As you can tell from reading the StateImpact Pennsylvania site today, there is a growing divide over whether or not the new impact fee, known as Act 13, puts a gag order on doctors treating people who may have been exposed to drilling-related chemicals.
StateImpact Pennsylvania’s Susan Phillips took a look at controversy in the weeks after the law passed, and is working on a detailed report about the legislation’s implications. But, given the attention this section has been receiving this week, it’s worth taking another look at what the legislation actually says.
You can find the relevant section on page 98 of the final bill.
The new legislation requires drillers to provide the state with a list of chemicals used during hydraulic fracturing, with the exception of chemicals the energy companies deem “trade secrets.” Every driller uses a different combination of chemicals to frack, and don’t want competitors to see their ingredients and ratios. If a driller claims a trade secret, it doesn’t have to post the provision online.
The controversial language allows doctors to access that proprietary information, if they think proprietary chemicals are directly related to an illness they’re treating.
Nothing controversial about that.
What’s controversial: drilling companies only need to hand the information over “if the health professional executes a confidentiality agreement. …”
The law’s next paragraph provides a bit more detail on the arrangement. If the doctor deems the situation an emergency, the drilling company “shall immediately disclose the information to the health professional upon a verbal acknowledgement by the health professional that the information may not be used for purposes other than the health needs asserted and that the health professional shall maintain that information as confidential.” The driller can later ask for a written confidentiality statement.
Governor Corbett’s health secretary, Eli Avila, told the Pennsylvania Medical Society this confidentiality agreement won’t stop doctors from sharing information with other medical professionals, writing, “inherent in [physicians’] right to receive this [proprietary] information is the ability to share the information with the patient, with other physicians, and providers including specialists assisting and involved with the care of the patient. Further, reporting and information sharing with public health and regulatory agencies such as the Department of Health is necessary and permitted.”
But as Drexel Univesity’s Barry Furrow told StateImpact Pennsylvania today, the legislation’s language is vague. There’s no definition of who is and isn’t covered by the confidentiality agreement. It only says “maintain that information as confidential.”
“This confines doctors too much,” says Furrow. “It takes public health out of the picture and leaves doctors unprotected, whatever legislators may say.”
Again, it’s important to point out this only applies to chemicals deemed “trade secrets,” which are a small percentage of chemicals used during the fracking process. The new law requires companies to publicly post the vast majority of chemical information online. Right now, all of that information is private.
We’ll have more on this issue over the coming days. In the meantime, read the actual legislative language below:
A vendor, service company or operator shall identify the specific identify and amount of any chemicals claimed to be a trade secret or confidential proprietary information to any health professional who requests the information in writing if the health professional executes a confidentiality agreement and provides a written statement of need for the information indicating all of the following:
-the information is needed for the purpose of diagnosis or treatment of an individual.
-The individual being diagnosed or treated may have been exposed to a hazardous chemical
-knowledge of the information will assist in the diagnosis or treatment of an individual.
If a health professional determines that a medical emergency exists and the specific identity and amount of any chemicals claimed to be a trade secret or confidential proprietary information are necessary for emergency treatment, the vendor, service provider or operator shall immediately disclose the information to the health professional upon a verbal acknowledgement by the health professional that the information may not be used for purposes other than the health needs asserted and that the health professional shall maintain that information as confidential. The vendor, service provider or operator may request, and the health professional shall provide upon request, a written statement of need and a confidentiality agreement from the health professional as soon as circumstances permit, in conformance with regulations promulgated under this chapter.