Last Updated: Oct 4, 2016
By Michael D.I. Siget, JD, MPA, PAMED's Legislative & Regulatory Counsel
Court rules that two sections of Act 13 governing oil and gas regulation violate the Pennsylvania Constitution's provision prohibiting special interest laws
On Sept. 28, 2016, the Pennsylvania Supreme Court issued an opinion invalidating certain provisions of Act 13. This law was originally passed in 2012 and repealed parts of the existing Oil and Gas Act of 1984 and created six new chapters in part to regulate Marcellus shale drilling.
At the heart of this appeal were two of those chapters (32 and 33), part of which contained two sections that became known as the "medical or physician gag rule." In its opinion, the Supreme Court ruled that the medical gag rule constituted special legislation which violated the Pennsylvania Constitution.
Sections 3222.1(b)(10) & (11) – "The Medical Gag Rule"
As part of this case (1), Dr. Mehernosh Khan challenged the non-disclosure provisions of Act 13 on the basis that they violated the prohibition on special laws contained in Article III, Section 32 of the Pennsylvania Constitution. Article III, Section 32 prohibits the General Assembly from enacting "certain local and special laws" that provide preferential treatment to single groups or entities.
Section 3222.1(b)(10) of the law required health professionals to sign confidentiality agreements in order to obtain information from a vendor, service company or operator as to the specific identity and amount of chemicals being using in the fracking process that were identified as a trade secret or confidential proprietary information.
However, a health professional could only obtain this information if that professional declared that the information was 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; and knowledge or information of those chemicals is needed to assist in the diagnosis or treatment of that individual.
Section 3222.1(b)(11) of the law authorized a health professional to request this information orally if the health professional determined that a medical emergency existed. However, the vendor, service provider or operator was authorized to require the health professional to provide a written statement of need and a confidentiality agreement to comply with regulations created under this law.
During this appeal, four main arguments were made against the medical gag rule:
- These sections restricted a physician's access to, and ability to share, information regarding chemicals the natural gas industry deemed to be trade secrets or confidential proprietary information, and therefore served no legitimate state purpose, as they interfered with a physician's ability both to treat patients and to contribute to the development of public health knowledge.
- Physicians are required by law to make written records of their diagnoses and findings with respect to the cause of a patient's illness or disease. These sections would prohibit a physician from recording such information. It was argued that even if physicians obtain information about a particular chemical to which a patient had been exposed, they were still prohibited from sharing that information with their patients.
- These sections offered no guidance as to what may or may not be contained in the confidentiality agreements which physicians were required to execute.
- These sections barred physicians from access to information that could be used for conducting public health assessments and studies. Robinson, pgs. 54-57.
The net effect of these arguments was that the medical gag rule granted the gas industry preferential treatment that no other industry had been provided, and that the Commonwealth had not offered any legitimate reasons to justify why the gas industry needed such special protections.
The Supreme Court's Opinion
The Court ruled that the sections in question did not address what a physician could do with the information once it was in the physician's possession. As the Court noted, "Neither subsection provides any guidance to a health care professional who comes into possession of such information as to whether he or she may then permissibly disclose it to other health care professionals as part of the treatment of a patient." Id. at 61.
The Court found that section (b)(10) does not permit the uninhibited disclosure of medial information between health professionals, or from health professionals to their patients, in non-emergency medical treatment situations. Id. at 62.
The Court likewise found that section (b)(11) does not provide any assurance to a health professional that he or she may permissibly disclose the information to other health professionals as part of the emergency medical treatment process. Id.
The Supreme Court stated:
- Our independent interpretation of the operation of these statutory provisions confirms Citizens' assertions regarding the sweeping breadth of the restrictions imposed by Sections 3222.1(b)(10) and (11) on health professionals' ability to obtain, utilize, or further disclose confidential or proprietary information regarding chemicals used by the oil and gas industry in the fracking process. In considering the question of whether these statutes violate Article III, Section 32, the salient constitutional inquiry is not whether these restrictions apply uniformly to the entire oil and gas industry, or to all health professionals, as a class, which was found by the Commonwealth Court, and presently endorsed in this appeal by the Attorney General. Rather, the pivotal consideration is whether these sections confer on the oil and gas industry, as a class, special treatment not afforded to any other class of industry, and whether this special treatment "rest[s] upon some ground of difference, which justifies the classification and has a fair and substantial relationship to the object of the legislation." Id. at 64, citing Robinson II, 83 A.3d at 987; Pennsylvania Turnpike Commission, 899 A.2d at 1095.
The Court found that it appeared that no other industry in the Commonwealth had been "statutorily shielded in this manner by the imposition of stringent limitations and conditions on the access to, and use by, health professionals of information pertaining to chemicals, substances, or materials used in its operations claimed to be trade secrets or confidential proprietary information. Thus, Sections 3222.1(b)(10) and (11) grant the oil and gas industry, as a class, special protections for its trade secrets and confidential proprietary information which is enjoyed by no other class of industry." Id. at 64.
The Court ruled that while the Commonwealth can provide an industry statutory protections for its trade secrets and confidential proprietary information, the Commonwealth failed to identify any difference between the oil and gas industry and the "myriad of other industries operating within our Commonwealth, many of which use chemicals in their manufacturing process, which justify these heavy constraints on health professionals' access to, and ability to use or further disclose, this type of information while carrying out the vital responsibilities of their vocation, and we cannot reasonably hypothesize any such justification." Id. at 64-65.
Based upon its findings, the Court declared these two sections void and prohibited them from further application and enforcement.
What does this all mean?
Based on the Supreme Court's ruling, the two sections that became known as the medical or physician gag rule are no more. However, by removing those two sections, the Supreme Court also removed the authorization for physicians to obtain this information in the first place.
As a process was never fully implemented for this to occur, it is unclear then whether physicians can now ask for this information going forward.
State Rep. Dan Frankel (D-Allegheny), who has sponsored legislation aimed at repealing that provision of Act 13, stated: "Patients trust that their doctor is telling them the truth, the whole truth, and that their health is the doctor's primary concern.. Patients shouldn't worry that they are on the receiving end of a political agenda when they go to the doctor. And doctors and nurses shouldn't have to choose between caring for their patients or following a law that would have forced them to practice bad medicine."
As the court noted, this does not mean that the legislature cannot confer special protections on a certain industry, including gag orders on professionals. However, to do so, they must identify why these special protections are needed for that industry as opposed to the numerous other industries operating within the Commonwealth. This ruling also does not mean that health professionals can start publicizing trade secrets about chemicals that they may obtain from a fracking company.
PAMED will continue to monitor this situation, particularly if the legislature starts to discuss new laws aimed at regulating the oil and gas industry.
 Robinson Twp., et al v. PUC (Aplt.), AG & DEP, Nos. 104 & 105 MAP 2014. The part of the opinion concerning the medical gag rule starts on the bottom of page 52.