On June 30, 2014, a federal court judge dismissed a physician’s constitutional challenge to confidentiality requirements in a state law that expressly provides physicians with access to chemicals used in hydraulic fracturing. Alfonso Rodriguez, MD, claimed in his lawsuit that the confidentiality requirements prevented him from complying with his ethical responsibilities. Federal District Judge Richard Caputo ruled that Dr. Rodriguez’s claimed injuries were too speculative for him to pursue his constitutional challenge.
The state law at issue requires well operators to disclose chemicals that are used in hydraulic fracturing on the Chemical Disclosure Registry public website. The identity or concentration of the chemical may be withheld from the public website if the well operator, service provider, or vendor asserts it is a trade secret or confidential proprietary information. If the identity of the chemical is withheld, the disclosure must include the chemical family or similar description associated with the chemical.
A well operator, service provider, or vendor who withholds hydraulic fracturing chemical information from the public website must disclose the information to health care professionals who need the information for diagnostic or treatment purposes when the health care professional attests to the need and agrees to confidentiality. The request, including the statement of need and the confidentiality agreement ordinarily must be made in a signed writing, except if a provision is made for emergencies.
A well operator, service provider, or vendor must immediately disclose the withheld information to a health professional seeking the information for emergency medical care upon the health professional’s verbal acknowledgment that the information may not be used for other purposes and must be maintained as confidential. Upon request, the health care professional must follow-up with a written statement of need and confidentiality agreement.
In April 2012, then-Secretary of the Pennsylvania Department of Health, Eli N. Avila, MD, sent a letter to PAMED’s president at that time, Marilyn J. Heine, MD, that addressed the disclosure issue for physicians. Dr. Avila said, “Inherent in their right to receive this information is the ability to share that information with the patient, with other physicians and providers including specialists assisting or involved with the care of the patient.”
In 2013, the PAMED House of Delegates, recognizing physicians’ continuing concerns about the need for clarification on the confidentiality requirements, directed that PAMED “urge the state legislature to clarify the ‘right to know’ rules of physician disclosure of chemicals and other agents” used in hydraulic fracturing. PAMED supports legislative measures to address the need for that clarification, including Senate Bill 544.