1-1 By: Sibley S.B. No. 1906
1-2 (In the Senate - Filed May 5, 1999; May 5, 1999, read first
1-3 time and referred to Committee on Health Services; May 12, 1999,
1-4 reported favorably by the following vote: Yeas 4, Nays 0;
1-5 May 12, 1999, sent to printer.)
1-6 A BILL TO BE ENTITLED
1-7 AN ACT
1-8 relating to the creation of a privilege for dental records and
1-9 communications with a dentist and to the availability of dental
1-10 records.
1-11 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-12 SECTION 1. Article 4549-2, Revised Statutes, is amended to
1-13 read as follows:
1-14 Art. 4549-2. DENTAL PRIVILEGE; RECORDS OF THE DENTIST[.]
1-15 Sec. 1. DEFINITIONS. In this article:
1-16 (1) "Board" means the State Board of Dental Examiners.
1-17 (2) "Dental record" means dental information about a
1-18 patient:
1-19 (A) created or maintained by a dentist; and
1-20 (B) relating to the history or treatment of the
1-21 patient.
1-22 (3) "Dentist" means a person licensed to practice
1-23 dentistry.
1-24 (4) "Patient" means a person who consults with a
1-25 dentist to receive dental care.
1-26 (5) "Privilege" means the confidentiality privilege
1-27 created by this article.
1-28 Sec. 2. SCOPE OF PRIVILEGE. (a) The following information
1-29 is privileged and may not be disclosed except as provided by this
1-30 article:
1-31 (1) a communication between a dentist and a patient
1-32 that relates to a professional service provided by the dentist; and
1-33 (2) a dental record.
1-34 (b) The privilege described by this section applies
1-35 regardless of when the patient received the professional service
1-36 from the dentist.
1-37 Sec. 3. HOLDER OF PRIVILEGE. (a) The patient is the holder
1-38 of the privilege.
1-39 (b) The following persons may claim the privilege on the
1-40 patient's behalf:
1-41 (1) a person authorized to act on the patient's
1-42 behalf;
1-43 (2) a dentist acting on the patient's behalf; and
1-44 (3) the agent or employee of a person listed in
1-45 Subdivision (1) or (2) of this subsection.
1-46 (c) A person's authority to claim the privilege is presumed
1-47 in the absence of evidence to the contrary.
1-48 Sec. 4. CONSENT TO DISCLOSURE OF PRIVILEGED INFORMATION.
1-49 (a) A person may disclose privileged information if the patient
1-50 consents to the disclosure as provided in this section.
1-51 (b) Consent for the release of privileged information must
1-52 be in writing and signed by:
1-53 (1) the patient;
1-54 (2) a parent or legal guardian of the patient if the
1-55 patient is a minor;
1-56 (3) a legal guardian of the patient if the patient has
1-57 been adjudicated incompetent to manage the patient's personal
1-58 affairs;
1-59 (4) an attorney ad litem appointed for the patient, as
1-60 authorized by:
1-61 (A) Chapter 107, Family Code;
1-62 (B) Subtitle B, Title 6, Health and Safety Code;
1-63 (C) Subtitle C, Title 7, Health and Safety Code;
1-64 (D) Subtitle D, Title 7, Health and Safety Code;
2-1 (E) Subtitle E, Title 7, Health and Safety Code;
2-2 (F) Chapter V, Texas Probate Code; or
2-3 (G) any other law; or
2-4 (5) a personal representative of the patient if the
2-5 patient is deceased.
2-6 (c) The consent required under this section must specify:
2-7 (1) the information covered by the release;
2-8 (2) the person to whom the information is to be
2-9 released; and
2-10 (3) the purpose for the release.
2-11 (d) A person may withdraw consent granted under this section
2-12 by notifying in writing the person who maintains the information.
2-13 Withdrawal of consent does not affect information disclosed before
2-14 the written notice of the withdrawal was delivered.
2-15 Sec. 5. EXCEPTION TO PRIVILEGE FOR CERTAIN PROCEEDINGS.
2-16 (a) The privilege does not apply in a court or administrative
2-17 proceeding if the proceeding is:
2-18 (1) brought by the patient against a dentist,
2-19 including a malpractice, criminal, or license revocation
2-20 proceeding, if the disclosure is relevant to a claim or defense of
2-21 the dentist; or
2-22 (2) to collect on a claim for dental services rendered
2-23 to the patient.
2-24 (b) The privilege does not apply to the disclosure of a
2-25 dental record:
2-26 (1) to the board in a disciplinary investigation or
2-27 proceeding against a dentist conducted under the Dental Practice
2-28 Act (Chapter 9, Title 71, Revised Statutes); or
2-29 (2) in a criminal investigation or proceeding against
2-30 a dentist in which the board is participating or assisting by
2-31 providing a record obtained from the dentist.
2-32 (c) The board may not reveal the identity of a patient whose
2-33 dental record is disclosed under Subsection (b) of this section.
2-34 (d) Privileged information is discoverable in a criminal
2-35 prosecution if:
2-36 (1) the patient is a victim, witness, or defendant;
2-37 and
2-38 (2) the court in which the prosecution is pending
2-39 rules, after an in camera review, that the information is relevant
2-40 for discovery purposes.
2-41 (e) Privileged information is admissible in a criminal
2-42 prosecution if:
2-43 (1) the patient is a victim, witness, or defendant;
2-44 and
2-45 (2) the court in which the prosecution is pending
2-46 rules, after an in camera review, that the information is relevant.
2-47 Sec. 6. EXCEPTION TO PRIVILEGE FOR CERTAIN DISCLOSURES BY
2-48 DENTIST. (a) The privilege does not apply to the disclosure of
2-49 information by a dentist to:
2-50 (1) a governmental agency, if:
2-51 (A) the disclosure is required by another law;
2-52 and
2-53 (B) the agency agrees to keep confidential the
2-54 identity of a patient whose dental record is disclosed;
2-55 (2) medical or law enforcement personnel, if the
2-56 dentist determines that it is more likely than not that the
2-57 following will occur:
2-58 (A) imminent physical injury to the patient, the
2-59 dentist, or others; or
2-60 (B) immediate mental or emotional injury to the
2-61 patient;
2-62 (3) a person in relation to a management or financial
2-63 audit, program evaluation, or research, if the person agrees to
2-64 keep confidential the identity of a patient whose dental record is
2-65 disclosed;
2-66 (4) a person involved in the payment or collection of
2-67 fees for services rendered by a dentist, if necessary; or
2-68 (5) another dentist, or other person under the
2-69 direction of the dentist, who participates in the diagnosis,
3-1 evaluation, or treatment of the patient.
3-2 (b) A person who receives information under Subsection
3-3 (a)(3) of this section may not disclose a patient's identity in
3-4 writing.
3-5 (c) A record reflecting a charge or specific service
3-6 provided may be disclosed only when necessary in the collection of
3-7 fees for a service provided by a dentist, professional association,
3-8 or other entity qualified to provide or arrange for a service.
3-9 Sec. 7. EXCEPTION TO PRIVILEGE FOR CERTAIN LEGISLATIVE
3-10 INQUIRIES. A state hospital or state school may disclose a dental
3-11 record if:
3-12 (1) the state hospital or state school created the
3-13 record;
3-14 (2) an inquiry authorized by the legislature requests
3-15 the information; and
3-16 (3) the entity receiving the record agrees not to
3-17 disclose a patient's identity.
3-18 Sec. 8. LIMIT ON DISCLOSURE. A person who receives
3-19 privileged information may disclose the information to another
3-20 person only to the extent consistent with the purpose for which the
3-21 information was obtained.
3-22 Sec. 9. REQUEST FOR DENTAL RECORD: TIMING; EXCEPTION.
3-23 (a) If disclosure of a dental record is authorized under this
3-24 article, a dentist shall disclose the dental record within a
3-25 reasonable period after it is requested but not later than:
3-26 (1) the 30th day after the date on which it is
3-27 requested from the dentist; or
3-28 (2) a date ordered by a court.
3-29 (b) A dentist may refuse to disclose the requested record if
3-30 the dentist determines that providing the information would be
3-31 harmful to the physical, mental, or emotional health of the
3-32 patient. If the dentist determines that disclosing the record
3-33 would be harmful, the dentist shall notify the person requesting
3-34 the record and explain why the information would be harmful. The
3-35 person requesting the record may challenge in court the dentist's
3-36 refusal to disclose the record. If the court determines that the
3-37 dentist made the refusal in bad faith, the court may order the
3-38 disclosure of the record and award costs and attorney's fees
3-39 incurred by the person to obtain the information.
3-40 (c) In disclosing a dental record under this section, a
3-41 dentist shall redact privileged information about another person.
3-42 (d) A dentist may charge a reasonable fee for providing a
3-43 dental record under this section. For purposes of this subsection,
3-44 a fee established under Section 241.154, Health and Safety Code,
3-45 is a reasonable fee.
3-46 Sec. 10. TRANSFER OF DENTAL RECORDS. Records of the
3-47 diagnosis made and the treatment performed for and on a dental
3-48 patient shall be the property of the dentist who performs the
3-49 dental service and may not be sold, pledged as collateral, or
3-50 otherwise transferred to any person other than the patient unless
3-51 [the other person is a dentist licensed by the Board and] the
3-52 transfer is made in compliance with this article and rules relating
3-53 to the transfer of records as may be adopted by the Board. Nothing
3-54 herein shall prevent the voluntary submission of records to
3-55 insurance companies for the purpose of determining benefits when
3-56 consent for the disclosure has been granted under Section 4 of this
3-57 article.
3-58 SECTION 2. (a) This Act takes effect September 1, 1999.
3-59 (b) The changes in law made by this Act apply only to a suit
3-60 or proceeding commenced on or after the effective date of this Act.
3-61 A suit or proceeding that is commenced before the effective date of
3-62 this Act is governed by the law applicable to the suit or
3-63 proceeding immediately before the effective date of this Act, and
3-64 that law is continued in effect for that purpose.
3-65 SECTION 3. The importance of this legislation and the
3-66 crowded condition of the calendars in both houses create an
3-67 emergency and an imperative public necessity that the
3-68 constitutional rule requiring bills to be read on three several
3-69 days in each house be suspended, and this rule is hereby suspended.
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