By Gray H.B. No. 2633 Line and page numbers may not match official copy. Bill not drafted by TLC or Senate E&E. A BILL TO BE ENTITLED 1-1 AN ACT 1-2 relating to the confidentiality of dental patient records. 1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-4 SECTION 1. The Dental Practice Act (Chapter 9, Title 71, 1-5 Civil Statutes) is amended by adding Article 4549-3 to read as 1-6 follows: 1-7 Article 4549-3. CONFIDENTIALITY OF DENTAL PATIENT RECORDS 1-8 Sec. 1. DEFINITION. In this article, "dental record" means 1-9 any record relating to the history, diagnosis, treatment, or 1-10 prognosis of a dental patient. 1-11 Sec. 2. SCOPE OF PRIVILEGE. (a) A communication that 1-12 relates to or is in connection with professional services rendered 1-13 as a dentist, between a dentist and a patient, is confidential and 1-14 privileged and may not be disclosed except as provided by this 1-15 article. 1-16 (b) Records of the identity, diagnosis, evaluation, or 1-17 treatment of a patient by a dentist that are created or maintained 1-18 by a dentist are confidential and privileged and may not be 1-19 disclosed except as provided by this article. 1-20 (c) A person who receives information from confidential 1-21 communications or dental records, other than a person listed under 2-1 Section 5 or 6 of this article who is acting on a patient's behalf, 2-2 may not disclose the information except to the extent that 2-3 disclosure is consistent with the authorized purposes for which the 2-4 information was first obtained. 2-5 (d) The prohibitions of this section continue to apply to 2-6 confidential communications or records concerning a patient 2-7 irrespective of when the patient received the services of a 2-8 dentist. 2-9 Sec. 3. CLAIM OF PRIVILEGE. (a) The privilege of 2-10 confidentiality under this article may be claimed by the patient or 2-11 by a dentist acting on the patient's behalf. 2-12 (b) The dentist may claim the privilege of confidentiality 2-13 only on behalf of the patient. The authority to claim the privilege 2-14 is presumed in the absence of evidence to the contrary. 2-15 Sec. 4. EXCEPTIONS. (a) An exception to the 2-16 confidentiality and privilege requirements under this article 2-17 exists in a court or administrative proceeding if: 2-18 (1) the proceeding is brought by the patient against a 2-19 dentist, including a malpractice proceeding or any criminal or 2-20 license revocation proceeding in which the patient is a complaining 2-21 witness and in which disclosure is relevant to the claims or 2-22 defense of a dentist. 2-23 (2) the patient or a person authorized to act on the 2-24 patient's behalf submits written consent to the release of any 2-25 confidential information, as provided by Section 6 of this article; 3-1 or 3-2 (3) the purpose of the proceeding is to substantiate 3-3 and collect on a claim for dental services rendered to the patient. 3-4 (b) An exception to the confidentiality and privilege 3-5 requirements under this article exists in a civil litigation or 3-6 administrative proceeding that is brought by the patient or another 3-7 person on the patient's behalf if the plaintiff is attempting to 3-8 recover monetary damages for any physical or mental condition, 3-9 including the death of a patient. Information is discoverable in a 3-10 court or administrative proceeding in this state if the information 3-11 is relevant to the proceeding and the court or administrative body 3-12 had jurisdiction over the subject matter under the applicable rules 3-13 of procedure specified for that matter. 3-14 (c) An exception to the confidentiality and privilege 3-15 requirements under this article exists in a disciplinary 3-16 investigation or proceeding against a dentist conducted under the 3-17 Dental Practice Act. The board shall protect the identity of any 3-18 patient whose dental records are examined under this subsection, 3-19 other than those patients: 3-20 (1) covered under subsection (a)(1) of this section; 3-21 or 3-22 (2) who have submitted written consent to the release 3-23 of their dental records as provided by Section 6 of this article. 3-24 (d) An exception to the confidentiality and privilege 3-25 requirements under this article exists in a criminal investigation 4-1 of or criminal proceeding against a dentist in which the board is 4-2 participating or assisting by providing certain records obtained 4-3 from the dentist. The board shall protect the identity of any 4-4 patient whose records are provided in the investigation or 4-5 proceeding, other than patients covered under subsection (a)(1) of 4-6 this section or who have submitted written consent to the release 4-7 of their dental records as provided by Section 6 of this article. 4-8 This subsection does not authorize the release of any confidential 4-9 information for the purpose of instigating or substantiating 4-10 criminal charges against a patient. 4-11 (e) An exception to the confidentiality or privilege 4-12 requirements under this article exists in a criminal prosecution in 4-13 which the patient is a victim, witness, or defendant. Records or 4-14 communications are not discoverable under this subsection until the 4-15 court in which the prosecution is pending makes an in camera 4-16 determination as to the relevancy of the records or communications 4-17 or any portion of the records or communications. That 4-18 determination does not constitute a determination as to the 4-19 admissibility of the records or communications or any portion of 4-20 the records or communications. 4-21 Sec. 5. DISCLOSURE OF OTHERWISE CONFIDENTIAL INFORMATION. 4-22 (a) In circumstances other than those described by Section 4, an 4-23 exception to the confidentiality or privilege requirements of this 4-24 article exists only for, and a dentist may disclose confidential 4-25 information only to: 5-1 (1) a governmental agency, if: 5-2 (A) the disclosure is required or permitted by 5-3 law; and 5-4 (B) the agency protects the identity of any 5-5 patient whose dental records are examined; 5-6 (2) medical or law enforcement personnel, if the 5-7 dentist determines that there is a possibility of: 5-8 (A) imminent physical injury to a patient, the 5-9 dentist or others; or 5-10 (B) immediate mental or emotional injury to the 5-11 patient; 5-12 (3) qualified personnel for the purpose of management 5-13 audits, financial audits, program evaluations, or research; 5-14 (4) a person who presents the written consent of the 5-15 patient or another person authorized to act on the patient's behalf 5-16 for the release of confidential information, as provided by Section 5-17 6 of this article; 5-18 (5) an individual, corporation, or governmental entity 5-19 involved in the payment or collection of fees for services rendered 5-20 by a dentist; or 5-21 (6) another dentist and persons under the direction of 5-22 the dentist who are participating in the diagnosis, evaluation, or 5-23 treatment of the patient. 5-24 (b) A person who receives information under subsection 5-25 (a)(3) of this section may not identify a patient, directly or 6-1 indirectly, in any report of the research, audit, or evaluation or 6-2 otherwise disclose a patient's identity. 6-3 (c) Records reflecting charges and specific services 6-4 rendered may be disclosed only when necessary in the collection of 6-5 fees for services provided by a dentist, professional association, 6-6 or other entity qualified to render or arrange for services. 6-7 (d) Information otherwise confidential under this article 6-8 may be disclosed in an official legislative inquiry regarding a 6-9 state hospital or state school. However, information or records 6-10 that identify a patient or client may not be released for any 6-11 purposes unless the patient gives proper consent to the release. 6-12 This subsection applies only to records created by the state 6-13 hospital, state school, or an employee of the state hospital or 6-14 state school. 6-15 Sec. 6. CONSENT. (a) Consent for the release of 6-16 confidential information must be made in writing and signed by: 6-17 (1) the patient; 6-18 (2) a parent or legal guardian if the patient is a 6-19 minor; 6-20 (3) a legal guardian if the patient has been 6-21 adjudicated incompetent to manage the patient's personal affairs; 6-22 (4) an attorney ad litem appointed for the patient, as 6-23 authorized by: 6-24 (A) the Texas Mental Health Code (Subtitle C, 6-25 Title 7, Health and Safety Code); 7-1 (B) the Persons with Mental Retardation Act 7-2 (Subtitle D, Title 7, Health and Safety Code); 7-3 (C) Subtitle B, Title 6, Health and Safety Code; 7-4 (D) Subtitle E, Title 7, Health and Safety Code; 7-5 (E) Chapter 5, Texas Probate Code; 7-6 (F) Chapter 11, Family Code; or 7-7 (G) another applicable law; or 7-8 (5) a personal representative if the patient is 7-9 deceased. 7-10 (b) The written consent required under this section must 7-11 specify: 7-12 (1) the information and records to be covered by the 7-13 release; 7-14 (2) the reasons or purposes for the release; and 7-15 (3) the person to whom the information is to be 7-16 released. 7-17 (c) The patient or other person authorized to consent has 7-18 the right to withdraw the consent to the release of any 7-19 information. Withdrawal of consent does not affect information 7-20 disclosed before the written notice of the withdrawal. 7-21 Sec. 7. FURNISHING INFORMATION. A person who receives 7-22 information made confidential by this article may disclose the 7-23 information to others only to the extent consistent with the 7-24 authorized purposes for which consent to release the information 7-25 was obtained. 8-1 Sec. 8. SUBSEQUENT DISCLOSURE. (a) A dentist shall furnish 8-2 copies of dental records requested or a summary or narrative of the 8-3 records under a written consent for release of the information as 8-4 provided by Section 6 of this article unless the dentist determines 8-5 that access to the information would be harmful to the physical, 8-6 mental or emotional health of the patient. The dentist may delete 8-7 confidential information about another person who has not consented 8-8 to the release. 8-9 (b) The information shall be furnished by the dentist within 8-10 a reasonable period of time, and reasonable fees for furnishing the 8-11 information shall be paid by the patient or another person acting 8-12 on the patient's behalf. 8-13 Sec. 9. The importance of this legislation and the crowded 8-14 condition of the calendars in both houses create an emergency and 8-15 an imperative public necessity that the constitutional rule 8-16 requiring bills to be read on three several days in each house be 8-17 suspended, and this rule is hereby suspended, and that this Act 8-18 take effect and be in force from and after its passage, and it is 8-19 so enacted.