By Uher H.B. No. 2549
77R7619 JMM-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the creation of a privilege for optometric records and
1-3 communications with an optometrist or therapeutic optometrist and
1-4 to the availability of optometric records.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Chapter 351, Occupations Code, is amended by
1-7 adding Subchapter N to read as follows:
1-8 SUBCHAPTER N. OPTOMETRIC PRIVILEGE
1-9 Sec. 351.651. DEFINITIONS. In this subchapter:
1-10 (1) "Optometric record" means optometric information
1-11 about a patient:
1-12 (A) created or maintained by an optometrist or
1-13 therapeutic optometrist; and
1-14 (B) relating to the history or treatment of the
1-15 patient.
1-16 (2) "Patient" means a person who consults with an
1-17 optometrist or therapeutic optometrist to receive optometric care.
1-18 (3) "Privilege" means the confidentiality privilege
1-19 created by this subchapter.
1-20 Sec. 351.652. SCOPE OF PRIVILEGE. (a) The following
1-21 information is privileged and may not be disclosed except as
1-22 provided by this subchapter:
1-23 (1) a communication between an optometrist or
1-24 therapeutic optometrist and a patient that relates to a
2-1 professional service provided by the optometrist or therapeutic
2-2 optometrist; and
2-3 (2) an optometric record.
2-4 (b) The privilege described by this section applies
2-5 regardless of when the patient received the professional service
2-6 from the optometrist or therapeutic optometrist.
2-7 Sec. 351.653. HOLDER OF PRIVILEGE. (a) The patient is the
2-8 holder of the privilege.
2-9 (b) The following persons may claim the privilege on the
2-10 patient's behalf:
2-11 (1) a person authorized to act on the patient's
2-12 behalf;
2-13 (2) an optometrist or therapeutic optometrist acting
2-14 on the patient's behalf; and
2-15 (3) an agent or employee of a person listed in
2-16 Subdivision (1) or (2).
2-17 (c) A person's authority to claim the privilege is presumed
2-18 in the absence of evidence to the contrary.
2-19 Sec. 351.654. CONSENT TO DISCLOSURE OF PRIVILEGED
2-20 INFORMATION. (a) A person may disclose privileged information if
2-21 the patient consents to the disclosure as provided in this section.
2-22 (b) Consent for the release of privileged information must
2-23 be in writing and be signed by:
2-24 (1) the patient;
2-25 (2) a parent or legal guardian of the patient, if the
2-26 patient is a minor;
2-27 (3) a legal guardian of the patient, if the patient
3-1 has been adjudicated incompetent to manage the patient's personal
3-2 affairs;
3-3 (4) an attorney ad litem appointed for the patient, as
3-4 authorized by:
3-5 (A) Chapter 107, Family Code;
3-6 (B) Subtitle B, Title 6, Health and Safety Code;
3-7 (C) Subtitle C, Title 7, Health and Safety Code;
3-8 (D) Subtitle D, Title 7, Health and Safety Code;
3-9 (E) Subtitle E, Title 7, Health and Safety Code;
3-10 (F) Chapter V, Texas Probate Code; or
3-11 (G) any other law; or
3-12 (5) a personal representative of the patient, if the
3-13 patient is deceased.
3-14 (c) The consent required under this section must specify:
3-15 (1) the information covered by the release;
3-16 (2) the person to whom the information is to be
3-17 released; and
3-18 (3) the purpose for the release.
3-19 (d) A person may withdraw consent granted under this section
3-20 by notifying in writing the person who maintains the information.
3-21 Withdrawal of consent does not affect information disclosed before
3-22 the written notice of the withdrawal is delivered.
3-23 Sec. 351.655. EXCEPTION TO PRIVILEGE FOR CERTAIN
3-24 PROCEEDINGS. (a) The privilege does not apply in a court or
3-25 administrative proceeding if the proceeding is:
3-26 (1) brought by the patient against an optometrist or
3-27 therapeutic optometrist, including a malpractice, criminal, or
4-1 license revocation proceeding, and the disclosure is relevant to a
4-2 claim or defense of the optometrist or therapeutic optometrist; or
4-3 (2) to collect on a claim for optometric services
4-4 rendered to the patient.
4-5 (b) The privilege does not apply to the disclosure of an
4-6 optometric record:
4-7 (1) to the board in a disciplinary investigation or
4-8 proceeding against an optometrist or therapeutic optometrist
4-9 conducted under this subtitle; or
4-10 (2) in a criminal investigation or proceeding against
4-11 an optometrist or therapeutic optometrist in which the board is
4-12 participating or assisting by providing a record obtained from the
4-13 optometrist or therapeutic optometrist.
4-14 (c) The board may not reveal the identity of a patient whose
4-15 optometric record is disclosed under Subsection (b).
4-16 (d) Privileged information is discoverable in a criminal
4-17 prosecution if:
4-18 (1) the patient is a victim, witness, or defendant;
4-19 and
4-20 (2) the court in which the prosecution is pending
4-21 rules, after an in camera review, that the information is relevant
4-22 for discovery purposes.
4-23 (e) Privileged information is admissible in a criminal
4-24 prosecution if:
4-25 (1) the patient is a victim, witness, or defendant;
4-26 and
4-27 (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. 351.656. EXCEPTION TO PRIVILEGE FOR CERTAIN DISCLOSURES
5-4 BY OPTOMETRIST OR THERAPEUTIC OPTOMETRIST. (a) The privilege does
5-5 not apply to the disclosure of information by an optometrist or
5-6 therapeutic optometrist to:
5-7 (1) a governmental agency, if:
5-8 (A) the disclosure is required by another law;
5-9 and
5-10 (B) the agency agrees to keep confidential the
5-11 identity of a patient whose optometric record is disclosed;
5-12 (2) medical or law enforcement personnel, if the
5-13 optometrist or therapeutic optometrist determines that it is more
5-14 likely than not that the following will occur:
5-15 (A) imminent physical injury to the patient, the
5-16 optometrist or therapeutic optometrist, or others; or
5-17 (B) immediate mental or emotional injury to the
5-18 patient;
5-19 (3) a person in relation to a management or financial
5-20 audit, program evaluation, or research, if the person agrees to
5-21 keep confidential the identity of a patient whose optometric record
5-22 is disclosed;
5-23 (4) a person involved in the payment or collection of
5-24 fees for services rendered by an optometrist or therapeutic
5-25 optometrist, if necessary; or
5-26 (5) another optometrist or therapeutic optometrist, or
5-27 a person under the direction of the optometrist or therapeutic
6-1 optometrist, who participates in the diagnosis, evaluation, or
6-2 treatment of the patient.
6-3 (b) A person who receives information under Subsection
6-4 (a)(3) may not disclose a patient's identity in writing.
6-5 (c) A record reflecting a charge or specific service
6-6 provided may be disclosed only when necessary in the collection of
6-7 fees for a service provided by an optometrist or therapeutic
6-8 optometrist, professional association, or other entity qualified to
6-9 provide or arrange for a service.
6-10 Sec. 351.657. EXCEPTION TO PRIVILEGE FOR CERTAIN LEGISLATIVE
6-11 INQUIRIES. A state hospital or state school may disclose an
6-12 optometric record if:
6-13 (1) the state hospital or state school created the
6-14 record;
6-15 (2) an inquiry authorized by the legislature requests
6-16 the information; and
6-17 (3) the entity receiving the record agrees not to
6-18 disclose a patient's identity.
6-19 Sec. 351.658. LIMIT ON DISCLOSURE. A person who receives
6-20 privileged information may disclose the information to another
6-21 person only to the extent consistent with the purpose for which the
6-22 information was obtained.
6-23 Sec. 351.659. REQUEST FOR OPTOMETRIC RECORD: TIMING;
6-24 EXCEPTION. (a) If disclosure of an optometric record is authorized
6-25 under this subchapter, an optometrist or therapeutic optometrist
6-26 shall disclose the optometric record within a reasonable period
6-27 after it is requested but not later than:
7-1 (1) the 30th day after the date on which it is
7-2 requested from the optometrist or therapeutic optometrist; or
7-3 (2) a date ordered by a court.
7-4 (b) An optometrist or therapeutic optometrist may refuse to
7-5 disclose the requested record if the optometrist or therapeutic
7-6 optometrist determines that providing the information would be
7-7 harmful to the physical, mental, or emotional health of the
7-8 patient, except that requests from the board may not be refused.
7-9 If the optometrist or therapeutic optometrist determines that
7-10 disclosing the record would be harmful, the optometrist or
7-11 therapeutic optometrist shall notify the person requesting the
7-12 record and explain why the information would be harmful. The
7-13 person requesting the record may challenge in court the refusal to
7-14 disclose the record. If the court finds that the optometrist or
7-15 therapeutic optometrist made the refusal in bad faith, the court
7-16 may order the disclosure of the record and award costs and
7-17 attorney's fees incurred by the person to obtain the information.
7-18 (c) In disclosing an optometric record under this section,
7-19 an optometrist or therapeutic optometrist shall redact privileged
7-20 information about another person.
7-21 (d) An optometrist or therapeutic optometrist may charge a
7-22 reasonable fee for providing an optometric record under this
7-23 section. For purposes of this subsection, a fee established under
7-24 Section 241.154, Health and Safety Code, is a reasonable fee.
7-25 SECTION 2. (a) This Act takes effect September 1, 2001.
7-26 (b) The change in law made by this Act applies only to a
7-27 suit or proceeding commenced on or after the effective date of this
8-1 Act. A suit or proceeding commenced before the effective date of
8-2 this Act is governed by the law applicable to the suit or
8-3 proceeding immediately before the effective date of this Act, and
8-4 the former law is continued in effect for that purpose.