AN ACT
 1-1     relating to the creation of a privilege for dental records and
 1-2     communications with a dentist and to the availability of dental
 1-3     records.
 1-4           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
 1-5           SECTION 1.  Article 4549-2, Revised Statutes, is amended to
 1-6     read as follows:
 1-7           Art. 4549-2.  DENTAL PRIVILEGE; RECORDS OF THE DENTIST
 1-8           Sec. 1.  DEFINITIONS.  In this article:
 1-9                 (1)  "Board" means the State Board of Dental Examiners.
1-10                 (2)  "Dental record" means dental information about a
1-11     patient:
1-12                       (A)  created or maintained by a dentist; and
1-13                       (B)  relating to the history or treatment of the
1-14     patient.
1-15                 (3)  "Dentist" means a person licensed to practice
1-16     dentistry.
1-17                 (4)  "Patient" means a person who consults with a
1-18     dentist to receive dental care.
1-19                 (5)  "Privilege" means the confidentiality privilege
1-20     created by this article.
1-21           Sec. 2.  SCOPE OF PRIVILEGE.  (a)  The following information
1-22     is privileged and may not be disclosed except as provided by this
1-23     article:
1-24                 (1)  a communication between a dentist and a patient
 2-1     that relates to a professional service provided by the dentist; and
 2-2                 (2)  a dental record.
 2-3           (b)  The privilege described by this section applies
 2-4     regardless of when the patient received the professional service
 2-5     from the dentist.
 2-6           Sec. 3.  HOLDER OF PRIVILEGE.  (a)  The patient is the holder
 2-7     of the privilege.
 2-8           (b)  The following persons may claim the privilege on the
 2-9     patient's behalf:
2-10                 (1)  a person authorized to act on the patient's
2-11     behalf;
2-12                 (2)  a dentist acting on the patient's behalf; and
2-13                 (3)  the agent or employee of a person listed in
2-14     Subdivision (1) or (2) of this subsection.
2-15           (c)  A person's authority to claim the privilege is presumed
2-16     in the absence of evidence to the contrary.
2-17           Sec. 4.  CONSENT TO DISCLOSURE OF PRIVILEGED INFORMATION.
2-18     (a)  A person may disclose privileged information if the patient
2-19     consents to the disclosure as provided in this section.
2-20           (b)  Consent for the release of privileged information must
2-21     be in writing and signed by:
2-22                 (1)  the patient;
2-23                 (2)  a parent or legal guardian of the patient if the
2-24     patient is a minor;
2-25                 (3)  a legal guardian of the patient if the patient has
2-26     been adjudicated incompetent to manage the patient's personal
 3-1     affairs;
 3-2                 (4)  an attorney ad litem appointed for the patient, as
 3-3     authorized by:
 3-4                       (A)  Chapter 107, Family Code;
 3-5                       (B)  Subtitle B, Title 6, Health and Safety Code;
 3-6                       (C)  Subtitle C, Title 7, Health and Safety Code;
 3-7                       (D)  Subtitle D, Title 7, Health and Safety Code;
 3-8                       (E)  Subtitle E, Title 7, Health and Safety Code;
 3-9                       (F)  Chapter V, Texas Probate Code; or
3-10                       (G)  any other law; or
3-11                 (5)  a personal representative of the patient if the
3-12     patient is deceased.
3-13           (c)  The consent required under this section must specify:
3-14                 (1)  the information covered by the release;
3-15                 (2)  the person to whom the information is to be
3-16     released; and
3-17                 (3)  the purpose for the release.
3-18           (d)  A person may withdraw consent granted under this section
3-19     by notifying in writing the person who maintains the information.
3-20     Withdrawal of consent does not affect information disclosed before
3-21     the written notice of the withdrawal was delivered.
3-22           Sec. 5.  EXCEPTION TO PRIVILEGE FOR CERTAIN PROCEEDINGS.
3-23     (a)  The privilege does not apply in a court or administrative
3-24     proceeding if the proceeding is:
3-25                 (1)  brought by the patient against a dentist,
3-26     including a malpractice, criminal, or license revocation
 4-1     proceeding, if the disclosure is relevant to a claim or defense of
 4-2     the dentist; or
 4-3                 (2)  to collect on a claim for dental services rendered
 4-4     to the patient.
 4-5           (b)  The privilege does not apply to the disclosure of a
 4-6     dental record:
 4-7                 (1)  to the board in a disciplinary investigation or
 4-8     proceeding against a dentist conducted under the Dental Practice
 4-9     Act (Chapter 9, Title 71, Revised Statutes); or
4-10                 (2)  in a criminal investigation or proceeding against
4-11     a dentist in which the board is participating or assisting by
4-12     providing a record obtained from the dentist.
4-13           (c)  The board may not reveal the identity of a patient whose
4-14     dental record is disclosed under Subsection (b) of this section.
4-15           (d)  Privileged information is discoverable in a criminal
4-16     prosecution if:
4-17                 (1)  the patient is a victim, witness, or defendant;
4-18     and
4-19                 (2)  the court in which the prosecution is pending
4-20     rules, after an in camera review, that the information is relevant
4-21     for discovery purposes.
4-22           (e)  Privileged information is admissible in a criminal
4-23     prosecution if:
4-24                 (1)  the patient is a victim, witness, or defendant;
4-25     and
4-26                 (2)  the court in which the prosecution is pending
 5-1     rules, after an in camera review, that the information is relevant.
 5-2           (f)  The privilege does not apply to a grand jury subpoena.
 5-3           Sec. 6.  EXCEPTION TO PRIVILEGE FOR CERTAIN DISCLOSURES BY
 5-4     DENTIST.  (a)  The privilege does not apply to the disclosure of
 5-5     information by a dentist to:
 5-6                 (1)  a governmental agency, if:
 5-7                       (A)  the disclosure is required by another law;
 5-8     and
 5-9                       (B)  the agency agrees to keep confidential the
5-10     identity of a patient whose dental record is disclosed;
5-11                 (2)  medical or law enforcement personnel, if the
5-12     dentist determines that it is more likely than not that the
5-13     following will occur:
5-14                       (A)  imminent physical injury to the patient, the
5-15     dentist, or others; or
5-16                       (B)  immediate mental or emotional injury to the
5-17     patient;
5-18                 (3)  a person in relation to a management or financial
5-19     audit, program evaluation, or research, if the person agrees to
5-20     keep confidential the identity of a patient whose dental record is
5-21     disclosed;
5-22                 (4)  a person involved in the payment or collection of
5-23     fees for services rendered by a dentist, if necessary; or
5-24                 (5)  another dentist, or other person under the
5-25     direction of the dentist, who participates in the diagnosis,
5-26     evaluation, or treatment of the patient.
 6-1           (b)  A person who receives information under Subsection
 6-2     (a)(3) of this section may not disclose a patient's identity in
 6-3     writing.
 6-4           (c)  A record reflecting a charge or  specific service
 6-5     provided may be disclosed only when necessary in the collection of
 6-6     fees for a service provided by a dentist, professional association,
 6-7     or other entity qualified to provide or arrange for a service.
 6-8           Sec. 7.  EXCEPTION TO PRIVILEGE FOR CERTAIN LEGISLATIVE
 6-9     INQUIRIES.  A state hospital or state school may disclose a dental
6-10     record if:
6-11                 (1)  the state hospital or state school created the
6-12     record;
6-13                 (2)  an inquiry authorized by the legislature requests
6-14     the information; and
6-15                 (3)  the entity receiving the record agrees not to
6-16     disclose a patient's identity.
6-17           Sec. 8.  LIMIT ON DISCLOSURE.  A person who receives
6-18     privileged information may disclose the information to another
6-19     person only to the extent consistent with the purpose for which the
6-20     information was obtained.
6-21           Sec. 9.  REQUEST FOR DENTAL RECORD:  TIMING; EXCEPTION.
6-22     (a)  If disclosure of a dental record is authorized under this
6-23     article, a dentist shall disclose the dental record within a
6-24     reasonable period after it is requested but not later than:
6-25                 (1)  the 30th day after the date on which it is
6-26     requested from the dentist; or
 7-1                 (2)  a date ordered by a court.
 7-2           (b)  A dentist may refuse to disclose the requested record if
 7-3     the dentist determines that providing the information would be
 7-4     harmful to the physical, mental, or emotional health of the
 7-5     patient, except that requests from the board may not be refused.
 7-6     If the dentist determines that disclosing the record would be
 7-7     harmful, the dentist shall notify the person requesting the record
 7-8     and explain why the information would be harmful.  The person
 7-9     requesting the record may challenge in court the dentist's refusal
7-10     to disclose the record.  If the court determines that the dentist
7-11     made the refusal in bad faith, the court may order the disclosure
7-12     of the record and award costs and attorney's fees incurred by the
7-13     person to obtain the information.
7-14           (c)  In disclosing a dental record under this section, a
7-15     dentist shall redact privileged information about another person.
7-16           (d)  A dentist may charge  a reasonable fee for providing a
7-17     dental record under this section.  For purposes of this subsection,
7-18     a  fee  established under Section 241.154, Health and Safety Code,
7-19     is a reasonable fee.
7-20           Sec. 10.  TRANSFER OF DENTAL RECORDS.  Records of the
7-21     diagnosis made and the treatment performed for and on a dental
7-22     patient shall be the property of the dentist who performs the
7-23     dental service and may not be sold, pledged as collateral, or
7-24     otherwise transferred to any person other than the patient unless
7-25     [the other person is a dentist licensed by the Board and] the
7-26     transfer is made in compliance with this article and rules relating
 8-1     to the transfer of records as may be adopted by the board [Board].
 8-2     Nothing herein shall prevent the voluntary submission of records to
 8-3     insurance companies for the purpose of determining benefits when
 8-4     consent for the disclosure has been granted under Section 4 of this
 8-5     article.
 8-6           SECTION 2.  (a)  This Act takes effect September 1, 1999.
 8-7           (b)  The changes in law made by this Act apply only to a suit
 8-8     or proceeding commenced on or after the effective date of this Act.
 8-9     A suit or proceeding that is commenced before the effective date of
8-10     this Act is governed by the law applicable to the suit or
8-11     proceeding immediately before the effective date of this Act, and
8-12     that law is continued in effect for that purpose.
8-13           (c)  To the extent of any conflict, this Act controls over
8-14     S.B. No. 964, Acts of the 76th Legislature, Regular Session, 1999.
8-15           SECTION 3.  The importance of this legislation and the
8-16     crowded condition of the calendars in both houses create an
8-17     emergency and an imperative public necessity that the
8-18     constitutional rule requiring bills to be read on three several
8-19     days in each house be suspended, and this rule is hereby suspended.
         _______________________________     _______________________________
             President of the Senate              Speaker of the House
               I hereby certify that S.B. No. 1906 passed the Senate on
         May 19, 1999, by a viva-voce vote; and that the Senate concurred in
         House amendment on May 28, 1999, by a viva-voce vote.
                                             _______________________________
                                                 Secretary of the Senate
               I hereby certify that S.B. No. 1906 passed the House, with
         amendment, on May 26, 1999, by a non-record vote.
                                             _______________________________
                                                 Chief Clerk of the House
         Approved:
         _______________________________
                     Date
         _______________________________
                   Governor