This 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.

Backing 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.

Employers often misconstrue the terms “non-exempt employee” and “hourly employee,” leading them to believe the terms are interchangeable. But, not all non-exempt employees are necessarily hourly employees. The Fair Labor Standards Act (FLSA) allows employers to pay their non-exempt employees on a salary basis as long as they meet minimum wage and overtime mandates. Paying certain non-exempt employees on a salary basis may prove a useful tool as healthcare institutions weigh changes in employee compensation practices necessitated by new FLSA regulations (previously discussed).

The Supreme Court’s unanimous decision in Universal Health Services, Inc. v. United States ex rel. Escobar, No. 15-7 (U.S. June 16, 2016) upholds the viability of the implied certification theory of False Claims Act liability. But it also makes cases arising from minor instances of noncompliance much harder to prove. The Court held that a knowing failure to disclose a violation of a material statutory, regulatory, or contractual requirement can create False Claims Act liability. The requirement need not be an express condition of payment, but it must be material to the government’s decision to pay.

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.