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

Texas Occupations Code
Section
Related/
Contrary
Explanation
Preemption
Exception
Is State Law
Preempted?
Recommendation
§ 206.159
Immunity and
Reporting
Requirements
Related/
Not Contrary
This law requires medical peer review committees, surgical
assistants, and others to report to the advisory committee of the
BME regarding the acts of a surgical assistant that pose a
threat to public welfare.
This
law is not contrary to HIPAA because a covered entity could
comply with this law and with the requirements under HIPAA.
Subsection (a) of this law makes the report "required by law,"
and HIPAA permits appropriately limited disclosure of PHI that
is required by law, pursuant to 45 C.F.R. § 164.512(a).
Subsection (c) of this law incorporates the laws regarding
medical peer review committee activities from Chapter 160.
Peer review activities under this law are consistent with the
HIPAA allowable use and disclosure for health oversight
activities under 45 CFR § 164.512(d), and use and disclosure
for health care operations at 45 CFR § 164.506.
Confidentiality under this law does not prevent a covered entity
from disclosing a Designated Record Set to which an individual
has a right of access under HIPAA at 45 CFR § 164.524. See
definition of "Designated Record Set" at 45 CFR § 164.501.
See also comments at 65 Fed. Reg. 82,554.
No
§ 206.308
Subpoena
Related/
Not Contrary
This law gives subpoena power to the Board of Medical
Examiners for investigating surgical assistants. This law relates
to privacy of IIHI to the extent that the subpoena seeks records
containing IIHI.
This law is not contrary to HIPAA because it makes compliance
with the subpoena "required by law," HIPAA permitted use and
disclosure pursuant to 45 C.F.R. § 164.512(a), and because it
is consistent with the HIPAA allowable use and disclosure for
health oversight activities under § 164.512(d).
No
411