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

Texas Labor Code
Section
Related/
Contrary
Explanation
Preemption
Exception
Is State Law
Preempted?
Recommendation
This law relates to employment discrimination based
on genetic information, which is defined generally as
the presence or absence of genetic characteristics
which are medically and scientifically believed to
predispose an individual to a disease, disorder, or
syndrome.
§ 21.403
Confidentiality of
Genetic Information
Related/
Not Contrary
This provision states: "Except as provided by §
21.4031, genetic information is confidential and
privileged regardless of the source of the
information" and "a person who holds genetic
information about an individual may not disclose or
be compelled to disclose, by subpoena or otherwise,
that information unless the disclosure is specifically
authorized as provided by § 21.4032 [allowing
disclosure if written authorization]."
No
This law is not contrary to HIPAA because a
covered entity could comply with this law and with
the requirements under HIPAA. In a sense, this law
is more stringent than HIPAA because HIPAA
permits disclosure of PHI in response to a subpoena
if the requesting party provides satisfactory
assurances, such as an attempt to obtain a qualified
protective order, pursuant to 45 C.F.R. §
164.512(e)(1)(ii), dealing with uses and disclosures
related to judicial or administrative proceedings.
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