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

Texas Insurance Code
Section/Article
Related/
Contrary
Explanation
Preemption
Exception
Is State Law
Preempted?
Recommendation
Subsections 1-4, 6 & 7 are not disclosure
statutes.
Art. 21.58A
Health Care
Utilization Review
Agents
Related/
Not Contrary
As to Subsection 5:
(1) HIPAA permits certain disclosures of PHI to
the individual. 45 C.F.R. § 164.502(a)
(2) 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.
As to Subsection 6A:
(1) HIPAA permits appropriately limited
disclosure of PHI that is required by law. 45
C.F.R. § 164.512(a)(1).
(2) 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.
No
Article 21.58A
Sec. 8(b)
Confidentiality
Related/
Not Contrary
Sec. 8(b) requires that the authorization must (1)
be dated and (2) contain the signature of the
individual who is the subject of the personal or
confidential information requested and the
signature must have been obtained one year or
less prior to the date of the disclosure.
45 C.F.R. § 164.502 (a)(1)(iv) permits use and
disclosure pursuant to a valid authorization. 45
C.F.R. § 164.508 requires an authorization to
contain very specific enumerated elements.
Sec. 8(b) authorizations must comply with the
requirements of 45 C.F.R. § 164.508. See text
of Report on "Written Authorizations."
No
May want to clarify this
by amending the
clause that reads "or
as otherwise required
by law" to read
"provided that
authorization complies
with federal privacy
law and other
applicable law."
342