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
Title 2: Health
Chapter 35: Children With Special Health Care Needs
Related because subsection (c) requires maintenance of a
waiting list with certain specified info that is PHI.
§ 35.003
Services
Program for
Children With
Special Health
Care Needs
Related/
Not Contrary
Not Contrary to HIPAA because:
(1) The services program at issue is not a covered entity, and
TDH does not consider it to be a group or individual health
plan because it falls outside the 45 C.F.R. § 160.103
definition of health plan.
(2) Even it it were a covered entity, HIPAA permits the use
and disclosure of IIHI in the course of certain treatment,
payment, and health care operations. 45 C.F.R. § 164.506.
No
§ 35.0034
Cost-Sharing
Payments
Related/
Not Contrary
Medicaid disclosure to Dept. of Human Services is not
contrary because:
(1) HIPAA permits appropriately limited disclosure of PHI that
is required by law. 45 C.F.R. § 164.512(a)(1).
(2) HIPAA permits certain disclosures by covered entities that
are government programs providing public benefits. 45
C.F.R. § 164.512(k)(6).
No
§ 35.005
Eligibility for
Services
Not Related
See 25 TAC §§ 38.03, 38.12, and 38.13 for corresponding
rules. See also JM-1169.
No
§ 35.006
Denial,
Modification,
Suspension, or
Termination of
Services
Related/
Not Contrary
PHI is not in the hands of a covered entity.
No
137