Preemption Analysis of Texas Laws Relating to the Privacy of Health ...

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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. 306
Texas Health & Safety Code Section/ Chapter Related/ Contrary Explanation Preemption Exception Is State Law Preempted? Recommendation § 611.004 (a)(5)-end Related/ Not Contrary Not Contrary to HIPAA because: (5) Consistent with HIPAA personal representative provisions; (6) Could incorporate HIPAA's broader payment exception but there is nothing contrary; (7) Nothing contrary but "treatment" could be clarified to avoid preemption issues in the future; (8) Subsection (c) prohibits release of IIHI and is incorporated into this provision; (9) Permitted by 45 C.F.R. § 164.512(k)(5); (10) 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; see § 241.153 for same language in the hospital setting. This exception is far narrower than the HIPAA provision, however; (11) Not Contrary but has been moved from 4590i of VTCS; (b) consistent with HIPAA operational requirements (c) no conflict (d) prohibitions on redisclosure are not contrary but it may be worth noting that while such prohibitions are found in the MPA, they are not found in the hospital licensing statutes. No 307
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REPORT OF THE OFFICE OF THE ATTORNE
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TABLE OF CONTENTS Preface 1 HIPAA a
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ules, policies, and procedures. She
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health care privacy and has given n
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eviewed their assigned codes to loo
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HIPAA STATE LAW RESULT Requires a u
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HIPAA, the Task Force generally not
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HIPAA 45 C.F.R. § 164.508(c)(1) de
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65 Fed. Reg. at 82744. OCR also ind
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elatively straightforward. In other
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Public Information Act because the
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Elderly or Disabled Persons; Confid
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Texas Administrative Code Section 1
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Preemption Analysis of Texas Laws Relating to the Privacy of Health ...

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