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
§ 595.001
Confidentiality of
Records
§ 595.002
Rules
§ 595.003
Consent to
Disclosure
Title 7: Mental Health and Mental Retardation
Chapter 595: Records
Related/ Records are confidential except as authorized under §§
Contrary to 595.003 and 595.004. If § 595.004 is contrary, then that part
the extent of § of § 595.001 would also be contrary. See 40 TAC § 8.624,
595.004. 40 TAC, chapter 4, Subchapter A for corresponding rules.
Not Related
Related/
Not Contrary
Pertains to rule making authority.
Provides that confidential records may be disclosed under
certain circumstances; exceptions are addressed in §
595.005.
No
No
No
§ 595.004
Right to Personal
Record
Related/
Contrary
Under Second
Prong
The HIPAA scheme and the Mental Health and Mental
Retardation (MHMR) scheme for individual access are widely
divergent. The right of access is one of the most thorough
and detailed portions of HIPAA. Indeed, individual access is
one of only two required disclosures in the entire Privacy
Rule. Any denial thereof must be well documented and
justified. That the right of access has been afforded such
importance in the HIPAA regs makes the discrepancies
between it and state law more significant.
In this instance, the discrepancies are as follows:
(1) State law permits a provider to deny access without any
documentation; HIPAA does not permit individual access to
psychotherapy notes but this law would appear to do so
inasmuch as MHMR records contain psychotherapy notes.
(2) Subsection (b) gives parents and guardians a nearly
unfettered right of access, even if those parties are abusive
or suspected of abuse.
Yes
A possible solution may
be to incorporate the
provisions of other law in
determining whether
access will be provided
or not.
Given the import afforded individual access to HIPAA, and
given the difficulty of reconciling the two schemes, this
section is arguably contrary to the Privacy Rule under the
second prong of the definition of "contrary."
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