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
§ 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.
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