Fracks in the Medical Gag

doctor-gagOne of more controversial provisions of Pennsylvania’s ACT 13 is the inclusion of what has become known as the Medical Gag Rule.

Chemical composition, with the exception of those deemed as “trade secrets” are supposed to be listed on a web site called FracFocus.org.   Pennsylvania is 1 of 11 states which require drillers to use FracFocus for report purposes.

In the event of an emergency and/or the need to treat a patient suspected of being exposed to the “fracking” chemicals, Medical Professionals need to know what chemicals may be involved, including those deemed as “trade secrets”. Act 13 contains language based on Colorado Oil and Gas Conservation Commission (CCOGCC) regulations for chemical disclosure.

Section 3222.1 Hydraulic fracturing chemical disclosure requirements, Items 10 states: (emphasis added)

(10) A vendor, service company or operator shall identify the specific identity 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:

(i) The information is needed for the purpose of diagnosis or treatment of an individual.
(ii) The individual being diagnosed or treated may have been exposed to a hazardous chemical.
(iii) Knowledge of information will assist in the diagnosis or treatment of an individual.

The crux of the controversy is the CONFIDENTIALITY AGREEMENT. (Click here to view Colorado Oil and Gas Conservation Commission (CCOGCC) Confidentiality Agreement Form 35)

Since 2012, when Act 13 became law, two doctors have been filed lawsuits regarding the Confidentiality Agreement requirement. It was argued that the confidentiality requirement is unconstitutional and interferes with the ability to diagnose and treat patients who may have been affected by fracking liquids. Furthermore the gag provision impedes a doctor’s ethical obligation to share information with other medical providers that can improve patient care.

In the first case, Doctor Mehernosh Khan claimed the medical gag would affect his ability to treat his patients. A Pennsylvania Commonwealth Court declined to hear the case based on the fact that Dr. Khan has not been directly affected by the law since none of his patients have been exposed to frack fluid.   In December 2013, as part of a lawsuit regarding the medical gag and zoning issues contained in ACT 13, the Pennsylvania Supreme Court reversed the Commonwealth Court’s decision.

Following the Pennsylvania Supreme Court decision, Dr. Alfonso Rodriguez filed a lawsuit. Dr. Rodriguez states his First Amendment right to free speech has be violated by Act 13. One of Dr. Rodriguez’s patients is an oil and gas worker who was exposed to a chemical laden fluid as the result of a well blowout. The patient required extensive treatment due to acute kidney failure. Dr. Rodriguez contends that he now has to provide legal documentation to his patients informing them that he may not be able to share all elements of their treatment plan with them due to restrictions put in place by Act 13. The state Department of Health tried to calm fears in the medical community that Act 13 would not affect patient care through a letter sent to the state’s medical association. The Pennsylvania Medical Society has publicly stated it is not concerned with Act 13’s gag order.

In March 2015: (emphasis added)

A federal appeals court has upheld the dismissal of a lawsuit by a Pennsylvania doctor who challenged a state-imposed “medical gag rule” that bars physicians from revealing information they receive from Marcellus Shale drillers about fracking chemicals.

Dr. Alfonso Rodriguez, a nephrologist from Dallas in Luzerne County, simply doesn’t have legal standing to bring the case, the U.S. Court of Appeals for the Third Circuit concluded in a ruling issued this week.

That decision backs an order by U.S. Middle District Judge A. Richard Caputo handed down last year dismissing Rodriguez’s suit against the secretary of the state Department of Environmental Protection and Attorney General Kathleen Kane.

Caputo dismissed the doctor’s suit after noting Rodriguez didn’t allege that he had been in any situations where he needed or had requested fracking chemical information or had been asked to sign a confidentiality agreement. Therefore, Rodriguez had not suffered the type of harm needed to give him legal standing to sue under federal law.

In the appeals court’s opinion backing Caputo’s decision, Judge Marjorie O. Rendell noted that a driller’s fracking chemical makeup is considered to be proprietary business information that would not be shared with competing firms.

Where’s the Confidentiality Agreement?

confidentialityKeeping in mind that Act 13 became law in February 2012, and it is now 3 years later, a system or procedure for requesting information on fracking chemicals, including the ability to obtain the confidentiality agreement should be in place.

By now there should be a phone number, email, web link or similar to enable medical professionals to quickly request the information somewhere.

There isn’t.

Commonsense would say, at the very least, information on how to do this would be available to medical professionals through hospitals.   While hospitals are aware of the Confidentiality Agreement requirement, they do not know who to contact to obtain the agreement.

Maybe the doctor needs to contact the driller? Rodriquez’s attempts to contact a driller with phone calls, certified postal mail, faxes and personal visits to the driller’s local office have resulted in a run around. No one in the driller’s office could help him, and Rodriquez was told maybe there was someone, but that someone was out of town and would not be back for a couple of weeks.

Surely the Pennsylvania Department of Environmental Protection (DEP) would know who and how to contact someone.

And the Wild Goose Chase was off and running:

  • Searches on DEP website were futile, nothing there about confidentiality agreements or how a medical professional would be able to obtain information.
  • Harrisburg DEP office told Rodriguez to call the district DEP office. The district DEP office knew nothing and was unable to help.
  • Rodriquez was referred to Pennsylvania Recycling, they knew nothing.
  • The Pennsylvania Department of Health said the Pennsylvania Department of State handles all inquiries regarding the oil and gas industry.
  • Pennsylvania Department of State said to talk to the Pennsylvania State Board of Medicine, who in turn said to try the Commonwealth Information Line.

What’s next? Maybe the Occupational Safety & Health Administration (OSHA) can help?

According to OSHA Toxic and Hazardous Substances, Standard Number: 1910.1020 – Access to employee exposure and medical records:

“…to provide employees and their designated representatives a right of access to relevant exposure and medical records; and to provide representatives of the Assistant Secretary a right of access to these records

The catch with the OSHA standard is it only covers employees. What if a patient is not an employee of a drilling corporation and has been exposed to the chemicals?

How Much Does a Driller Really Know?

In Western Pennsylvania a family is trying to find out what chemicals contaminated their private water well.   The driller in question is Range Resources. A judge ordered Range to provide the family’s attorney with a list of chemicals. Range was unable to do so.

Per A Motion for Contempt and for Sanctions in the Form of An Adverse Inference Docket No. 2011-149-R:

range-28range-29-30What’s at stake?

To review a few factors are involved:

  • the lack of a procedure or system for medical professionals to request the chemical composition of fracking fluids used at a well site
  • a Pennsylvania confidentiality agreement apparently doesn’t exist
  • Pennsylvania DEP and other state departments don’t know anything about this except that a medical professional must sign a confidentiality agreement that doesn’t exist
  • Drillers do not know what chemicals they are using, so even if there were a system in place and a confidentiality agreement existed, the information a medical professional would receive would be incomplete or incorrect.

The inability of a medical professional to obtain the information in an accurate, complete and timely manner is compromising his/her ability to treat a patient effectively.

Ultimately, your health and possibly your life are at stake.
©2015 by Dory Hippauf

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4 comments

  1. […] Medical Non-Disclosure Agreement Act 13 states drillers must disclose the fracking chemicals to medical and emergency personnel. To protect the “trade secrets”, medical and emergency personnel must sign a non-disclosure agreement. This medical non-disclosure agreement has become known as the medical gag. […]

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