Commonwealth Court Clarifies Confidentiality Requirement in Hydraulic Fracturing Law

The state law requiring well operators to disclose the chemicals used in hydraulic fracturing has been a subject of discussion within Pennsylvania’s health care community, as well as within the physician community since its enactment in 2012. In particular, physicians who treat patients in areas with a high level of fracturing have asked for clarification of this issue.

On July 18, 2014, the Commonwealth Court issued an opinion in which it clarified confidentiality requirements in a state law that provides physicians with access to chemicals used in hydraulic fracturing. The opinion was issued in Robinson Township v. Commonwealth, a broad challenge to multiple provisions in Act 13 of 2012, which regulates hydraulic fracturing. One of the plaintiffs, Mehernosh Khan, MD, challenged the confidentiality requirements, arguing that the restrictions violated the state constitution.

Dr. Khan expressed concern in his complaint that the Act precluded physicians from sharing critical information with other health care professionals in the course of caring for a patient. Although the court ruled against Dr. Khan’s constitutional claims, the opinion states: “there is no indication in the statute that [the required confidentiality agreement] precludes a physician from sharing the disclosed confidential and proprietary information with another physician for purposes of diagnosis or treatment or from including such information in a patient’s medical records.”

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.” The Commonwealth Court opinion is consistent with this interpretation of the law.

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 has supported legislative measures to address the need for that clarification, including Senate Bill 544.