Preemption Analysis of Texas Laws Relating to the Privacy of Health ...

Texas Family Code
Section
Related/
Contrary
Explanation
Requires proof of identity from an
applicant for information from an
adoption registry.
Preemption
Exception
Is State Law
Preempted?
Recommendation
§ 162.408
Proof of Identity
Not Related
Even if related, it is not inconsistent with
HIPAA because the stated purpose of
the statute is to protect the privacy rights
of the parties to an adoption, as
opposed to protecting PHI.
No
Lists the required information that must
be provided by a person applying to
register to a registry.
§ 162.409
Application
Not Related
Even if related: (1) The disclosing entity
is not a covered entity; and (2) The
statute does not address either the
confidentiality or disclosure of the
application.
No
§ 162.414
Matching
Procedures
Related/ Contrary
State law would permit disclosure of PHI
(confirmation/denial of a biological
relationship between two people) that is
prohibited by HIPAA.
A covered entity would find it impossible
to comply with both this state law and
HIPAA.
None
Yes
Amend the last sentence of §
162.414(d) to read: "The agency,
court, hospital, physician, or person
with knowledge may confirm or
deny the match without breaching
any duty of confidentiality to the
adoptee, adoptive parents, birth
parents, or biological siblings,
which arises from state law. This
provision does not relieve a
Covered Entity, as that term is
defined by the Health Insurance
Portability and Accountability Act of
1996 (HIPAA), from any obligations
it has pursuant to HIPAA."
§ 162.416
Disclosure of
Identifying
Information
Related/
Not Contrary
(1) No covered entity.
(2) HIPAA permits appropriately limited
disclosure of PHI that is required by law.
45 C.F.R. § 164.512(a)(1).
No
104