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

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Texas Health & Safety Code Section/ Chapter Related/ Contrary Explanation Preemption Exception Is State Law Preempted? Recommendation § 161.135 Retaliation Against Non-Employees Prohibited § 161.137 Penalties Not Related Related/ Not Contrary No No § 161.202 Fees Related/ Not Contrary Any fee that could otherwise have been charged in accordance with HIPAA may not be charged under state law, if the records are being provided pursuant to certain requests for benefits. A covered entity could comply with both by simply declining to assess the fee. No § 161.203 Distribution of Records Related/ Not Contrary Pursuant to 45 C.F.R. § 164.524 (b), HIPAA provides for a 30-day limit for production of patient records. Texas law provides 15 days for physicians and 10 days for governmental entities. Texas law is stricter, if anything, and entities could comply with both sets of laws by adhering to the shorter deadline. No § 161.204 Application of Other Laws § 161.354 Public Information § 162.001 Definitions § 162.002 Required Testing of Blood Related/ Not Contrary Not Related Not Related Not Related Title 2: Health Chapter 162: Blood Banks and Donation of Blood No No No No 200
Texas Health & Safety Code Section/ Chapter Related/ Contrary Explanation Preemption Exception Is State Law Preempted? Recommendation § 162.003 Confidentiality of Blood Bank Records Related/ Not Contrary Blood banks as blood banks should not be covered entities, but it is not clear on the face of the law that covered entities wear two hats. § 162 doesn't currently track HIPAA--although it could. Practically speaking the standard of care would likely be HIPAA. § 162.004 Disclosure Required by Law Related/ Not Contrary No § 162.005 Disclosure to Certain Physicians or Person Tested Related/ Not Contrary Not Contrary to HIPAA because: (1) As to disclosures to physicians in (1) and (2), 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. (2) As to disclosures to the individual, HIPAA provides a right of access to the PHI of the individual. 45 C.F.R. § 164.524. No § 162.006 Disclosure to Other Blood Banks § 162.007 Report to Recipient or Transfuser Related/ Not Contrary Related/ Not Contrary Disqualification; simply means that if someone comes in with a reportable disease, then the name of the donor goes out with the warning "disqualified." See FDA regs; HSC Ch. 81; Tex. Admin. Code re: Reports to Public Health Authorities. HIPAA permits appropriately limited disclosure of PHI that is required by law. 45 C.F.R. § 164.512(a)(1). No No The persons to whom the disclosure should be made is worded disjunctively. 201
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REPORT OF THE OFFICE OF THE ATTORNE
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TABLE OF CONTENTS Preface 1 HIPAA a
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ules, policies, and procedures. She
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health care privacy and has given n
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eviewed their assigned codes to loo
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HIPAA STATE LAW RESULT Requires a u
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HIPAA, the Task Force generally not
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HIPAA 45 C.F.R. § 164.508(c)(1) de
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65 Fed. Reg. at 82744. OCR also ind
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elatively straightforward. In other
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Public Information Act because the
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Elderly or Disabled Persons; Confid
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Texas Administrative Code Section 1
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Texas Administrative Code Section P
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Texas Business & Commerce Code 15.0
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Texas Business & Commerce Code Sect
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Cases & Common Law Principles Case
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Cases & Common Law Principles Case
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Texas Civil Practice & Remedies Cod
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Texas Code of Criminal Procedure Ar
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Texas Code of Criminal Procedure Ar
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Texas Family Code Section § 5.002
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Texas Family Code Section Related/
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Texas Government Code Section § 33
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Texas Government Code Section Relat
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Texas Health & Safety Code Section/
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Texas Labor Code Section Chapter 1
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Texas Labor Code Chapter/ Section R
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Texas Labor Code Chapter/ Section C
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Texas Labor Code Chapter/ Section C
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Texas Labor Code Chapter/ Section
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Texas Labor Code Chapter/ Section
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Texas Occupations Code Section § 5
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Texas Rules of Appellate Procedure
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Texas Rules of Evidence Rule Relate
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Texas Transportation Code Section R
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