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 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 308
Texas Health & Safety Code Section/ Chapter Related/ Contrary Explanation Preemption Exception Is State Law Preempted? Recommendation § 611.005 Legal Remedies for Improper Disclosure or Failure to Disclose Related/ Not Contrary Allows an individual to petition a court and addresses access to PHI in mental health records. All relate to HIPAA privacy; can be in addition to HIPAA remedies. No HIPAA and Texas law here have different schemes, but they are not contrary. § 611.006 Authorized Disclosure of Confidential Information in Judicial or Administrative Proceeding Related/ Not Contrary Texas law contains a list of the types of proceedings in which mental health records may be disclosed. HIPAA does not limit the disclosures by the type of proceeding; rather, HIPAA allows disclosures in all manner of proceedings, provided the disclosures comply with the requirements of 45 C.F.R. § 164.512(e). HIPAA and Texas law can, therefore, be harmonized in this regard. See 25 TAC chapter 404, subchapter E for corresponding rules. No § 611.007 Revocation of Consent Related/ Not Contrary Covered entities can comply with Texas law and HIPAA; a valid revocation in that instance will contained the required elements of both laws. See 25 TAC chapter 404, subchapter E for corresponding rules. No 309
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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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Texas Administrative Code Section P
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Texas Business & Commerce Code 15.0
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Texas Business & Commerce Code Sect
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Cases & Common Law Principles Case
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Cases & Common Law Principles Case
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Texas Civil Practice & Remedies Cod
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Texas Family Code Section § 5.002
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Texas Family Code Section Related/
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Texas Government Code Section § 33
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