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Pennsylvania Senate Considers Broadening Disclosure of Coronavirus Testing Records

As we all struggle to understand the full scope of the COVID-19 Coronavirus outbreak and the best way to fight this ubiquitous public health threat, the Pennsylvania Senate is considering revising long-standing public health legislation to provide new tools to help us strengthen our response.  One such measure, proposed by Pennsylvania State Senator Doug Mastriano on April 20, 2020, seeks to modernize the Pennsylvania Disease Prevention and Control Law of 1955 by easing the restrictions that are preventing Pennsylvania’s Department of Health from publicizing data and details concerning the ongoing COVID-19 pandemic.

The Disease Control and Prevention Law of 1955, originally enacted to prevent the spread of sexually transmitted diseases, is now being applied to combat COVID-19.  The law provides the Governor and the Secretary of the Department of Health the authority to close non-life sustaining businesses in Pennsylvania as a measure to control the spread of COVID-19. Under the law, the Secretary of Health also has the authority to issue orders for isolation, quarantine and other control measures, such as the closure orders under which we are now living in Pennsylvania.

Under the existing law, state and local health authorities could use the data contained in disease reports and other records, subject to strict supervision by the health authorities, for limited research purposes. However, under the current law, public health officials must keep records and reports of contagious diseases strictly confidential.  State and local health authorities may not disclose reports of diseases, any records maintained as a result of any action taken in consequence of such reports, or any other records maintained pursuant to this act or any regulations, to any person who is not a member of the department or of a local board or department of health.  Pennsylvania officials have referenced this law in order to keep coronavirus statistics confidential and have withheld from the public coronavirus testing statistics in order to protect a patient’s need for privacy.

The proposed changes to the Disease Prevention and Control Law would allow disclosure of information regarding records and reports of contagious diseases if there is a declaration by the Governor of a disaster emergency under 35 Pa. C.S. § 7301(c) (relating to general authority of Governor) related to a pandemic.  If enacted into law, these measures would lift disclosure restrictions during an emergency declaration.  Under these proposed changes to the Disease Prevention and Control Law, state health officials could provide the public with the total number of samples tested and the number of people quarantined after possible exposure.  Proponents of this change believe that lack of information-sharing at the initial stages of the COVID-19 outbreak potentially exacerbated the crisis.

It is unclear how individual or patient-specific the COVID-19 information disclosed to the public might be under the proposed amendments.  From the discussions surrounding the proposed changes, it appears that the intention is to make broader disease reports and testing statistics available to the public to make us more aware of the impact of the disease.  The language of the proposed changes is broad; if adopted, the new law will allow release of reports of diseases and will no longer protect any records maintained as a result of any action taken in consequence of such reports, or any other records maintained pursuant to this act or any regulations during an emergency. As this proposal affects potentially very sensitive and private health information, it is important to be aware of these proposed changes.  We will continue to update you on any changes to this important law.

For further information contact Lamb McErlane PC, 610-430-8000.

Guy A. Donatelli is a partner in the Litigation Department at Lamb McErlane PC. He concentrates his practice on employment, education and commercial litigation, representing individuals, businesses and municipalities in employment, business and land use disputes. 610-701-4419. gdonatelli@lambmcerlane.com.