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

Texas Administrative Code
Section
Path
Related/
Contrary
Explanation
Preemption
Exception
Is State Law
Preempted?
Recommendation
25 TAC § 73.21
Newborn Screening
Part 1 (Tex. Dept. of
State Health
Services) - Ch. 73
(Laboratories)
Related/Not
Contrary
Sets out procedures for submission of screening kits
provided by Bureau of Laboratories & requires
inclusion of identifying information by providers. This
regulation is not contrary to HIPAA because the
disclosures are authorized for purposes of public
health. (45 C.F.R. § 164.512(b)).
No
25 TAC § 91.3
Who Reports,
Access to Records
Part 1 (Tex. Dept. of
State Health
Services) - Ch. 91
(Cancer) - Subch. A
Related/Not
Contrary
Covered entities are permitted to use or disclose
PHI for certain public health activities and may
therefore report this information to the department.
45 C.F.R. § 164.512(b). The disclosure of the
information is also required by law. 45 C.F.R. §
164.512(a)(1).
No
25 TAC § 91.4
What to Report
25 TAC § 91.9
Confidentiality and
Disclosure
Part 1 (Tex. Dept. of
State Health
Services) - Ch. 91
(Cancer) - Subch. A
Part 1 (Tex. Dept. of
State Health
Services) - Ch. 91
(Cancer) - Subch. A
Related/Not
Contrary
Related/Not
Contrary
Covered entities are permitted to use or disclose
PHI for certain public health activities and may
therefore report this information to the department.
45 C.F.R. § 164.512(b). The disclosure of the
information is also required by law. 45 C.F.R. §
164.512(a)(1).
No covered entity.
No
No
To Cancer
Registry: section
should be
amended to delete
reference to prior
version of Chapter
181, Health &
Safety Code.
25 TAC § 91.12
Requests and
Release of
Personal Cancer
Data
Part 1 (Tex. Dept. of
State Health
Services) - Ch. 91
(Cancer) - Subch. A
Related/Not
Contrary
This regulation is not contrary because cancer
registry is not a covered entity. Even if it were,
HIPAA authorizes uses and disclosure for certain
public health activities. (45 C.F.R. ' 164.512(b)).
Finally the IRB of the Department, prior to
consolidation, chose to be HIPAA-compliant and
was also bound by the Common Rule for the
Protection of Human Subjects.
No
37