Practice Fusion Settles FTC Charges Over “Deceptive” Consumer Marketing

Posted on June 20, 2016 I Written By

Anne Zieger is veteran healthcare consultant and analyst with 20 years of industry experience. Zieger formerly served as editor-in-chief of FierceHealthcare.com and her commentaries have appeared in dozens of international business publications, including Forbes, Business Week and Information Week. She has also contributed content to hundreds of healthcare and health IT organizations, including several Fortune 500 companies. Contact her at @ziegerhealth on Twitter or visit her site at Zieger Healthcare.

In what may be a first for the EMR industry, ambulatory EMR vendor Practice Fusion has settled Federal Trade Commission charges that it misled consumers as part of a campaign to gather reviews for its doctors.

Under the terms of the settlement, Practice Fusion agreed to refrain from making deceptive statements about the privacy and confidentiality of the information it collects from consumers. It also promised that if it planned to make any consumer information publicly available, it would offer a clear and conspicuous notice of its plans before it went ahead, and get affirmative consent from those consumers before using their information.

Prior to getting entangled in these issues, Practice Fusion had launched Patient Fusion, a portal allowing patients whose providers used its EMR to download their health information, transmit that information to another provider or send and receive messages from their providers.

The problem targeted by the FTC began in 2012, when Practice Fusion was preparing to expand Patient Fusion to include a public directory allowing enrollees to search for doctors, read reviews and request appointments. To support the rollout, the company began sending emails to patients of providers who used Practice Fusion’s EMR, asking patients to review their provider. In theory, this was probably a clever move, as the reviews would have given Practice Fusion-using practices greater social credibility.

The problem was, however, that the request was marketed deceptively, the FTC found. Rather than admitting that this was an EMR marketing effort, Practice Fusion’s email messages appeared to come from patients’ doctors. And the patients were never informed that the information would be made public. And worse, a pre-checked “Keep this review anonymous” only withheld the patient’s name, leaving information in the text box visible.

So patients, who thought they were communicating privately with their physicians, shared a great deal of private and personal health information. Many entered their full name or phone number in a text box provided as part of the survey. Others shared intimate health information, including on consumer who asked for dosing information for “my Xanax prescription,” and another who asked for help with a suicidally depressed child.

The highly sensitive nature of some patient comments didn’t get much attention until a year later, when EMR and HIPAA broke the story and then Forbes published a follow up article on the subject. After the articles appeared, Practice Fusion put automated procedures in place to block the publication of reviews in which consumers entered personal information.

In the future, Practice Fusion is barred from misrepresenting the extent to which it uses, maintains and protects the privacy or confidentiality of data it collects. Also, it may not publicly display the reviews it collected from consumers during the time period covered by the complaint.

There’s many lessons to be gleaned from this case, but the most obvious seems to be that misleading communications that impact patients are a complete no-no. According to an FTC blog item on the case, they also include that health IT companies should never bury key facts in a dense privacy policy, and that disclosures should use the same eye-catching methods they use for marketing, such as striking graphics, bold colors, big print and prominent placement.