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FTC Approves Final Order against Practice Fusion for Patient Privacy Complaint

August 18, 2016
by Heather Landi
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The Federal Trade Commission (FTC) approved a final order resolving it’s complaint against electronic health records (EHR) vendor Practice Fusion following charges that the company misled consumers about the privacy of the information it collected.

As previously reported by Healthcare Informatics, the FTC announced a proposed settlement with San Francisco-based Practice Fusion back in June. The FTC had charged that the company misled consumers by soliciting reviews for their doctors, without disclosing adequately that the reviews would be publicly posted on the Internet. This resulted in the public disclosure of patients’ sensitive personal and medical information, according to the FTC.

After the proposed settlement, there was a 30-day comment period, and the FTC’s vote to approve the final order was unanimous, 3-0.

In a one-count complaint, the FTC alleges that Practice Fusion represented expressly or by implication that survey responses would be communicated to the consumer’s healthcare provider, but failed to adequately disclose that it also would publish the responses publicly. According to the FTC, that fact would have been material to consumers in deciding whether or how to respond to the survey. And, the complaint alleges that Practice Fusion’s failure to adequately disclose this information violated the FTC Act.

The settlement prohibits Practice Fusion from making deceptive statements about the extent to which it uses, maintains, and protects the privacy or confidentiality of the information it collects, and also requires the company, prior to making any consumers’ information publicly available, to clearly and conspicuously disclose this fact and obtain consumers’ affirmative express consent. The settlement also prohibits Practice Fusion from publicly displaying the reviews it collected from consumers during the time period covered by the complaint.

As part of the settlement, Practice Fusion that will consent to a 20-year privacy practice order.

And, according to FTC Secretary Donald Clark, if Practice Fusion violates the FTC’s final order, it will be liable for civil penalties of up to $40,000 per violation.

“Practice Fusion’s actions led consumers to share incredibly sensitive health information without realizing it would be made public,” Jessica Rich, director of the FTC’s Bureau of Consumer Protection, said in a prepared statement back in June. “Companies that collect personal health information must be clear about how they will use it – especially before posting such information publicly on the Internet.”

According to the complaint by the FTC, Practice Fusion made plans to launch a public-facing healthcare provider directory in 2013.  In order to be able to populate the directory with patient reviews, Practice Fusion began sending emails in April 2012 to patients of healthcare providers utilizing Practice Fusion’s electronic health records service.  The emails appeared to be sent on behalf of the patients’ doctors, and asked consumers to rate their provider “[t]o help improve your service in the future.”

Consumers who clicked on the five-star rating image in the e-mail were taken to an online survey form with questions about their recent medical visit. The survey included a text box where patients could enter any information they wished within a set character limit.  Because patients likely thought the information was only shared with their provider, many of them included in the text box their full name or phone number along with personal health information inquiries, according to the FTC complaint.

In its complaint, the FTC cites examples of patient information that then appeared in reviews publicly posted by Practice Fusion, such as one customer asking for information on dosing of “my Xanax prescription.”

In a Business Blog post released on the FTC site back in June, Lesley Fair, a senior attorney at the FTC, wrote that the terms of the settlement apply just to Practice Fusion, but noted that there are important lessons to be learned about consumer health privacy for vendors in the health IT industry.

 

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