Current through September 16, 2024
1. In complying with
NRS
439B.635, as amended by section 11 of Senate
Bill No. 380, chapter 547, Statutes of Nevada 2021, at page 3724,
439B.640,
as amended by section 12 of Senate Bill No. 380, chapter 547, Statutes of
Nevada 2021, at page 3725, or 439B.645, as amended by section 13 of Senate Bill
No. 380, chapter 547, Statutes of Nevada 2021, at page 3726, or section 6 of
Senate Bill No. 380, chapter 547, Statutes of Nevada 2021, at page 3723, if a
manufacturer, wholesaler or pharmacy benefit manager reasonably believes that
public disclosure of information that it submits to the Department would
constitute misappropriation of a trade secret for which a court may award
relief pursuant to the federal Defend Trade Secrets Act of 2016,
18 U.S.C. §
1836, as amended, the manufacturer,
wholesaler or pharmacy benefit manager may submit to the Department a request
to keep the information confidential.
2. A request for confidentiality submitted
pursuant to subsection 1 must be divided into the following parts, which must
be severable from each other:
(a) The first
part of the request for confidentiality must describe, with particularity, the
information sought to be protected from public disclosure. Upon a request for
public records pursuant to
NRS
239.010, the Department will not disclose the
description set forth in the request for confidentiality or the information
sought to be protected from public disclosure, unless the description and
information are disclosed pursuant to subsections 5 and 6.
(b) The second part of the request for
confidentiality must include an explanation of the reasons why public
disclosure of the information would constitute misappropriation of a trade
secret for which a court may award relief pursuant to the federal Defend Trade
Secrets Act of 2016,
18 U.S.C. §
1836, as amended. Upon a request for public
records pursuant to
NRS
239.010, the Department will disclose the
explanation set forth in the request for confidentiality.
3. If the Department receives a request for
public records pursuant to
NRS
239.010 seeking disclosure of any information
for which a manufacturer, wholesaler or pharmacy benefit manager has submitted
a request for confidentiality pursuant to subsection 1, the Department will:
(a) As soon as reasonably practicable after
receiving the request for public records, provide the manufacturer, wholesaler
or pharmacy benefit manager with:
(1) Written
notice of the request for public records and the procedures set forth in this
section; and
(2) A copy of the
request for public records and the date on which the Department received the
request.
(b) Undertake
an initial review to determine whether the Department reasonably believes that
public disclosure of the information would constitute misappropriation of a
trade secret for which a court may award relief pursuant to the federal Defend
Trade Secrets Act of 2016,
18 U.S.C. §
1836, as amended. In undertaking its initial
review, the Department will consider, as persuasive authority, the
interpretation and application given to the term "trade secrets" in Exemption 4
of the federal Freedom of Information Act,
5
U.S.C. §
552(b)(4), as
amended.
4. If, after
undertaking its initial review pursuant to subsection 3, the Department
reasonably believes that public disclosure of the information would constitute
misappropriation of a trade secret for which a court may award relief pursuant
to the federal Defend Trade Secrets Act of 2016,
18 U.S.C. §
1836, as amended, the Department will:
(a) Within the time prescribed by
NRS
239.0107, provide the requester of the public
records with written notice pursuant to paragraph (d) of subsection 1 of
NRS
239.0107 that the Department must deny the
request for public records on the basis that the information is confidential
pursuant to the federal Defend Trade Secrets Act of 2016,
18 U.S.C. §
1836, as amended.
(b) As soon as reasonably practicable after
providing the written notice to the requester pursuant to paragraph (a),
provide the manufacturer, wholesaler or pharmacy benefit manager with:
(1) Written notice that the Department denied
the request for public records; and
(2) A copy of the written notice that the
Department provided to the requester pursuant to paragraph (a) and the date on
which the Department sent the written notice to the requester.
5. If, after
undertaking its initial review pursuant to subsection 3, the Department
reasonably believes that public disclosure of the information would not
constitute misappropriation of a trade secret for which a court may award
relief pursuant to the federal Defend Trade Secrets Act of 2016,
18 U.S.C. §
1836, as amended, the Department will:
(a) Within the time prescribed by
NRS
239.0107, provide the requester of the public
records with written notice pursuant to paragraph (c) of subsection 1 of
NRS
239.0107 that the Department intends to
disclose the information, except that:
(1)
The Department will not be able to disclose the information until 30 days have
elapsed following the date on which such written notice was sent to the
requester; and
(2) If the
manufacturer, wholesaler or pharmacy benefit manager timely commences an action
within the 30-day period as provided in subsection 6, the Department will not
be able to disclose the information, unless the disclosure is permitted by that
subsection.
(b) As soon
as reasonably practicable after providing the written notice to the requester
pursuant to paragraph (a), provide the manufacturer, wholesaler or pharmacy
benefit manager with:
(1) Written notice that
the Department intends to disclose the information; and
(2) A copy of the written notice that the
Department provided to the requester pursuant to paragraph (a) and the date on
which the Department sent the written notice to the requester.
6. If, within the
30-day period following the date on which the Department sent the written
notice to the requester of public records pursuant to subsection 5, the
manufacturer, wholesaler or pharmacy benefit manager:
(a) Does not commence an action in a court of
competent jurisdiction to enjoin the Department from disclosing the information
pursuant to the federal Defend Trade Secrets Act of 2016,
18 U.S.C. §
1836, as amended, the Department will
disclose the information.
(b)
Commences an action in a court of competent jurisdiction to enjoin the
Department from disclosing the information pursuant to the federal Defend Trade
Secrets Act of 2016,
18 U.S.C. §
1836, as amended, the Department will not
disclose the information until final resolution of the action, including any
appeals. After final resolution of the action, if the court:
(1) Enjoins the Department from disclosing
the information as a trade secret, the Department will not disclose the
information so long as the information retains its status as a trade
secret.
(2) Does not enjoin the
Department from disclosing the information as a trade secret, the Department
will disclose the information as soon as reasonably practicable after final
resolution of the action.
Added to NAC by Dep't of
Health & Human Services by R042-18, eff. 5-31-2018; A by
R121-20A,
eff. 6/13/2022
NRS 439B.685, as
amended by section 16 of Senate Bill No. 380, chapter 547, Statutes of Nevada
2021, at page 3728
