On February 13, 2004, Texas Attorney General Greg Abbott issued an open records decision that addressed the interplay between the HIPAA Privacy Rule and the Texas Public Information Act (the "PIA"), and determined that a Texas governmental entity may not assert the HIPAA Privacy Rule as a basis for withholding protected health information in response to a PIA request. The PIA generally requires a Texas governmental entity, such as a county hospital district, to make information in its possession available to the public. The PIA contains numerous exceptions to the general rule requiring disclosure of information, including an exception that excepts information "considered to be confidential by law, either constitutional, statutory, or by judicial decision." The Attorney General determined that the HIPAA Privacy Rule does not make protected health information "confidential" for purposes of the PIA, such that the protected health information is not subject to disclosure under the PIA, because the HIPAA Privacy Rule specifically permits a covered entity to disclose protected health information if it is required by law to do so. Because a Texas governmental entity is required by law (the PIA) to disclose certain information, the Attorney General opined that disclosures pursuant to the PIA are specifically permitted by the HIPAA Privacy Rule. Therefore, a Texas governmental entity wishing to withhold health information in response to a PIA request must seek a ruling from the Texas Attorney General, and assert the provision of the PIA that excepts the information from disclosure (including confidentiality laws incorporated into the PIA). Potential grounds for asserting confidentiality of health information under the PIA would include, but not be limited to: Section 159.002 of the Texas Occupations Code, which protects physician medical records; Section 241.152 of the Texas Health and Safety Code, which protects hospital health information; and Section 773.091 of the Texas Health and Safety Code, which protects EMS medical records.
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