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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