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

Texas Health & Safety Code
Section/
Chapter
Related/
Contrary
Explanation
Preemption
Exception
Is State Law
Preempted?
Recommendation
Chapter 1
General
Provisions
§ 11.0045
Comprehensive
Strategic and
Operational Plan
Not Related
Not Related
Title 1: General Provisions
The Texas Board of Health is not a covered entity (CE). The
Texas Department of Health as a whole is a hybrid entity.
However, the Board does not engage in any direct services
or standard transactions that would cause it to be a covered
entity. All instances involving questions about a function
within the Department have been noted.
Title 2: Health
Chapter 11: Organization of Texas Department of Health
Although subsection (c)(5) requires the Tex. Board of Health
to biannually develop a plan that includes a determination of
whether it is necessary to collect each type of information that
the Texas Dept. of Health collects, no standard transactions
are implicated thereby. In addition, the Board is not a covered
entity.
No
No
§ 11.018
Public Interest
Information and
Complaints
§ 12.002
Board
Investigations
Not Related
Related/
Not Contrary
Subsection (d) requires the Tex. Dept. of Health (TDH) to
keep complaint files (which could conflict with HIPAA
return/destruction requirements).
This is not contrary to HIPAA because:
(1) TDH is not a covered entity.
(2) HIPAA permits certain disclosures for the purpose of
health care oversight. 45 C.F.R. § 164.512(d)(1).
Title 2: Health
Chapter 12: Powers and Duties of Texas Department of Health
Not contrary because:
(1) Texas Board of Health is not a covered entity.
(2) HIPAA permits disclosure for certain public health
activities. 45 C.F.R. § 164.512(b).
No
No
130