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

Texas Family Code
Section
§ 107.002
Powers and Duties
of Guardian ad
Litem for Child
§ 107.003
Powers and Duties
of Attorney ad Litem
for Child and Amicus
Attorney
Related/
Preemption Is State Law
Explanation
Contrary
Exception Preempted?
Title 5: The Parent-Child Relationship and the Suit Affecting the Parent-Child Relationship
Chapter 107: Special Appointments and Social Studies
Related/
Not Contrary
Related/
Not Contrary
HIPAA permits a covered entity to
disclose PHI in the course of a judicial
or administrative proceeding in
response to a court order. 45 C.F.R. §
164.512(e)(1)(i).
HIPAA permits a covered entity to
disclose PHI in the course of a judicial
or administrative proceeding in
response to a court order. 45 C.F.R. §
164.512(e)(1)(i).
No
No
Recommendation
§ 107.006
Access to Child and
Information Relating
to Child
Related/Not
Contrary as to (a)
& (b);
Related/Contrary
as to (c)
As to (a) & (b): HIPAA permits
appropriately limited disclosure of PHI
that is required by law. 45 C.F.R. §
164.512(a)(1). Also, HIPAA permits a
covered entity to disclose PHI in the
course of a judicial or administrative
proceeding in response to a court order.
45 C.F.R. § 164.512(e)(1)(i).
As to (c): With regard to a court
order to disclose the mental health
record of a child at least twelve years
old, HIPAA permits disclosure to the
extent expressly authorized by court
order, while (c) of this law only permits
disclosure in accordance with "other
law."
None
Yes
Amend subsection (c) to clarify
what "other law" would render the
mental health record of a child at
least 12 years of age privileged or
confidential.
Without knowing which "other law"
is contemplated by subsection (c),
it is extremely difficult to determine
with certainty whether or not this
provision of state law is preempted
by HIPAA.
§ 107.0511
Pre-adoptive Home
Screening
Related/
Not Contrary
HIPAA permits appropriately limited
disclosure of PHI that is required by law.
45 C.F.R. § 164.512(a)(1).
No
§ 107.052
Post-placement
Adoptive Report
Related/
Not Contrary
HIPAA permits appropriately limited
disclosure of PHI that is required by law.
45 C.F.R. § 164.512(a)(1).
No
95