Section 670.025 - Physician's Access to Material Safety Data Sheets(A)Introduction. 105 CMR 670.025 governs the manner in which physicians and other medical personnel may obtain and use Material Safety Data Sheets (MSDS's) pursuant to the provisions of M.G.L. c. 111F, § 20. Under M.G.L. c. 111F, § 20 an employer or manufacturer is required, under certain circumstances described in 105 CMR 670.025(B) and (C), to provide an MSDS or MSDS's immediately on a confidential basis to a physician who states in writing that his or her patient has a medical condition which may be the result of exposure to a toxic or hazardous substance manufactured by the manufacturer and/or processed, used or stored by the employer. The physician is then required to sign a confidentiality agreement on a form prescribed by the Commissioner. The provisions of 105 CMR 670.025 apply only with respect to patients who are or become employees or community residents as defined in 105 CMR 670.005, on or after the effective date of M.G.L. c. 111F.
Nothing in M.G.L. c. 111F or in 105 CMR 670.000 shall prevent an employer or manufacturer from voluntarily providing MSDS's to a physician or any other person.
An employer is not required to include, on an MSDS provided to a designated representative, the identity of the substance if the Commissioner or his designee has determined pursuant to 105 CMR 670.020 that the identity of the substance is a trade secret of the preparer of the MSDS. A physician who is a designated representative and who seeks an MSDS without such trade secret identity is not required to comply with the procedures specified in 105 CMR 670.025.
105 CMR 670.025(B), applies to the situation in which the patient for whose treatment or care MSDS information is sought is a former employee who may have been exposed to toxic or hazardous substances in the workplace. 105 CMR 670.025(C), applies to the situation in which the patient is a resident of the municipality in which a workplace is or was located which may have been the source of the patient's exposure. 105 CMR 670.025(D) and (E), contain additional provisions which apply to both situations.
(B)The Patient is a Former Employee. An employer or manufacturer who has manufactured, processed, used or stored a substance listed on the Massachusetts Substance List shall provide immediately on request an MSDS for such substance to a physician treating a former employee of said employer or manufacturer. The MSDS shall include the name of the substance even if the Commissioner has determined that the identity of the substance is a trade secret. However, an employer who is not the preparer of the MSDS shall not be required to include a trade secret name which the employer does not know. The employer or manufacturer shall include with the MSDS or MSDS's which it provides a copy of the Physician's Confidentiality Agreement for the physician to sign and return pursuant to 105 CMR 670.025(E).(C)The Patient is a Community Resident. (1) An employer or manufacturer who has manufactured, processed, used or stored a substance listed on the Massachusetts Substance List shall provide immediately on request an MSDS for such substance to a physician treating a resident of the municipality in which the employer's workplace is or was located. If the physician signs the emergency statement as set forth in 105 CMR 670.025(C)(2), then the MSDS shall include the name of the substance even if the Commissioner has determined that the identity of the substance is a trade secret. However, an employer who is not the preparer of the MSDS shall not be required to include a trade secret name which is not included on the MSDS. The employer or manufacturer shall include with the MSDS or MSDS's which it provides a copy of the Physician's Confidentiality Agreement for the physician to sign and return pursuant to 105 CMR 670.025(E).(2) To obtain the name of a substance which the Commissioner has determined is a trade secret of the preparer of the MSDS, a physician treating a community resident shall include in the physician's statement required by 105 CMR 670.025(D), a statement that the patient has a serious medical condition which poses an imminent threat to the patient's health and which requires immediate treatment by a physician.(D)Physician's Statement and Request for MSDS's. (1) A physician or, in a medical emergency, medical personnel acting under the direct instruction of a physician, may request an MSDS or group of MSDS's for the toxic or hazardous substance(s) to which the physician's patient may have been exposed.(2) Except in a medical emergency, the physician shall make the request in writing. The written request shall include the following:(a) the identity of the substance or substances, if known to the physician; or(b) if the identity of a substance is not known to the physician, then the physician shall indicate as specifically as he or she is able which MSDS(s) are sought; and(c) a statement that the physician is treating a patient who has a condition which is or may be the result of, or may have been aggravated by, exposure to toxic or hazardous materials which may be or may have been present in the workplace (This statement shall indicate whether the patient is a present employee, former employee, or community resident); and(d) if the patient is a community resident and the physician wishes to receive the name of a substance which the Commissioner has determined is a trade secret of the preparer of the MSDS, then the written request shall also include a statement that the patient has a serious medical condition which poses an imminent threat to the patient's health and which requires immediate treatment by a physician, (If the patient is an employee or former employee, then the physician is not required to include this statement in order to obtain the name of a substance which has been determined to be a trade secret.); and(e) the location of the workplace (including the part of the workplace, if known to the physician) which is believed to be the source of the exposure; and(f) the name, address and signature of the physician.(3) In a medical emergency, the request may be made orally (including by telephone), and may be made by medical personnel acting under the direct instruction of the physician. As defined in 105 CMR 670.005, a "medical emergency" is a serious medical condition which poses an imminent threat to a person's health, caused, or suspected to have been caused, by accidental exposure to a toxic or hazardous substance, and which requires immediate treatment by a physician. An oral request in a medical emergency shall include: (a) the identity of the substance or substances, if known to the requester; or(b) if the identity of a substance is not known to the requester, then the requester shall indicate as specifically as he or she is able which MSDS(s) are sought; and(c) a statement that the physician is treating a patient who has a condition which is or may be the result of, or may have been aggravated by, exposure to toxic or hazardous materials which may be or may have been present in the workplace (This statement shall indicate whether the patient is a present employee, former employee, or community resident); and(d) if the patient is a community resident and the physician wishes to receive the name of a substance which the Commissioner has determined is a trade secret of the preparer of the MSDS, then the requester shall also include a statement that the patient has a serious medical condition which poses an imminent threat to the patient's health and which requires immediate treatment by a physician; (If the patient is an employee or former employee, then the requester is not required to include this statement in order to obtain the name of a substance which has been determined to be a trade secret.); and(e) the location of the workplace (including the part of the workplace, if known to the physician) which is believed to be the source of the exposure; and(f) the name of the physician who is treating the patient; and(g) the name and location of the hospital, clinic or other location at which the patient is being treated; and(h) if the request is made by non-physician medical personnel, the name and employer of the medical personnel making the request; and(i) the phone number from which the request is being made.(4) In a medical emergency at which a physician is not present, non-physician medical personnel may request orally, including by telephone, that the employer provide orally the information contained on an MSDS which explains emergency treatment response.(5) Following an oral request in a medical emergency pursuant to 105 CMR 670.025(D)(3), the physician shall as soon as practicable, but in any case no later than 24 hours after the MSDS(s) are received, deliver to or cause to be mailed to the employer or manufacturer a written confirmation of the oral request which includes the information specified for a written request in 105 CMR 670.025(D)(2).(E)Physician's Confidentiality Agreement.(1) The Commissioner shall prescribe the form of a Physician's Confidentiality Agreement, and shall make copies of the Agreement form available to employers and manufacturers upon request. Employers and manufacturers who provide MSDS(s) as required by 105 CMR 670.025(B) and (C), and who wish the physician to sign the Confidentiality Agreement, shall provide a copy of the Agreement accompanying the MSDS(s) and shall request the physician to sign and return the agreement.(2) Upon receipt of a copy of the Confidentiality Agreement form from an employer or manufacturer who has provided an MSDS or MSDS's, the physician shall immediately, or, in the case of geographical separation, as soon as practicable, but in any case within 24 hours, deliver to, or cause to be mailed to the employer or manufacturer a signed copy of the Confidentiality Agreement.(3) The form of the Confidentiality Agreement prescribed by the Commissioner shall state: "I agree to keep the MSDS's which you have provided under M.G.L. c. 111F confidential in the same manner and to the same extent that I normally preserve the confidentiality of other medical information about my patient.
"In addition, if the name of a substance for which you provided an MSDS has been determined by the Commissioner of Public Health to be a trade secret, and if you have so informed me and requested me to do so in writing, I will not place the name of the substance in the patient's regular medical record. If, in order to properly treat my patient, I believe that it is necessary that I maintain a record of such a trade secret name, I shall do so in a separate file. I may disclose such trade secret name to other medical personnel only if I believe that it is necessary that they know such trade secret name in order to provide proper treatment to my patient.
"With regard to MSDS information which you provide and which you have not informed me has been determined to be a trade secret by the Commissioner of Public Health I may use such information in the same manner in which I generally use other medical information about my patient.
"I acknowledge that this is a legally binding agreement under the Massachusetts "Right to Know" law, M.G.L. c. 111F."
Amended by Mass Register Issue 1321, eff. 9/9/2016.