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
HIPAA allows no access to psychotherapy notes. See 45
C.F.R. § 164.524(a)(1). To the extent this state statute
permits access to psychotherapy notes, it is saved by 45
C.F.R. § 160.203(b) as it is more stringent--allows greater
access than HIPAA.
§ 611.0045(a)-(b)
Right to Mental
Health Record
Related/
Contrary
However, § 611.0045(b) is contrary to HIPAA, possibly under
the first definition but clearly under the second definition of
"contrary." HIPAA prescribes a high threshold and a great
number of administrative restrictions on the denial of access
to a record. Specifically, under HIPAA, a professional would
be required to find that the provision of access is "reasonably
likely to endanger the life or physical safety of the individual
or another person." Texas requires only that the professional
determine that access may be "harmful," a much lower
threshold for denying access.
Yes
Provisions governing
denial of access for
inspection purposes
should be made
consistent with HIPAA.
See 25 TAC chapter 404, subchapter E for corresponding
rules.
Also worth noting that under subsections (c) & (d), covered
entities would have to follow both HIPAA and Texas law. In
this regard, Texas has an additional requirement that the
documentation of the denial track which portion of the record
to which access was denied. See 45 C.F.R. § 164.524.
Subsection (e) is not contrary. Subsection (f) is also not
contrary but there is no "out" for provision of access where
apatient may be abused by a guardian. Another difference,
(albeit not a difference that rises to the level of "contrary") is
the fact that HIPAA permits a provider to deny access to
records that identify a person if such access is reasonably
likely to cause substantial harm to the other person. Texas
law imposes a non-discretionary requirement that the
provider remove most information related to another person.
See Health & Safety Code § 611.0045(g). Subsections (h)-(k)
are not contrary.
No
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