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Senate of Pennsylvania
Session of 2013 - 2014 Regular Session


Posted: January 9, 2013 04:09 PM
From: Senator Daylin Leach
To: All Senate members
Subject: Physician access to and disclosure of chemicals in Marcellus Shale hydro-fracking
I will be re-introducing legislation to clarify the rights and responsibilities of physicians and other health care professionals as set forth in the recently passed Act 13, relating to Marcellus Shale extraction.

As you are probably aware, some controversy has arisen since the enactment of this law relating to the ability of physicians and other medical professionals to treat patients who may be suffering from exposure to chemicals in fracking fluid.

The law, as written, allows drilling companies to withhold from the public the composition of fracking fluid ("the information") if they deem it to be "proprietary information". The Act contains an exception for "Health Professionals" who request the information "in writing" in connection with treating a patient, or if there is a medical emergency, in which case they can request the information verbally. In either case the Health Professional must sign a written "confidentiality agreement".

In a non-emergency, the confidentiality agreement must be executed prior to the information being released. In the case of an emergency, the information may be released based solely on a verbal promise of confidentiality, with the written confidentiality agreement required to be signed by the health professional upon request.

Act 13, as written, raises a number of issues which impede the timely and appropriate provision of health care to patients, and put health care professionals needlessly at legal risk. Specifically:

1. The Act is silent on who the health care professional who has signed the confidentiality agreement may themselves disclose the information to. May a physician share the information with a fellow physician, or a nurse, or even the patient who has not signed, or refuses to sign a confidentiality agreement with a drilling company?

2. May the health care professional share the information with public health officials or the public at large if he or she believes that the information provided exposes a broader public-health risk.

3. In a given situation, it may not be clear which drilling company would be the appropriate party with whom to execute a confidentiality agreement. If, for example, a person lives near a drill owned by one company, but spends a lot of time at the home of a significant other which is located near another drill owned by a different company, who does that person's doctor need to execute an agreement with? Which company can enforce the confidentiality agreement in the event of a breach?

As you can see, the act is poorly drafted from the perspective of not only health care professionals and the public at large, but from the perspective of the drilling industry as well.

In some press articles recently published on this matter, the administration argued that these ambiguities in the act were not intended and further, it was not the intent of the administration to impede timely and thorough medical treatment. So it is my hope and belief that they will support this clarifying language.

Specifically, this bill will do the following:

1. Create a clearer and more comprehensive "medical necessity" exception whereby anytime a health care professional requests verbally or in writing, information regarding the content of fracking fluid, the company to whom the request was made must provide that information to that health care professional immediately, so long as the health professional represents that said information is relevant to the treatment or diagnosis of a patient.

2. No written or verbal confidentiality agreement shall be required prior to the disclosure of information to a requesting health care professional, so long as said health care professional represents verbally or in writing that the information is being requested for the purpose of treating or diagnosing a patient.

3. A Health Care Professional receiving the information, may share said information with any other health care professional necessary to facilitate the treatment of the patient, as well as the patient him or herself, and the patient's spouse, children, parents, next of kin, power of attorney or domestic partner.

4. A Health Care professional who believes that a public health risk as posed by the information he receives, may disclose said relevant information to public health officials at the local, state or federal level, as well as, in the case of an emergency, the public-at-large.

Introduced as SB544