Section 4.5 - Regulations and Statutes Governing Confidentiality of Protected Health Information(a) Federal regulations. The following federal regulations pertain to privacy of protected health information (PHI): (1) Code of Federal Regulations, Title 45, Parts 160 and 164, Federal Standards for Privacy of Individually Identifiable Health Information (i.e., Federal Privacy Rule), promulgated by the Secretary of the United States Department of Health and Human Services;(2) Code of Federal Regulations, Title 42, Part 2, Confidentiality of Alcohol and Drug Abuse Patient Records, promulgated by the Secretary of the United States Department of Health and Human Services;(3) Code of Federal Regulations, Title 34, Part 99, governing the disclosure of educational records of school-age children, promulgated by the Secretary of the United States Department of Education; and(4) Code of Federal Regulations, Title 42, Part 51, Subpart D, and Code of Federal Regulations, Title 45, §1386.22, governing access to PHI by advocates for individuals with mental illness and mental retardation, promulgated by the Secretary of the United States Department of Health and Human Services.(b) Federal statutes. (1) The Health Insurance Portability and Accountability Act (HIPAA), 42 USC §1320d et seq., provides the statutory authority for the United States Department of Health and Human Services to promulgate the Federal Privacy Rule.(2)42 USC §10805(a)(4) (Protection and Advocacy for Mentally Ill Individuals) and 42 USC §15043(a)(2)(I) (Protection and Advocacy of Individual Rights) provide the authority for access of PHI by Advocacy, Inc.(3)42 USC §290dd-2 provides the statutory authority to promulgate the federal regulations on confidentiality of alcohol and drug abuse patient records, referenced in subsection (a)(2) of this section.(c) State statutes. (1) Texas Health and Safety Code, Chapter 181, pertains to privacy of medical records.(2) Texas Open Records Act, Texas Government Code, Chapter 552, provides that all information collected, assembled, or maintained in any form by governmental bodies, and agencies operating in part or whole with state funds, in connection with the transaction of official business is public information; however, the act does set out certain exceptions. One such exception is information deemed confidential by law, such as PHI.(3) Texas Health and Safety Code, § 576.005, § 576.0055, and Chapter 611, pertain to the confidentiality of PHI that relates to MHMR services.(4) Texas Health and Safety Code, Chapter 81, Subchapter F, governs the confidentiality of information related to HIV/AIDS test results.(5) The provisions for disclosure of PHI that relates to mental retardation services are contained in the Persons with Mental Retardation Act, Texas Health and Safety Code, Chapter 595. The provisions described in §576.005, §576.0055, and Chapters 595 and 611 of Texas Health and Safety Code should be interpreted together in reaching a determination regarding the use or disclosure of PHI that relates to mental retardation services.(6) Texas Human Resources Code, Chapter 48, establishes authority for the Texas Department of Protective and Regulatory Services (TDPRS) to have access to PHI necessary to conduct investigations into allegations of abuse, neglect, and exploitation of individuals.(7) Texas Medical Practice Act, Texas Occupations Code, Chapter 159, governs physician-patient communication.(8) Texas Health and Safety Code, § 533.009, governs the exchange of PHI between facilities, local authorities, community centers, and their respective contract providers.(9) Texas Health and Safety Code, § 595.005(c), governs the disclosure of educational records of individuals receiving mental retardation services.(10) Texas Government Code, Chapter 559, provides that persons have a right to be informed about information that a state governmental body collects about them, and to have incorrect information that is possessed about them by a state governmental body corrected.(11) Texas Family Code, Chapter 32, governs consent to treatment of a child by a non-parent or the child.(12) Texas Health and Safety Code, Chapter 241, Subchapter G, governs the disclosure of PHI in hospitals licensed under the chapter.(13) Texas Health and Safety Code, § 614.017, governs the exchange of information relating to a special needs offender.(14) Texas Government Code, § 531.042, requires information regarding care and support options be given to at least one family member of a patient or client, if possible.(15) Texas Health and Safety Code, § 572.004(i), requires notification of a minor individual's parent, managing conservator, or guardian when the minor, who has been voluntarily admitted to a state mental health facility by the parent, managing conservator, or guardian, files a written request for discharge.(16) Texas Health and Safety Code, § 576.007(a), requires a state mental health facility to make a reasonable effort to notify an adult individual's family before the adult is discharged or released from the facility if the adult grants permission for the notification.40 Tex. Admin. Code § 4.5
The provisions of this §4.5 adopted to be effective April 23, 2003, 28 TexReg 3340; amended to be effective January 1, 2004, 28 TexReg 11336; Transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841