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
§ 241.154
Request
Related/
Contrary as to
(b) and (d) in
tandem under
second prong
As to (a): Entities are given only a 15-day time period to
provide access, whereas they are given a 30-day period in
HIPAA. Entities could comply with both by adhering to the
shorter deadline.
As to (b): This authorizes an entity to withhold access
from records for nonpayment of a fee, which would interfere
with an individual's required right of access, as outlined in 45
C.F.R. § 164.524. While subsection (d) makes it clear that an
entity may not deny an individual access to his or her own
records for nonpayment of a fee, it is not clear whether
subsection (d)(2) would apply to, e.g., an attorney or other
legally authorized representative (LAR). In addition,
subsection (b) authorizes an entity to charge a retrieval or
processing fee. HIPAA, on the other hand, permits charges
only for (1) copying, including labor costs incident thereto; (2)
postage, if applicable; and (3) the cost of preparing an
explanation or summary of an individual's PHI. Because
subsection (b) appears to authorize charges for more than
copying & labor incident to copying, it is contrary. Although a
CE could forego assessing any prohibited charges, when
taken as a whole, subsection (b) and (d) arguably stand as
an obstacle to the purposes of HIPAA and are therefore
contrary.
Yes
Specify that access to
PHI for inspection
purposes may not be
denied to an individual or
LAR for nonpayment of a
fee; delete any
authorization for
charging a fee other than
the cost of copying and
labor incident to such
copying.
§ 241.155
Safeguards for
Security of Health
Care Information
Not Related
No
§ 241.156
Patient Remedies
Related/
Not Contrary
However, differs from HIPAA inasmuch as it seems to create
a private cause of action for noncompliance.
No
§ 241.202
Annual Report
Not Related
Reporting is only of number of occurrences, not of IIHI.
No
227