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
§ 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.
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