OIG) issued a report recommending to the Centers for Medicare & Medicaid Services (CMS) that it pursue legislation to extend the statute of limitations. (See OIG, Obstacles to Collection of Millions in Medicare Overpayments.) This report blamed the time limitations on reopening and recovery of payments (four years and three years, respectively) as the reason why approximately $330 million in overpayments could not be recovered by CMS. The OIG also concluded that CMS’ inadequate guidance and monitoring of contractors was to blame. The Congressional Budget Office (CBO) has issued a report estimating that $500 million would be added to the federal treasury by 2022 as a result of the statute of limitation change. (See CBO, Detail on Estimated Budgetary Effects of Title VI.)

The biggest question for providers is how to deal with this change going forward. The following illustration demonstrates how the three-year limitation period applied: Provider was notified on February 22, 2009, that it had been paid for services provided to beneficiary. On January 2, 2013, the contractor determined that provider was overpaid for these services. If there was no evidence that provider acted fraudulently, this overpayment could not be recovered because under the statute of limitations the right to do so expired on December 31, 2012. Had the contractor determined that the provider was overpaid on any date prior to December 31, 2012, it would have been recoverable. (See Medicare Financial Management Manual, Chapter 3, Section 80.1.) Accordingly, any payments made in 2009 or before were not recoverable as of January 1, 2013.