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(4) - (8)
Related/
Not Contrary
(4) Consistent with 45 C.F.R. § 164.510. However, for
purposes of interpretation, it is difficult to tell whether
"member of the clergy specifically designated by the patient"
refers to one particular clergy member designated by the
patient or a member of the clergy of a particular
denomination, i.e. "Reverend Smith" or "a Lutheran pastor."
So long as the patient identifies a particular person pursuant
to this exception, the disclosures seem to meet 45 C.F.R. §
164.510(b)(1), which permits a covered entity to disclose to,
i.a., "any other person identified by the individual, the [PHI]
directly relevant to such person's involvement with the
individual's care or payment related to the individual's health
care." This conclusion is based also on the assumption that
the covered entity would also comply with other requirements
in 45 C.F.R. § 164.510.
(5) Consistent with 45 C.F.R. § 164.512(h).
(6) 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.
(7) The subsection incorporates the Code provisions for
surrogate decision making; the disclosures therefore appear
to fall within 45 C.F.R. § 164.502(g).
(8) All falls within "health care operations" (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.)--but the disclosures permitted by the subsection
are far narrower than HIPAA operation disclosures and do
not contemplate, e.g., a business associate relationship, all of
which may be an impediment to compliance.
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