Pennsylvania

Energy. Environment. Economy.

What You Need To Know About Act 13′s Confidentiality Requirements

Scott Detrow / StateImpact Pennsylvania

A truck delivers fracking fluid to a Susquehanna County recycling center

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.

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