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
§ 85.116
Testing and
Counseling for
State Employees
Exposed to HIV
Infection on the
Job
Not Related
No
§ 85.131
Research on
Nursing Care
Related/
Not Contrary
To the extent a person is conducting research on human
subjects, he or she would have to go through the
department's Internal Review Board (IRB), which is regulated
under HIPAA (and would therefore be HIPAA-compliant) and
another federal section, the privacy board section. The dept
has reviewed federal and state law and the Common Rule
and found them all to be consistent with respect to research
disclosures. Specifically, any research that goes through an
IRB that involves a patient's information requires an
"informed consent" authorization from the patient and the
family. If there is no authorization, the principal investigator
must vouch that there is little chance info will be disclosed.
Results cannot be released in an identifiable form. Also, there
is a good chance that the entity disclosing the info for the
research is a non-CE.
No
Finally, any disclosures made would also be authorized, as
HIPAA permits disclosure for certain public health activities.
45 C.F.R. § 164.512(b).
§ 85.132
Demonstration
Projects in
Nursing Facilities
§ 85.141
Model Policies
Concerning
Persons in
Custody
Related/
Not Contrary
See above.
No
Not Related
See 25 TAC § 97.144 for corresponding rule/guidelines (not
part of the agency's rules).
No
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