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
There is a discrepancy between HIPAA's list of exceptions
from the definition of "marketing" and the comparable list in
state law. Specifically, state law excepts a communication "by
a covered entity to an individual that encourages a change to
a prescription drug included in the covered entity's drug
formulary or preferred drug list."
§ 181.001
Definitions
Related/
Not Contrary
We assume for a covered entity that such a disclosure would
comply with HIPAA, as 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
Moreover, such a disclosure seems to meet the definition of
"more stringent" inasmuch as it gives the individual greater
access to his or her own health information.
§ 181.002
Applicability
§ 181.003
Sovereign
Immunity
§ 181.005
Duties of
Commissioner
§ 181.051
Partial Exemption
§ 181.052
Processing
Payment
Transactions by
Financial
Institutions
§ 181.053
Nonprofit
Agencies
Related/
Not Contrary
Not Related
Related/
Not Contrary
Related/
Not Contrary
Related/
Not Contrary
Related/
Not Contrary
Language has been brought in line with Federal HIPAA
language. Tex. S.B. 330, 78th Leg., R.S. (2003).
The Commissioner may adopt rules; Commissioner shall
review 8/14/02 amendments to HIPAA and may choose to
adopt the changes; if changes are adopted, they must be
reported to the House and Senate.
This statute excepts certain institutions from all but
Subchapter D of Chapter 181, which means they are also
excepted from the enforcement provisions of Subchapter E.
The exemptions in this section and related sections (181.054,
181.055, 181.056, 181.057, and 181.058) appear to be
vestiges from an earlier version of 181.
No
No
No
No
No
No
212