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 § 241.152 Written Authorization for Disclosure of Health Care Information Related/ Not Contrary HIPAA is partially more stringent in that it requires a purpose and does not require a patient to ensure that hospital records dept has revocation. The imposition of the obligation to ensure receipt of the revocation is in tension with HIPAA but does not seem to rise to the level of contrary to the accomplishment of the full objectives and purposes of HIPAA. Texas law is more stringent in its prohibition of compound authorizations: Texas law imposes a blanket prohibition, whereas HIPAA allows compound authorizations in certain, limited circumstances. See 45 C.F.R. § 164.508(b)(3). See also 100 S.W.3d 582. No 222
Texas Health & Safety Code Section/ Chapter Related/ Contrary Explanation Preemption Exception Is State Law Preempted? Recommendation § 241.153(1)-(3) Disclosure Without Written Authorization Related/ Not Contrary The disclosures permitted in this section are not contrary to HIPAA because: (1) A covered entity could follow both HIPAA and state law in disclosing directory info; however, "directory info" in HIPAA is more narrowly defined and there may be additional requirements in HIPAA related to notice and opportunity to agree/object. See 45 C.F.R. § 164.510(a). (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; HIPAA may have additional restrictions such as "minimum necessary." State law is narrower in one sense because the receiving provider must be rendering health care to the patient when the disclosure is made. It is also broader in the sense that the disclosing provider need not be in a treatment relationship with the patient. (3) Falls specifically within "payment" exception. See 45 C.F.R. § 164.506(c)(3). Disclosure under Texas law may be narrower because limited to patient's diagnosis and outcome of admission. Under HIPAA, it would be minimum necessary which could be a broader class of information. permitted by the subsection are far narrower than HIPAA HCO disclosures, & d/n contemplate, e.g. a business associate relationship, all of which may be an impediment to compliance. No We presume that the Legislature has intended to enact a scheme in the Facilities Licensing provisions that differs from HIPAA. We simply note some of the differences: the list of permitted disclosures in state law is an exclusive list; the disclosures themselves are narrower than those permitted in HIPAA; there is no Texas counterpart to concepts in HIPAA like business associate, treatment/payment/healt hcare operations, or Organized Health Care Arrangement (OHCA). That the schemes are so widely divergent could lead to compliance difficulties for the covered entities but the statute is not contrary. 223
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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 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 Occupations Code Section § 5
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Preemption Analysis of Texas Laws Relating to the Privacy of Health ...

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