By: Sibley S.B. No. 1906
A BILL TO BE ENTITLED
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 Sec. 6. EXCEPTION TO PRIVILEGE FOR CERTAIN DISCLOSURES BY
5-3 DENTIST. (a) The privilege does not apply to the disclosure of
5-4 information by a dentist to:
5-5 (1) a governmental agency, if:
5-6 (A) the disclosure is required by another law;
5-7 and
5-8 (B) the agency agrees to keep confidential the
5-9 identity of a patient whose dental record is disclosed;
5-10 (2) medical or law enforcement personnel, if the
5-11 dentist determines that it is more likely than not that the
5-12 following will occur:
5-13 (A) imminent physical injury to the patient, the
5-14 dentist, or others; or
5-15 (B) immediate mental or emotional injury to the
5-16 patient;
5-17 (3) a person in relation to a management or financial
5-18 audit, program evaluation, or research, if the person agrees to
5-19 keep confidential the identity of a patient whose dental record is
5-20 disclosed;
5-21 (4) a person involved in the payment or collection of
5-22 fees for services rendered by a dentist, if necessary; or
5-23 (5) another dentist, or other person under the
5-24 direction of the dentist, who participates in the diagnosis,
5-25 evaluation, or treatment of the patient.
5-26 (b) A person who receives information under Subsection
6-1 (a)(3) of this section may not disclose a patient's identity in
6-2 writing.
6-3 (c) A record reflecting a charge or specific service
6-4 provided may be disclosed only when necessary in the collection of
6-5 fees for a service provided by a dentist, professional association,
6-6 or other entity qualified to provide or arrange for a service.
6-7 Sec. 7. EXCEPTION TO PRIVILEGE FOR CERTAIN LEGISLATIVE
6-8 INQUIRIES. A state hospital or state school may disclose a dental
6-9 record if:
6-10 (1) the state hospital or state school created the
6-11 record;
6-12 (2) an inquiry authorized by the legislature requests
6-13 the information; and
6-14 (3) the entity receiving the record agrees not to
6-15 disclose a patient's identity.
6-16 Sec. 8. LIMIT ON DISCLOSURE. A person who receives
6-17 privileged information may disclose the information to another
6-18 person only to the extent consistent with the purpose for which the
6-19 information was obtained.
6-20 Sec. 9. REQUEST FOR DENTAL RECORD: TIMING; EXCEPTION.
6-21 (a) If disclosure of a dental record is authorized under this
6-22 article, a dentist shall disclose the dental record within a
6-23 reasonable period after it is requested but not later than:
6-24 (1) the 30th day after the date on which it is
6-25 requested from the dentist; or
6-26 (2) a date ordered by a court.
7-1 (b) A dentist may refuse to disclose the requested record if
7-2 the dentist determines that providing the information would be
7-3 harmful to the physical, mental, or emotional health of the
7-4 patient, except that requests from the board may not be refused.
7-5 If the dentist determines that disclosing the record would be
7-6 harmful, the dentist shall notify the person requesting the record
7-7 and explain why the information would be harmful. The person
7-8 requesting the record may challenge in court the dentist's refusal
7-9 to disclose the record. If the court determines that the dentist
7-10 made the refusal in bad faith, the court may order the disclosure
7-11 of the record and award costs and attorney's fees incurred by the
7-12 person to obtain the information.
7-13 (c) In disclosing a dental record under this section, a
7-14 dentist shall redact privileged information about another person.
7-15 (d) A dentist may charge a reasonable fee for providing a
7-16 dental record under this section. For purposes of this subsection,
7-17 a fee established under Section 241.154, Health and Safety Code,
7-18 is a reasonable fee.
7-19 Sec. 10. TRANSFER OF DENTAL RECORDS. Records of the
7-20 diagnosis made and the treatment performed for and on a dental
7-21 patient shall be the property of the dentist who performs the
7-22 dental service and may not be sold, pledged as collateral, or
7-23 otherwise transferred to any person other than the patient unless
7-24 [the other person is a dentist licensed by the Board and] the
7-25 transfer is made in compliance with this article and rules relating
7-26 to the transfer of records as may be adopted by the board [Board].
8-1 Nothing herein shall prevent the voluntary submission of records to
8-2 insurance companies for the purpose of determining benefits when
8-3 consent for the disclosure has been granted under Section 4 of this
8-4 article.
8-5 SECTION 2. (a) This Act takes effect September 1, 1999.
8-6 (b) The changes in law made by this Act apply only to a suit
8-7 or proceeding commenced on or after the effective date of this Act.
8-8 A suit or proceeding that is commenced before the effective date of
8-9 this Act is governed by the law applicable to the suit or
8-10 proceeding immediately before the effective date of this Act, and
8-11 that law is continued in effect for that purpose.
8-12 SECTION 3. The importance of this legislation and the
8-13 crowded condition of the calendars in both houses create an
8-14 emergency and an imperative public necessity that the
8-15 constitutional rule requiring bills to be read on three several
8-16 days in each house be suspended, and this rule is hereby suspended.