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
§ 591.022
Civil Penalty
Related/
Not Contrary
Subsection (c): Penalty for releasing confidential information.
State law provides a civil penalty, HIPAA addresses criminal
penalty or civil penalty for non-compliance of the rules.
The laws do not contradict. HIPAA and this section are not
exclusive remedies.
Title 7: Mental Health and Mental Retardation
Chapter 593: Admission and Commitment to Mental Retardation Services
No
§ 593.013
Requirement of
Interdisciplinary
Team
Recommendation
Related/
Not Contrary
Subsection (a): To be committed to a residential facility, an
interdisciplinary team must review the person's social and
medical history.
Not Contrary to HIPAA because:
(1) HIPAA permits appropriately limited disclosure of PHI that
is required by law. 45 C.F.R. § 164.512(a)(1).
(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.
No
§ 593.050
Conduct of
Hearing
Related/
Not Contrary
Subsection (a): The hearing must be open to the public…
Subsection (d)…The results of the determination of mental
retardation and the current interdisciplinary team report and
recommendations shall be presented in evidence.
No
§ 594.013
Notice of
Transfer or
Discharge;
Approval
§ 594.035
Hearing Date
§ 594.040
Open Hearing
§ 594.041
Medical Evidence
Related/
Not Contrary
Related/
Not Contrary
Related/
Not Contrary
Related/
Not Contrary
Title 7: Mental Health and Mental Retardation
Chapter 594: Transfer and Discharge
Provides for automatic notification of parent or guardian.
Consistent with HIPAA provisions regarding disclosure to a
personal representative.
In general, the transfer hearing must be open to the public.
Subsection (a) provides that at least two physicians must
testify at the transfer hearing.
No
No
No
No
300