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

Texas Labor Code
Chapter/
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
Employment
Discrimination; 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
Employment
Discrimination;
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
369