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
§ 301.452
Grounds for
Disciplinary
Action
Related/
Not Contrary
This law addresses grounds for denial of a nursing license or
disciplinary action including: (11) adjudication of mental
incompetency and (12) lack of fitness to practice because of a
mental or physical health condition that could result in injury to a
patient or the public.
This law is not contrary to HIPAA because the BNE is not a
covered entity.
No
This law states any person may initiate a proceeding against a
nurse with the BNE by submitting a complaint. The BNE
conducts an investigation to determine whether patients are
harmed by the nurse's practice or whether an act in § 301.452
was committed.
§ 301.457
Complaint and
Investigation
Related/
Not Contrary
This law relates to privacy of IIHI to the extent that the
complaint may contain information in § 301.452 (11) or (12),
above. This law is not contrary to HIPAA because a covered
entity could comply with this law and with the requirements
under HIPAA. The BNE is not a covered entity.
No
To the extent that this law includes other groups that may be
covered entities, HIPAA contains additional requirements for
use and disclosure for health oversight activities under 45
C.F.R. § 164.512(d), and use and disclosure for health care
operations at § 164.506.
§ 301.460
Access to
Information
Related/
Not Contrary
This law gives access to information for a nurse who is the
subject of a disciplinary action by the BNE.
This law is not contrary to HIPAA because the BNE is not a
covered entity.
No
427