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 requires disclosure of genetic test results to
the individual who submitted to the genetic test or to
a physician designated by the individual.
§ 21.404
Disclosure of Test
Results to Individual
Tested
Related/
Not Contrary
This law is not contrary to HIPAA because a
covered entity could comply with this law and with
the requirements under HIPAA.
Covered entities should note HIPAA requirements
for denial of access to PHI listed at 45 C.F.R. §
164.524(a)(2) and (a)(3). For instance, access may
be denied if a licenced health care professional
determines provision of access is reasonably likely
to endanger or cause harm to the individual or
another person under 45 C.F.R. § 164.524(a)(3)(i),
(ii), and (iii).
No
§ 21.405
Destruction of Sample
Material; Exceptions
Related/
Not Contrary
This law requires material obtained from an
individual for a genetic test to be destroyed except
in certain circumstances. Sample "material" may be
"information" under HIPAA, at 45 C.F.R. § 160.103,
with respect to which there is a reasonable basis to
believe the information can be used to identify the
individual.
This law is not contrary to HIPAA because a
covered entity could comply with this law and with
the requirements under HIPAA. Covered entities
should note HIPAA contains additional requirements
for a written authorization under 45 C.F.R. §
164.508, or for research under 45 C.F.R. §
164.512(i), use and disclosure for judicial
proceedings at 45 C.F.R. § 164.512(e), and for
public health activities at 45 C.F.R. § 164.512(b).
No
Title 2: Protection of Laborers
353