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
There is a difference in time periods for producing records:
15 vs. 30 days. Also, HIPAA does not allow access to
psychotherapy notes. State law is more stringent,
however--allows more and faster access than HIPAA.
§ 611.008
Request by
Patient
Related/
Contrary
Nonetheless, the fee provisions are problematic. Subsection
(b) authorizes a retrieval fee and permits a covered entity to
deny access to a person's records unless the fee is paid or
there is a medical emergency.
Because this interferes with one of the central purposes of
the Privacy Rule (provision of access), the fee provisions are
contrary under the second prong of the definition.
Yes
Prohibit charging of a fee
for retrieval and the
withholding of access for
non-payment of such
fees.
The effect of this provision is muddied by § 611.0045, which
we assume to modify this section, but the language of which
seems to imply a non-discretionary duty to provide access.
See text of report for discussion of fee provisions. See also
25 TAC chapter 404, subchapter E for corresponding rules.
§ 612.001
Article III (c), IV
(d)
Article X (b)
§ 612.004
General Powers
and Duties of
Administrator
§ 613.001
Definition
Related/
Not Contrary
Related/
Not Contrary
Related/
Not Contrary
Related/
Not Contrary
Title 7: Mental Health and Mental Retardation
Chapter 612: Interstate Compact on Mental Health
Receiving state shall be furnished all available medical and
other records concerning the patient. 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.
Title 7: Mental Health and Mental Retardation
Chapter 613: Kidney Donation by Ward With Mental Retardation
No
No
No
No
310