Practice Fusion, Inc.; Analysis of Proposed Consent Order To Aid Public Comment, 39048-39049 [2016-14091]

Agencies

• FEDERAL TRADE COMMISSION

[Federal Register Volume 81, Number 115 (Wednesday, June 15, 2016)]
[Notices]
[Pages 39048-39049]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-14091]


=======================================================================
-----------------------------------------------------------------------

FEDERAL TRADE COMMISSION

[File No. 142 3039]


Practice Fusion, Inc.; Analysis of Proposed Consent Order To Aid 
Public Comment

AGENCY: Federal Trade Commission.

ACTION: Proposed consent agreement.

-----------------------------------------------------------------------

SUMMARY: The consent agreement in this matter settles alleged 
violations of federal law prohibiting unfair or deceptive acts or 
practices. The attached Analysis to Aid Public Comment describes both 
the allegations in the draft complaint and the terms of the consent 
order--embodied in the consent agreement--that would settle these 
allegations.

DATES: Comments must be received on or before July 8, 2016.

ADDRESSES: Interested parties may file a comment at https://ftcpublic.commentworks.com/ftc/practicefusionconsent online or on 
paper, by following the instructions in the Request for Comment part of 
the SUPPLEMENTARY INFORMATION section below. Write ``Practice Fusion, 
Inc.--Consent Agreement; File No. 142 3039'' on your comment and file 
your comment online at https://ftcpublic.commentworks.com/ftc/practicefusionconsent by following the instructions on the web-based 
form. If you prefer to file your comment on paper, write ``Practice 
Fusion, Inc.--Consent Agreement; File No. 142 3039'' on your comment 
and on the envelope, and mail your comment to the following address: 
Federal Trade Commission, Office of the Secretary, 600 Pennsylvania 
Avenue NW., Suite CC-5610 (Annex D), Washington, DC 20580, or deliver 
your comment to the following address: Federal Trade Commission, Office 
of the Secretary, Constitution Center, 400 7th Street SW., 5th Floor, 
Suite 5610 (Annex D), Washington, DC 20024.

FOR FURTHER INFORMATION CONTACT: Allison Lefrak, Attorney, (202-326-
2804) or Ryan Mehm, Attorney, (202-326-2918), Bureau of Consumer 
Protection, 600 Pennsylvania Avenue NW., Washington, DC 20580.

SUPPLEMENTARY INFORMATION: Pursuant to Section 6(f) of the Federal 
Trade Commission Act, 15 U.S.C. 46(f), and FTC Rule 2.34, 16 CFR 2.34, 
notice is hereby given that the above-captioned consent agreement 
containing consent order to cease and desist, having been filed with 
and accepted, subject to final approval, by the Commission, has been 
placed on the public record for a period of thirty (30) days. The 
following Analysis to Aid Public Comment describes the terms of the 
consent agreement, and the allegations in the complaint. An electronic 
copy of the full text of the consent agreement package can be obtained 
from the FTC Home Page (for June 8, 2016), on the World Wide Web at: 
https://www.ftc.gov/os/actions.shtm.
    You can file a comment online or on paper. For the Commission to 
consider your comment, we must receive it on or before July 8, 2016. 
Write ``Practice Fusion, Inc.--Consent Agreement; File No. 142 3039'' 
on your comment. Your comment--including your name and your state--will 
be placed on the public record of this proceeding, including, to the 
extent practicable, on the public Commission Web site, at https://www.ftc.gov/os/publiccomments.shtm. As a matter of discretion, the 
Commission tries to remove individuals' home contact information from 
comments before placing them on the Commission Web site.
    Because your comment will be made public, you are solely 
responsible for making sure that your comment does not include any 
sensitive personal information, like anyone's Social Security number, 
date of birth, driver's license number or other state identification 
number or foreign country equivalent, passport number, financial 
account number, or credit or debit card number. You are also solely 
responsible for making sure that your comment does not include any 
sensitive health information, like medical records or other 
individually identifiable health information. In addition, do not 
include any ``[t]rade secret or any commercial or financial information 
which . . . is privileged or confidential,'' as discussed in Section 
6(f) of the FTC Act, 15 U.S.C. 46(f), and FTC Rule 4.10(a)(2), 16 CFR 
4.10(a)(2). In particular, do not include competitively sensitive 
information such as costs, sales statistics, inventories, formulas, 
patterns, devices, manufacturing processes, or customer names.
    If you want the Commission to give your comment confidential 
treatment, you must file it in paper form, with a request for 
confidential treatment, and you have to follow the procedure explained 
in FTC Rule 4.9(c), 16 CFR 4.9(c).\1\ Your comment will be kept 
confidential only if the FTC General Counsel, in his or her sole 
discretion, grants your request in accordance with the law and the 
public interest.
---------------------------------------------------------------------------

    \1\ In particular, the written request for confidential 
treatment that accompanies the comment must include the factual and 
legal basis for the request, and must identify the specific portions 
of the comment to be withheld from the public record. See FTC Rule 
4.9(c), 16 CFR 4.9(c).
---------------------------------------------------------------------------

    Postal mail addressed to the Commission is subject to delay due to 
heightened security screening. As a result, we encourage you to submit 
your comments online. To make sure that the Commission considers your 
online comment, you must file it at https://ftcpublic.commentworks.com/ftc/practicefusionconsent by following the instructions on the web-
based form. If this Notice appears at https://www.regulations.gov/#!home, you also may file a comment through that Web site.
    If you file your comment on paper, write ``Practice Fusion, Inc.--
Consent Agreement; File No. 142 3039'' on your comment and on the 
envelope, and mail your comment to the following address: Federal Trade 
Commission, Office of the Secretary, 600 Pennsylvania Avenue NW., Suite 
CC-5610 (Annex D), Washington, DC 20580, or deliver your comment to the 
following address: Federal Trade Commission, Office of the Secretary, 
Constitution Center, 400 7th Street SW., 5th Floor, Suite 5610 (Annex 
D), Washington, DC 20024. If possible, submit your paper comment to the 
Commission by courier or overnight service.
    Visit the Commission Web site at https://www.ftc.gov to read this 
Notice and the news release describing it. The FTC Act and other laws 
that the Commission administers permit the collection of public 
comments to consider and use in this proceeding as appropriate. The 
Commission will consider all timely and responsive public comments that 
it receives on or before July 8, 2016. You can find more information, 
including routine uses

[[Page 39049]]

permitted by the Privacy Act, in the Commission's privacy policy, at 
https://www.ftc.gov/ftc/privacy.htm.

Analysis of Proposed Consent Order To Aid Public Comment

    The Federal Trade Commission (``Commission'') has accepted, subject 
to final approval, an agreement containing a consent order from 
Practice Fusion, Inc. (``Practice Fusion'').
    The proposed consent order has been placed on the public record for 
thirty (30) days for receipt of comments by interested persons. 
Comments received during this period will become part of the public 
record. After thirty (30) days, the Commission will again review the 
agreement and the comments received, and will decide whether it should 
withdraw from the agreement or make final the agreement's proposed 
order.
    Since 2007, Practice Fusion has provided services for healthcare 
providers. Since 2007, its core service has been a cloud-based 
electronic health record (``EHR'') that allows healthcare providers in 
the ambulatory/out-patient setting to store and utilize health 
information. In 2009, Practice Fusion launched the Patient Fusion Web 
site, www.patientfusion.com (``Patient Fusion''), with an online portal 
that allows patients, who have been granted access by their healthcare 
providers, to view, download, and transmit to other providers their 
health information and send and receive secure messages directly to 
their providers.
    Practice Fusion planned to launch a public-facing healthcare 
provider directory portion of the Patient Fusion Web site in 2013. The 
directory would, among other things, allow current and prospective 
patients to read patient reviews of providers. To populate this Web 
site with reviews, starting on April 5, 2012, Practice Fusion sent 
emails to the patients of its healthcare provider clients soliciting 
those patients to take surveys to rate and review their provider. The 
email--and the survey itself--suggested that the health care provider 
was directly seeking the survey responses to improve the consumer's 
experience on future visits. Neither the email nor the survey clearly 
indicated that the reviews would be posted publicly. Practice Fusion 
solicited reviews for a full year--collecting information from over 
600,000 patients during that time--before launching the review service 
on April 8, 2013, at which time all of the reviews previously collected 
were posted publicly on the Internet. Many of the reviews contained 
highly sensitive information, combined with identifying information, 
indicating that many patients likely thought they were communicating 
directly with their doctors, and did not intend for their feedback to 
be posted publicly.
    The Commission's proposed complaint alleges that Practice Fusion 
violated Section 5(a) of the Federal Trade Commission Act from April 
2012 through April 2013 by failing to adequately disclose that survey 
responses would be made publicly available on Patient Fusion's 
healthcare provider review Web site. This fact, according to the 
proposed complaint, would be material to consumers in deciding whether 
or how to respond to the survey. The Commission's complaint alleges 
that Practice Fusion's failure to adequately disclose this material 
information is a deceptive act or practice in violation of Section 5.
    The proposed order contains provisions designed to prevent Practice 
Fusion from engaging in the same or similar acts or practices in the 
future. Part I of the proposed order prohibits Practice Fusion from 
misrepresenting the extent to which it uses, maintains, and protects 
the privacy and confidentiality of any covered information, including 
the extent to which covered information is made publicly available.
    Part II of the proposed order requires Practice Fusion, prior to 
making any consumer's covered information publicly available, to (A) 
clearly and conspicuously disclose to the consumer, separate and apart 
from ``privacy policy,'' ``terms of use'' page, or similar document, 
that such information is being made publicly available; and (B) obtain 
the consumer's affirmative express consent.
    Part III of the proposed order prohibits Practice Fusion from 
displaying any healthcare provider review information obtained from 
consumers between April 5, 2012 and April 8, 2013. Part III of the 
proposed order also prohibits Practice Fusion from maintaining such 
information, except for review and retrieval by its healthcare provider 
customers, or their respective agents, contractors, assigns, or as 
permitted to comply with applicable law, regulation, or legal process.
    Parts IV through VIII of the proposed order are reporting and 
compliance provisions. Part IV requires acknowledgment of the order and 
dissemination of the order now and in the future to persons with 
supervisory responsibilities relating to the subject matter of the 
order. Part V ensures notification to the FTC of changes in corporate 
status and mandates that Practice Fusion submit an initial compliance 
report to the FTC. Part VI requires Practice Fusion to retain documents 
relating to its compliance with the order for a five-year period. Part 
VII mandates that Practice Fusion make available to the FTC information 
or subsequent compliance reports, as requested. Part VIII is a 
provision ``sunsetting'' the order after twenty (20) years, with 
certain exceptions.
    The purpose of this analysis is to aid public comment on the 
proposed order. It is not intended to constitute an official 
interpretation of the complaint or proposed order, or to modify in any 
way the proposed order's terms.

    By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. 2016-14091 Filed 6-14-16; 8:45 am]
BILLING CODE 6750-01-P