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
§ 81.103
Confidentiality;
Criminal Penalty
Related/
Not Contrary
As to (a): It is stricter because it applies confidentiality
requirements to non-covered entities and therefore is not
contrary.
As to (b): Not Contrary because:
(1) It would be required by law because it incorporates the
rest of chapter 81 & disclosures to the dep't therein are
(HIPAA permits appropriately limited disclosure of PHI that is
required by law. 45 C.F.R. § 164.512(a)(1)) and/or within the
permitted disclosures for public health;
(2) Public health (HIPAA permits disclosure for certain public
health activities. 45 C.F.R. § 164.512(b) and HIPAA permits
appropriately limited disclosure of PHI that is required by law.
45 C.F.R. § 164.512(a)(1);
(3) same as above;
(4) 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;
(5) same;
(6) 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 and/or individual access;
(7) HIPAA permits disclosure for certain public health
activities. 45 C.F.R. § 164.512(b);
(8) HIPAA permits appropriately limited disclosure of PHI that
is required by law. 45 C.F.R. § 164.512(a)(1); and
(9) RBL.
As to (c), it does not involve a covered entity.
As to (d) and (e):
Subsections (f)-(h) are not contrary but in reaching that
conclusion the task force assumed that the blood banks were
acting as blood banks and are therefore not covered entities.
As to (i): It fits within the exception for treatment, payment,
and health care operations (TPO).
As to (j), it is NC--both penalties could be assessed.
No
161