81 FR 39048 - Practice Fusion, Inc.; Analysis of Proposed Consent Order To Aid Public Comment

FEDERAL TRADE COMMISSION

Federal Register Volume 81, Issue 115 (June 15, 2016)

Page Range		39048-39049
FR Document		2016-14091

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.

Federal Register, Volume 81 Issue 115 (Wednesday, June 15, 2016)

[Federal Register Volume 81, Number 115 (Wednesday, June 15, 2016)]
[Notices]
[Pages 39048-39049]
From the Federal Register Online [www.thefederalregister.org]
[FR Doc No: 2016-14091]

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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.

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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:
http://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 http://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.
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\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).
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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 http://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 http://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
http://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

Federal Register / Vol. 81, No. 115 / Wednesday, June 15, 2016 / Notices 39049

permitted by the Privacy Act, in the were communicating directly with their requires Practice Fusion to retain
Commission’s privacy policy, at http:// doctors, and did not intend for their documents relating to its compliance
www.ftc.gov/ftc/privacy.htm. feedback to be posted publicly. with the order for a five-year period.
The Commission’s proposed Part VII mandates that Practice Fusion
Analysis of Proposed Consent Order To complaint alleges that Practice Fusion make available to the FTC information
Aid Public Comment violated Section 5(a) of the Federal or subsequent compliance reports, as
The Federal Trade Commission Trade Commission Act from April 2012 requested. Part VIII is a provision
(‘‘Commission’’) has accepted, subject to through April 2013 by failing to ‘‘sunsetting’’ the order after twenty (20)
final approval, an agreement containing adequately disclose that survey years, with certain exceptions.
a consent order from Practice Fusion, responses would be made publicly The purpose of this analysis is to aid
Inc. (‘‘Practice Fusion’’). available on Patient Fusion’s healthcare public comment on the proposed order.
The proposed consent order has been provider review Web site. This fact, It is not intended to constitute an
placed on the public record for thirty according to the proposed complaint, official interpretation of the complaint
(30) days for receipt of comments by would be material to consumers in or proposed order, or to modify in any
interested persons. Comments received deciding whether or how to respond to way the proposed order’s terms.
during this period will become part of the survey. The Commission’s
the public record. After thirty (30) days, By direction of the Commission.
complaint alleges that Practice Fusion’s
the Commission will again review the Donald S. Clark,
failure to adequately disclose this
agreement and the comments received, material information is a deceptive act Secretary.
and will decide whether it should or practice in violation of Section 5. [FR Doc. 2016–14091 Filed 6–14–16; 8:45 am]
withdraw from the agreement or make The proposed order contains BILLING CODE 6750–01–P
final the agreement’s proposed order. provisions designed to prevent Practice
Since 2007, Practice Fusion has Fusion from engaging in the same or
provided services for healthcare similar acts or practices in the future. FEDERAL TRADE COMMISSION
providers. Since 2007, its core service Part I of the proposed order prohibits [File No. 151 0172]
has been a cloud-based electronic health Practice Fusion from misrepresenting
record (‘‘EHR’’) that allows healthcare the extent to which it uses, maintains, Energy Transfer Equity, L.P. and The
providers in the ambulatory/out-patient and protects the privacy and Williams Companies, Inc.; Analysis To
setting to store and utilize health confidentiality of any covered Aid Public Comment
information. In 2009, Practice Fusion information, including the extent to
launched the Patient Fusion Web site, which covered information is made AGENCY: Federal Trade Commission.
www.patientfusion.com (‘‘Patient publicly available. ACTION: Proposed consent agreement.
Fusion’’), with an online portal that Part II of the proposed order requires
allows patients, who have been granted SUMMARY: The consent agreement in this
Practice Fusion, prior to making any
access by their healthcare providers, to matter settles alleged violations of
consumer’s covered information
view, download, and transmit to other federal law prohibiting unfair methods
publicly available, to (A) clearly and
providers their health information and of competition. The attached Analysis to
conspicuously disclose to the consumer,
send and receive secure messages Aid Public Comment describes both the
separate and apart from ‘‘privacy
directly to their providers. policy,’’ ‘‘terms of use’’ page, or similar allegations in the complaint and the
Practice Fusion planned to launch a document, that such information is terms of the consent orders—embodied
public-facing healthcare provider being made publicly available; and (B) in the consent agreement—that would
directory portion of the Patient Fusion obtain the consumer’s affirmative settle these allegations.
Web site in 2013. The directory would, express consent. DATES: Comments must be received on
among other things, allow current and Part III of the proposed order or before July 11, 2016.
prospective patients to read patient prohibits Practice Fusion from ADDRESSES: Interested parties may file a
reviews of providers. To populate this displaying any healthcare provider comment at https://
Web site with reviews, starting on April review information obtained from ftcpublic.commentworks.com/ftc/
5, 2012, Practice Fusion sent emails to consumers between April 5, 2012 and energytransferequityconsent online or
the patients of its healthcare provider April 8, 2013. Part III of the proposed on paper, by following the instructions
clients soliciting those patients to take order also prohibits Practice Fusion in the Request for Comment part of the
surveys to rate and review their from maintaining such information, SUPPLEMENTARY INFORMATION section
provider. The email—and the survey except for review and retrieval by its below. Write ‘‘In the Matter of Energy
itself—suggested that the health care healthcare provider customers, or their Transfer Equity, L.P.,—Consent
provider was directly seeking the survey respective agents, contractors, assigns, Agreement; File No. 151 0172’’ on your
responses to improve the consumer’s or as permitted to comply with comment and file your comment online
experience on future visits. Neither the applicable law, regulation, or legal at https://ftcpublic.commentworks.com/
email nor the survey clearly indicated process. ftc/energytransferequityconsent by
that the reviews would be posted Parts IV through VIII of the proposed following the instructions on the web-
publicly. Practice Fusion solicited order are reporting and compliance based form. If you prefer to file your
reviews for a full year—collecting provisions. Part IV requires comment on paper, write ‘‘In the Matter
information from over 600,000 patients acknowledgment of the order and of Energy Transfer Equity, L.P.,—
during that time—before launching the dissemination of the order now and in Consent Agreement; File No. 151 0172’’
ehiers on DSK5VPTVN1PROD with NOTICES

review service on April 8, 2013, at the future to persons with supervisory on your comment and on the envelope,
which time all of the reviews previously responsibilities relating to the subject and mail your comment to the following
collected were posted publicly on the matter of the order. Part V ensures address: Federal Trade Commission,
Internet. Many of the reviews contained notification to the FTC of changes in Office of the Secretary, 600
highly sensitive information, combined corporate status and mandates that Pennsylvania Avenue NW., Suite CC–
with identifying information, indicating Practice Fusion submit an initial 5610 (Annex D), Washington, DC 20580,
that many patients likely thought they compliance report to the FTC. Part VI or deliver your comment to the

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Document Created: 2016-06-15 02:21:29
Document Modified: 2016-06-15 02:21:29

Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Notices
Action		Proposed consent agreement.
Dates		Comments must be received on or before July 8, 2016.
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.
FR Citation		81 FR 39048