“There is a thin line that separates laughter and pain, comedy and tragedy, humor and hurt.” Erma Bombeck

Friends,

After spending two days with my extended family this week, there is much to share. However, this blog post is not about that. Set the way back machine to December 2013, and the issue of chemical disclosure. During the meeting,  Blue Ridge Environmental Defense League and others raised concerns related to a "gag" order on medical professionals. Mining and Energy Commissioners Jim Womack, Dr. Ray Covington, and Dr. Marva Price dismissed these concerns, apparently functioning under the mistaken perception that the Health Insurance Portability and Accountability Act (HIPAA) would pre-empt any "Trade Secrets" claim. 

Thinking back on my Human Services training, I remembered something about this:  

HIPAA Link here: Health Information Privacy. 

" (e) PROTECTION OF TRADE SECRETS.--Except as otherwise required by law, a standard adopted under this part shall not require disclosure of trade secrets or confidential commercial information by a person required to comply with this part. 

Examples:

Caveon Test security

Tests typically are protected by copyright law, and test authors and publishers are reluctant to give permission to release test data. Of critical importance to these parties is the maintenance of the integrity of the test so that it will continue to be a valid and useful tool. Authors and publishers explain that the dissemination of record forms (which may disclose test questions and answers) may result in the “next” patient having knowledge of test content prior to testing.  This may lead to invalid recommendations. To explain further: when the client has knowledge of the content or the underlying constructs, and/or perhaps the responses, that person is no longer comparable to a naïve normative group. As a result, decisions, and diagnostic and treatment recommendations for this patient may no longer be valid when based on the normative distribution.

In past years, instances of exposure of test materials have been reported. The advent of the Internet has increased this risk through its ease of publishing and disseminating information to a broad audience. At times the exposed test content has been accompanied by coaching and hints so that clients could prepare their responses before being tested and thus have a better chance at winning a child custody case or qualifying for workman’s compensation or another program. After such exposure of the test, the practitioner is left not knowing whether or not his client is a naïve test taker, and thus, whether the comparisons to normative and research data are valid.

Protection of copyrighted material is addressed by The Standards for Educational and Psychological Testing and the Ethics Code."

In a letter to their customers, Psychological Assessment Resources, Inc. advised:

Link to statement here: PRA HIPAA Statement

"The wide spread dissemination of test materials (which may disclose test items and answers) 

would violate restrictions on health care providers’ use of PAR’s test materials, and would 

render test instruments invalid and therefore useless to the professional community and the 

general public. The U.S. Department of Health and Human Services (HHS), which is 

responsible for HIPAA, recently provided clarification related to this matter and stated in a letter 

that:  “Any requirement for disclosure of protected health information pursuant to the 

Privacy Rule is subject to section 1172(e) of HIPAA ‘protection of trade secrets’. 

As such, we confirm that it would not be a violation of the Privacy Rule for a 

covered entity to refrain from providing access to an individual’s protected health 

information, to the extent that doing so would result in a disclosure of trade secrets.” 

While interpretation of the trade secret clause under HIPAA is complex, on its face it appears that if a medical provider signs a confidentiality agreement-the yet to be revealed "Form X3"- with a manufacturer, vendor or service company, HIPAA itself may prevent that provider from disclosing business confidential information to their patient. What is crystal clear: when information is allowed to be withheld from the public we cannot take anything for granted, or laugh at concerns raised by communities who will be adversely affected by such subterfuge. We all know what assuming does.

Chemical Disclosure:Now you see it...now you don't.

"If a decision-making process is flawed and dysfunctional, decisions will go awry"

Carly Fiorina

"Treatment of injured children from school bus-tanker collision delayed 2 hours due to industry secrecy."

Friends,

Although the above photo from an early morning accident between a truck and a school bus did not involve fracking chemicals, Tuesday's decision by the Mining and Energy Commission on chemical disclosure elevates the likelihood of these kinds of headlines. 

Make no mistake about it- this is not a "disclosure" rule. Its not full disclosure when industry will still be allowed to hide behind the trade secret curtain. Tuesday's Mining and Energy Commission meeting was a now you see it-now you don't -ordeal with one clear objective-to move this rule. Most of the Commissioners had not seen the latest draft until Monday- some may not have even had a chance to review it before the meeting. There was new language, some of which was tabled when it became obvious that the train might be delayed getting to it's 3:15 destination, some of the good provisions added in December were removed, and some of the most troubling provisions were retained.

The rule as passed allows the industry to require that a medical provider agree to sign a gag order (the content of which has yet to be made public or discussed) before being allowed to receive information needed to treat their patients exposed to unknown chemicals. In contrast to current Department of Environment and Natural Resources policy, it allows the industry to be the holder of the records, with a two-hour window of time to get information to an emergency responder trying to take care of our families and our property in an emergency. They have to agree to sign a confidentiality agreement, too. This creates delay and unnecessary layers of bureaucracy.

"Fracking Industry Gets Government to Gag Doctors"
"Ohio Senate Wants to Gag Doctors to Protect Fracking Industry’s Bottom Line"

Standing to challenge a trade secret claim is limited, and it isn't clear from the current draft that an injured first responder or physician denied needed information would be able to bring a challenge. Current thinking by the Mining and Energy Commission is that challenges to a trade secret claim should be heard in the North Carolina Business Court. It costs 1000.00 to get into that venue, and is a complex and convoluted process that would almost certainly require the services of an attorney.

The unique property rights issues around fracking (forced pooling and severed estates) are also important here. In forced pooling, you can be forced to participate in a drilling unit, and to allow the retrieval of gas from under your property. But you have no right to know what is being pumped into the ground below your feet. If you live on a split estate, you are even more vulnerable, because someone else owns the mineral rights and the mineral rights trump the surface rights. There are currently no protections for landowners in place.

There are more problems with this rule. Regardless of how you feel about the issue, ask yourself, do you want to be the one waiting for treatment while first responders are wading through the bureaucracy trying to determine if its even safe to send their people in? Do you want your child to be waiting in the emergency room while their physician is trying to figure out how to treat them? The people of North Carolina deserve better.

NC fracking panel passes chemical disclosure rule