HBA-SEB S.B. 1906 76(R)    BILL ANALYSIS


Office of House Bill AnalysisS.B. 1906
By: Sibley
Public Health
5/20/1999
Engrossed



BACKGROUND AND PURPOSE 

Current law provides for the confidentiality of medical patient records,
but does not extend the same protection to dental patient records.  S.B.
1906 provides for the confidentiality of dental patient records, with
certain exceptions.   

RULEMAKING AUTHORITY

It is the opinion of the Office of House Bill Analysis that this bill does
not expressly delegate any additional rulemaking authority to a state
officer, department, agency, or institution. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Article 4549-2, V.T.C.S., as follows:

Art. 4549-2.  New title:  DENTAL PRIVILEGE; RECORDS OF THE DENTIST

Sec. 1.  DEFINITIONS.  Defines "board," "dental record," "dentist,"
"patient," and "privilege."  

Sec. 2.  SCOPE OF PRIVILEGE.  Provides that specific information is
privileged and prohibits it from being disclosed except as provided by this
article.  Establishes that the information includes a communication between
a dentist and a patient that relates to a professional service provided by
the dentist and a dental record.  Provides that the privilege described by
this section applies regardless of when the patient received the
professional service from the dentist. 

Sec. 3.  HOLDER OF PRIVILEGE.  Establishes that the patient is the holder
of the privilege. 
Authorizes  a person authorized to act on the patient's behalf, a dentist
acting on the patient's behalf, and the agent or employee of one of those
persons to claim the privilege on the patient's behalf.  Provides that a
person's authority to claim the privilege is presumed in the absence of
evidence to the contrary. 

Sec. 4.  CONSENT TO DISCLOSURE OF PRIVILEGED INFORMATION.  Authorizes a
person to disclose privileged information if the patient consents to the
disclosure as provided in this section.  Provides that consent for the
release of privileged information must be in writing and signed by the
patient, a parent or legal guardian of the patient if the patient is a
minor, a legal guardian of the patient if the patient has been adjudicated
incompetent to manage the patient's personal affairs, an authorized
attorney ad litem appointed for the patient, or a personal representative
of the patient if the patient is deceased.  Establishes that the consent
required under this section must specify the information covered by the
release, the person to whom the information is to be released, and the
purpose for the release. Authorizes a person to withdraw consent by
notifying in writing the person who maintains the information.  Provides
that withdrawal of consent does not affect information disclosed before the
written notice of the withdrawal was delivered. 

Sec. 5.  EXCEPTION TO PRIVILEGE FOR CERTAIN PROCEEDINGS.  Provides that the
privilege does not apply in a court or administrative proceeding if the
proceeding is  brought by the patient against a dentist, if the disclosure
is relevant to a claim or defense of the dentist,  or to collect on a claim
for dental services rendered to the patient.  Establishes that the
privilege does not apply to the disclosure of a dental record to the State
Board of Dental Examiners (board) in a disciplinary investigation or
proceeding against a dentist conducted under the Dental Practice Act or in
a criminal investigation or proceeding against a dentist in which the board
is participating or assisting by providing a record obtained from the
dentist.  Prohibits the board from revealing the identity of a patient
whose dental record is disclosed.  Specifies that privileged information is
discoverable in a criminal prosecution and admissible if the patient is a
victim, witness, or defendant and the court in which the prosecution is
pending rules, after an in camera review, that the information is relevant. 

Sec. 6.  EXCEPTION TO PRIVILEGE FOR CERTAIN DISCLOSURES BY DENTIST. (a)
Provides that the privilege does not apply to the disclosure of information
by a dentist to a governmental agency if the disclosure is required by
another law and the agency agrees to keep confidential the identity of a
patient whose dental record is disclosed.  Provides that the privilege does
not apply to the disclosure of information by a dentist to a medical or law
enforcement personnel if the dentist determines that it is more likely than
not that imminent physical injury to the patient, the dentist, or others
will occur or immediate mental or emotional injury to the patient will
occur.  Provides that the privilege does not apply to the disclosure of
information by a dentist to a person in relation to a management or
financial audit, program evaluation, or research if the person agrees to
keep confidential the identity of a patient whose dental record is
disclosed, to a person involved in the payment or collection of fees for
services rendered by a dentist, if necessary, or to another dentist, or
other person under the direction of the dentist, who participates in the
diagnosis, evaluation, or treatment of the patient. 

(b)  Prohibits a person who receives information in relation to a
management or financial audit, program evaluation, or research from
disclosing a patient's identity in writing. 

(c)  Authorizes a record reflecting a charge or  specific service provided
to be disclosed only when necessary in the collection of fees for a service
provided by a dentist, professional association, or other entity qualified
to provide or arrange for a service. 

Sec. 7.  EXCEPTION TO PRIVILEGE FOR CERTAIN LEGISLATIVE INQUIRIES.
Authorizes a state hospital or state school to disclose a dental record if
the state hospital or state school created the record, an inquiry
authorized by the legislature requests the information, and the entity
receiving the record agrees not to disclose a patient's identity. 

Sec. 8.  LIMIT ON DISCLOSURE.  Authorizes a person who receives privileged
information to disclose the information to another person only to the
extent consistent with the purpose for which the information was obtained. 

Sec. 9.  REQUEST FOR DENTAL RECORD:  TIMING; EXCEPTION.  (a)  Requires a
dentist to disclose a dental record within a reasonable, specified period
if disclosure of the dental record is authorized under this article.   

(b)  Authorizes a dentist to refuse to disclose the requested record if the
dentist determines that providing the information would be harmful to the
physical, mental, or emotional health of the patient.  Prohibits requests
from the board from being refused.  Requires the dentist to notify the
person requesting the record and to explain why the information would be
harmful if the dentist determines that disclosing the record would be
harmful. Authorizes the person requesting the record to challenge in court
the dentist's refusal to disclose the record.  Authorizes the court to
order the disclosure of the record and award costs and attorney's fees
incurred by the person to obtain the information if the court determines
that the dentist made the refusal in bad faith. 

(c)  Requires a dentist, in disclosing a dental record under this section,
to redact privileged information about another person. 

 (d)  Authorizes a dentist to charge a reasonable fee for providing a
dental record under this section.  Sets forth a reasonable fee. 

Sec. 10.  TRANSFER OF DENTAL RECORDS.  Deletes text prohibiting dental
records from being sold, pledged as collateral, or otherwise transferred to
any person unless the other person is a licensed dentist.  Requires that
nothing prevent the voluntary submission of records to insurance companies
for the purpose of determining benefits when consent for the disclosure has
been granted under Section 4 of this article.  Makes conforming and
nonsubstantive changes.   

SECTION 2.  Effective date: September 1, 1999.
            Makes application of this Act prospective.

SECTION 3.  Emergency clause.