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.