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

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Group 2: Insurance Code and Civil Statutes Edna Ramón Butts, OAG Bill Bingham, TDI Barbara Holthaus, UT System Deborah Cortez Hiser, Brown McCarroll Group 3: Occupations Code and Labor Code Shelley Dahlberg and Suzanna Basinger, OAG David Garza, D.O., TSBME Kim Caldwell, Novartis Pharmaceuticals Matt Wall, Texas Hospital Association Lee Spangler, Texas Medical Association Group 4: Family Code, Education Code, Civil Practice & Remedies Code, Penal Code, Code of Criminal Procedure Cynthia O’Keeffe, OAG Margaret O’Donnell, CHRISTUS Pamela Beach, MHMR centers counsel Janet Smith, MHMR Peter Kennedy, Graves Dougherty Hearon & Moody Group 5: Government Code, Human Resources Code, Business & Commerce Code, Rules of Civil Procedure, Rules of Appellate Procedure, Transportation Code Kay Hastings, OAG Lee Dickinson, HHSC Noelle Letteri, GLO James Cole, D.D.S., Texas A&M University System Jeff Boyd, Thompson & Knight PROCESS FOR REVIEW AND ANALYSIS OF STATE LAW The Task Force employed several different search techniques to gather all the state laws relevant to the OAG’s preemption analysis. Attorneys at the OAG searched online legal databases, such as Westlaw, using terms related to the privacy of health information. OAG attorneys also reviewed the table of contents in the various Texas codes to search for any laws that the text search did not capture. In addition, the OAG contacted state agencies that designated themselves as covered entities, both hybrid and wholly covered, to determine whether they had encountered any state laws that conflicted with HIPAA. Laws identified by those agencies that were not already part of the OAG’s list were added. Once the various groups began meeting, they -5-
eviewed their assigned codes to look for any additional statutes that had not been captured by the initial searches. In addition, because HIPAA defines “state law” broadly to include “a constitution, statute, regulation, rule, common law, or other State action having the force and effect of law,” the groups also endeavored to find any relevant provisions outside of Texas’ statutes. See 45 C.F.R. § 160.202 for definition of “state law.” Once the groups identified all provisions of state law that could potentially conflict with HIPAA, they sorted the laws into the following categories: 1. State laws reviewed, but determined not to be related to HIPAA; 2. State laws reviewed and determined to be related to HIPAA, but not contrary to it; 3. State laws reviewed, determined to be related to HIPAA and contrary to it, but excepted from preemption under HIPAA’s exceptions; and 4. State laws reviewed, determined to be related to, contrary to, and preempted by HIPAA. The table of state laws was prepared as part of this report and includes laws that were found not to be related to or contrary to HIPAA, as well as laws that were found to be preempted by HIPAA. The Task Force designed the table to provide the Legislature with a complete record of the Task Force’s process, not just a list of state laws it found to be preempted by HIPAA. Scope of Review Senate Bill 1136 instructed the Attorney General to “perform an analysis of state law to determine which provisions of state law related to the privacy of individually identifiable health information are preempted by the Health Insurance Portability and Accountability Act and Privacy Standards.” TEX. HEALTH & SAFETY CODE ANN. § 181.251 (Vernon Supp. 2004-05). At the same time, the Attorney General was charged with preparing this report to the Legislature, to “identif[y] the laws the attorney general believes are preempted by the Health Insurance Portability and Accountability Act and Privacy Standards.” Id. § 181.252. Although the HIPAA statute concerns a number of subjects such as insurance portability and administrative simplification, the Task Force limited its review, pursuant to Senate Bill 1136, to a preemption analysis of the privacy provisions of the HIPAA statute and the HIPAA Privacy Rule only. The HIPAA Privacy Rule, promulgated pursuant to the HIPAA statute, is a comprehensive and technical set of privacy regulations. Consequently, in each case the principal task was to measure state law against the Privacy Rule. As a starting point, the Task Force considered the broadest class of state laws that posed a potential for conflict with HIPAA. Senate Bill 1136 specifies a review of “state law related to the privacy of individually identifiable health information,” which is also a HIPAA-defined phrase. HIPAA defines “related to the privacy of individually identifiable health information” -6-
Page 1 and 2: REPORT OF THE OFFICE OF THE ATTORNE
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