Over the last several years, many healthcare providers have struggled financially due to decreased reimbursements and changing payment models. Hardest hit are providers in small towns that do not benefit from being part of larger healthcare systems. Seeking relief, they may initiate Chapter 11 bankruptcy proceedings and sell assets to third parties to relinquish liabilities.

On June 9, 2016, the Texas Medical Board proposed for comment new rules regarding physician call coverage. The proposed new rule originated from the Board’s Telemedicine Committee and changes the current telemedicine call coverage rule. The rule would apply to all physician call coverage relationships, not just telemedicine.

During the meetings last week, the Board’s Executive Director stated that the proposed rule was created at the request of the Texas Medical Association and leadership from Children’s Medical Center of Dallas with input from the Texas e-Health Alliance. An earlier draft was withdrawn during the Board’s March 2016 meeting. The current draft was reviewed and discussed during a recent meeting of the Board’s telemedicine stakeholder group.

The out-of-network (OON) business model faces challenges as the result of changes to health and benefit plan OON coverage, but a ruling by Judge Hoyt of the U.S. District Court for the Southern District of Texas suggests that health plans should be careful in refusing payment based on perceived OON high charges, questions about OON co-insurance collection, or provider financial arrangements.

On May 9, 2016, the Middle District of Pennsylvania in FTC et al. v. Hershey Medical Center et al. (“Hershey”) denied a preliminary injunction request by the FTC to block a merger between Penn State Hershey Medical Center and PinnacleHealth System. The District Court rejected the FTC’s request based on its finding that the FTC’s geographic market definition was “unrealistically narrow and does not assume the commercial realities faced by consumers in the region.” The proper geographic market is one from which the defendant hospitals draw the bulk of their patients, with few patients entering in from outside that area to seek medical care and few patients within that area leaving to seek care from other hospitals. The District Court found the FTC’s proposed geographic market to be “starkly narrow,” particularly “given the realities of living in Central Pennsylvania, which is largely rural and requires driving distances for specific goods and services.” By failing to set forth a relevant geographic market, the District Court held that the FTC could not demonstrate a likelihood of success on the merits of its Clayton Act case against the merger and denied the preliminary injunction.

We have talked about why it is important to use your trademark consistently. The easiest way to be sure that everyone in your organization knows the proper way to use the company’s trademarks is to create and distribute a trademark usage manual. The trademark usage manual should include easy to follow guidelines setting out that the mark is to be used as an adjective and not a noun, as well as the proper font, colors etc. that should be used to depict the mark. The usage manual does not need to be a complex or confusing document. It should be a straightforward listing of the acceptable ways that the company’s trademark should be used.

On April 29, 2016, the Joint Commission released an update (“Update”) providing for the use of text messaging to submit orders for patient care, treatment, or services to the hospital or other health care settings for all accreditation programs. Back in 2011, the Joint Commission believed that the technology necessary to secure contents of a text message, verify the identity of the person sending the message, and retain the original message within the medical record were not readily available, and, therefore, prohibited the use of text messaging to submit orders. However, this has changed as reasonably accessible technology has been developed which mitigates the security and record retention risks the Joint Commission previously identified. In the Update, the Joint Commission said, “effective immediately, licensed independent practitioners or other practitioners in accordance with professional standards of practice, law and regulation, and policies and procedures may text orders as long as a secure text messaging platform is used and the required components of an order are included.”

In our companion post we are talking about the importance of using your trademarks in a consistent manner. This consistency helps consumers know that when they see KalmKap that it identifies a product coming from a single company and that they can trust that the quality is the same as the last time they bought the product. Consistent use helps to identify your mark as being owned by you. Another way identify your marks as belonging to you is use the recognized trademark symbols and to make appropriate attribution statements somewhere within your ads.

We have discussed the need to use your trademarks as adjectives and not nouns or verbs to avoid having them becoming descriptive or even generic terms. A good quick test to see if you are using the mark correctly is to remove the mark from the sentence and see if it still makes sense. If you still have a functional sentence, you are using the mark correctly. So, “Buy XYZ surgical equipment, it will make your day easier” still makes sense without the mark: “Buy surgical equipment, it will make your day easier.” However “Buy XYZ, it will make your day easier” makes no sense without the mark: “Buy, it will make your day easier.”

A trademark audit is at its most basic an asset inventory. But instead of tracking down and counting blood pressure monitors, otoscopes and scalpels you are tracking down words, phrases and pictures (logos) that you are using to promote your business to the public. And instead of checking and noting the condition of physical items and culling out those that are beyond repair or use, your trademark auditor will be determining what words, phrases and pictures (logos) you are using as trademarks and whether you are using these marks properly. It may also find that you are using marks that no longer conform to your desired public image or mission statement and that need to be retired.

On April 27, 2016, the Department of Health & Human Services Centers for Medicare & Medicaid Services (CMS) released its proposed rule regarding models for tying professional reimbursement to quality. While this may be great news for providers who enjoy the challenges of tracking and reporting data, these challenges are going to cause problems (namely, reimbursement reductions) for some providers. Regardless of whether providers think this is good or bad, providers should start looking at the proposed regulations now because, as proposed, quality-based payments will be a fact of life for all physicians, mid-levels, CRNAs and groups effective Jan. 1, 2019. The regulations will be published in the May 9, 2016, Federal Register. The comment period will officially start at that time and run through 5 p.m. on June 27, 2016.