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
§ 611.003
Persons Who
May Claim
Privilege of
Confidentiality
§ 611.004
(a)(1)-(4)
Authorized
Disclosure of
Confidential
Information Other
than in Judicial or
Administrative
Proceeding
Related/
Not Contrary
Related/
Not Contrary
Addresses who may claim privilege of confidentiality;
consistent with 45 C.F.R. § 164.502, but more restrictive.
Could specify that facilities have right to assert privilege.
See 25 TAC chapter 404, subchapter E for corresponding
rules.
Not Contrary to HIPAA because:
(1) Merely incorporates other law;
(2) 45 C.F.R. § 164.512(j)(1) would authorize the disclosures,
but the class of people to whom disclosures can be made
under that provision of HIPAA is broader in the sense that it
must be someone reasonably able to prevent the
problem--but not necessarily law enforcement or medical
personnel. There are also apparent differences between this
provision of state law and § 241.153 of the Health & Safety
Code;
(3) 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.
These and disclosures for research would have to comply
with HIPAA before a covered entity could make them, and
any non-covered entities would be bound by the Common
Rule;
(4) Consistent with HIPAA authorization & personal
representative provisions. However, there is another
apparent difference between this section and Health & Safety
§ 241.153. Specifically, the class of personal representatives
permitted under § 611.004 is far narrower. Also, state law
places no limitations on disclosures where parent or guardian
may be abusing patient.
No
No
See 25 TAC chapter 404, subchapter E for corresponding
rules.
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