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
§ 597.001
Definitions
§ 597.002
Rules
§ 597.003
Exceptions
§ 597.021
ICF-MR
Assessment of
Client's Capacity
to Consent to
Treatment
Not Related
Not Related
Not Related
Related/
Not Contrary
Title 7: Mental Health and Mental Retardation
Chapter 597: Capacity of Clients to Consent to Treatment
Pertains to rule making authority.
See 25 TAC § 406.310 (now 40 TAC 6.310); 25 TAC chapter
405, Subchapter J (now 40 TAC Chapter 8, subchapter J) for
corresponding rules.
No
No
No
No
§ 597.041
Surrogate
Decision-Makers
Related/
Not Contrary
This provides that medical and dental decisions may be
made by a family member or any person who consents on
behalf of a client and who acts in good faith, reasonably, and
without malice; such a person is not criminally or civilly liable
for that action.
HIPAA follows state law for who can be a personal
representative of an incompetent adult or child; consistent
with 45 C.F.R. § 164.502(g). See 40 TAC Chapter 8,
subchapter J for corresponding rules.
No
§ 597.042
Surrogate
Consent
Committee
Established;
Departmental
Support
§ 597.043
Committee
Membership
Related/
Not Contrary
Related/
Not Contrary
Provides that decisions are made by a committee for those
clients without a guardian or surrogate.
HIPAA follows state law for who can be a personal
representative of an incompetent adult or child; consistent
with 45 C.F.R. § 164.502(g). See 40 TAC Chapter 8,
subchapter J for corresponding rules.
HIPAA follows state law for who can be a personal
representative of an incompetent adult or child; consistent
with 45 C.F.R. § 164.502(g).
No
No
303