2005 Texas Occupations Code CHAPTER 258. PRACTICE BY DENTIST

OCCUPATIONS CODE

CHAPTER 258. PRACTICE BY DENTIST

SUBCHAPTER A. DELEGATION BY DENTIST


	§ 258.001. IMPERMISSIBLE DELEGATIONS.  A dentist may not 
delegate:        
		(1)  an act to an individual who, by board order, is 
prohibited from performing the act;
		(2)  any of the following acts to a person not licensed 
as a dentist or dental hygienist:
			(A)  the removal of calculus, deposits, or 
accretions from the natural and restored surfaces of exposed human 
teeth and restorations in the human mouth;
			(B)  root planing or the smoothing and polishing 
of roughened root surfaces or exposed human teeth;  or
			(C)  any other act the delegation of which is 
prohibited by board rule;    
		(3)  any of the following acts to a person not licensed 
as a dentist:       
			(A)  comprehensive examination or diagnosis and 
treatment planning;        
			(B)  a surgical or cutting procedure on hard or 
soft tissue;               
			(C)  the prescription of a drug, medication, or 
work authorization;        
			(D)  the taking of an impression for a final 
restoration, appliance, or prosthesis;
			(E)  the making of an intraoral occlusal 
adjustment;                       
			(F)  direct pulp capping, pulpotomy, or any other 
endodontic procedure;    
			(G)  the final placement and intraoral adjustment 
of a fixed or removable appliance;  or
			(H)  the placement of any final restoration;  or                             
		(4)  the authority to an individual to administer a 
local anesthetic agent, inhalation sedative agent, parenteral 
sedative agent, or general anesthetic agent if the individual is 
not licensed as:
			(A)  a dentist with a permit issued by the board 
for the procedure being performed, if a permit is required;
			(B)  a certified registered nurse anesthetist 
licensed by the Board of Nurse Examiners, only if the delegating 
dentist holds a permit issued by the board for the procedure being 
performed, if a permit is required;  or
			(C)  a physician anesthesiologist licensed by the 
Texas State Board of Medical Examiners.

Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999.                    


	§ 258.002. DELEGATION TO DENTAL ASSISTANT.  (a) A 
licensed dentist may delegate to a qualified and trained dental 
assistant acting under the dentist's direct supervision any dental 
act that a reasonable and prudent dentist would find is within the 
scope of sound dental judgment to delegate if:
		(1)  in the opinion of the delegating dentist, the act:                       
			(A)  can be properly and safely performed by the 
person to whom the dental act is delegated;  and
			(B)  is performed in a customary manner and is not 
in violation of this subtitle or any other statute;  and
		(2)  the person to whom the dental act is delegated does 
not represent to the public that the person is authorized to 
practice dentistry.
	(b)  A licensed dentist may delegate, under Subsection (a), 
the application of a pit and fissure sealant to a dental assistant 
if the dentist is a Medicaid provider or the dentist practices in an 
area determined to be underserved by the Texas Department of 
Health.  Cleansing of the occlusal and smooth surfaces of the teeth 
by a dental assistant is allowed immediately prior to and for the 
sole purpose of preparing the tooth area for the placement of pit 
and fissure sealants or orthodontic bonding resin, and shall not be 
billed as a prophylaxis.
	(c)  The board by rule shall establish guidelines regarding 
the types of dental acts that may be properly or safely delegated by 
a dentist, including a determination of which delegated dental 
acts, if any, require competency testing before a person may 
perform the act.

Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999.  Amended 
by Acts 2001, 77th Leg., ch. 1470, § 4.01, eff. Sept. 1, 2001;  
Acts 2003, 78th Leg., ch. 1144, § 1, eff. June 20, 2003.


	§ 258.003. RESPONSIBILITY OF DELEGATING DENTIST.  A 
delegating dentist is responsible for a dental act performed by the 
person to whom the dentist delegates the act.

Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999.                    

SUBCHAPTER B. GENERAL PRACTICE PROVISIONS


	§ 258.051. DENTIST RECORDS.  (a) The records of a 
diagnosis made and treatment performed for and on a dental patient 
are the property of the dentist performing the dental service.
	(b)  A dentist's records may not be sold, pledged as 
collateral, or transferred to any person other than the patient 
unless the transfer is made in compliance with Subchapter C and 
board rules.
	(c)  This section does not prevent the voluntary submission 
of records to an insurance company to determine benefits when 
consent for the disclosure has been granted under Section 258.104.

Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999.  Amended 
by Acts 2001, 77th Leg., ch. 1420, § 14.086(a), eff. Sept. 1, 
2001.


	§ 258.052. CASE HISTORIES AND PHYSICAL EVALUATIONS.  (a) 
A dentist may take a complete case history and perform a complete 
physical evaluation that may be used to admit a patient to a 
hospital for the practice of dentistry if the activity is necessary 
in the exercise of due care in the practice of dentistry.
	(b)  A dentist is not automatically entitled to membership on 
a hospital's medical staff or to exercise clinical privileges at a 
hospital solely because the dentist is licensed in this state or 
because the dentist is authorized to take a case history and perform 
a physical evaluation.
	(c)  A dentist may not be denied membership on a hospital's 
medical staff or the right to the exercise of clinical privileges at 
a hospital solely because the person is a dentist rather than a 
physician.

Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999.                    


	§ 258.053. USE OF CERTAIN DRUGS.  (a) In this section, 
"narcotic drugs," "dangerous drugs," and "controlled substances" 
have the meanings defined or recognized by federal law or the law of 
this state.
	(b)  A dentist may not:                                                        
		(1)  prescribe, provide, obtain, order, administer, 
possess, dispense, give, or deliver to or for any person a narcotic 
drug, dangerous drug, or controlled substance:
			(A)  that is not necessary or required;  or                                  
			(B)  the use or possession of which would promote 
addiction to the drug or substance;  or
		(2)  aid, abet, or cause another person to engage in an 
action described by Subdivision (1).

Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999.                    


	§ 258.054. USE OF X-RAY EQUIPMENT.  (a) A dentist may 
authorize a qualified person to perform beam calibration and 
characterization, quality assurance, instrument specification, 
acceptance testing, shielding design, or protection analysis on 
radiation-emitting equipment or radiopharmaceuticals for a 
procedure that involves the diagnosis or treatment of disease or 
another dental condition in humans.
	(b)  A dentist's authorization and the performance of 
authorized activities by a qualified person does not constitute the 
practice of medical physics under Chapter 602.
	(c)  A dentist may not authorize a dental assistant to make a 
dental x-ray unless the dental assistant holds an x-ray certificate 
issued under Section 265.005.

Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999.  Amended 
by Acts 2005, 79th Leg., ch. 810, § 5, eff. Sept. 1, 2005.

SUBCHAPTER C. DENTAL PRIVILEGE


	§ 258.101. DEFINITIONS.  In this subchapter:                                
		(1)  "Dental record" means dental information about a 
patient:              
			(A)  created or maintained by a dentist;  and                                
			(B)  relating to the history or treatment of the 
patient.                  
		(2)  "Dentist" means a person licensed to practice 
dentistry.               
		(3)  "Patient" means a person who consults with a 
dentist to receive dental care.
		(4)  "Privilege" means the confidentiality privilege 
created by this subchapter.

Added by Acts 2001, 77th Leg., ch. 1420, § 14.086(b), eff. Sept. 
1, 2001.


	§ 258.102. SCOPE OF PRIVILEGE.  (a) The following 
information is privileged and may not be disclosed except as 
provided by this subchapter:
		(1)  a communication between a dentist and a patient 
that relates to a professional service provided by the dentist;  and
		(2)  a dental record.                                                         
	(b)  The privilege described by this section applies 
regardless of when the patient received the professional service 
from the dentist.

Added by Acts 2001, 77th Leg., ch. 1420, § 14.086(b), eff. Sept. 
1, 2001.


	§ 258.103. HOLDER OF PRIVILEGE.  (a) The patient is the 
holder of the privilege.
	(b)  The following persons may claim the privilege on the 
patient's behalf:  
		(1)  a person authorized to act on the patient's behalf;                      
		(2)  a dentist acting on the patient's behalf;  and                           
		(3)  an agent or employee of a person listed in 
Subdivision (1) or (2).     
	(c)  A person's authority to claim the privilege is presumed 
in the absence of evidence to the contrary.

Added by Acts 2001, 77th Leg., ch. 1420, § 14.086(b), eff. Sept. 
1, 2001.


	§ 258.104. CONSENT TO DISCLOSURE OF PRIVILEGED 
INFORMATION.  (a) A person may disclose privileged information if 
the patient consents to the disclosure as provided in this section.
	(b)  Consent for the release of privileged information must 
be in writing and be signed by:
		(1)  the patient;                                                             
		(2)  a parent or legal guardian of the patient, if the 
patient is a minor;  
		(3)  a legal guardian of the patient, if the patient has 
been adjudicated incompetent to manage the patient's personal 
affairs;
		(4)  an attorney ad litem appointed for the patient, as 
authorized by:      
			(A)  Chapter 107, Family Code;                                               
			(B)  Subtitle B, Title 6, Health and Safety Code;                            
			(C)  Subtitle C, Title 7, Health and Safety Code;                            
			(D)  Subtitle D, Title 7, Health and Safety Code;                            
			(E)  Subtitle E, Title 7, Health and Safety Code;                            
			(F)  Chapter V, Texas Probate Code;  or                                      
			(G)  any other law;  or                                                      
		(5)  a personal representative of the patient, if the 
patient is deceased.  
	(c)  The consent required under this section must specify:                     
		(1)  the information covered by the release;                                  
		(2)  the person to whom the information is to be 
released;  and             
		(3)  the purpose for the release.                                             
	(d)  A person may withdraw consent granted under this section 
by notifying in writing the person who maintains the information.  
Withdrawal of consent does not affect information disclosed before 
the written notice of the withdrawal is delivered.

Added by Acts 2001, 77th Leg., ch. 1420, § 14.086(b), eff. Sept. 
1, 2001.


	§ 258.105. EXCEPTION TO PRIVILEGE FOR CERTAIN 
PROCEEDINGS.  (a) The privilege does not apply in a court or 
administrative proceeding if the proceeding is:
		(1)  brought by the patient against a dentist, 
including a malpractice, criminal, or license revocation 
proceeding, and the disclosure is relevant to a claim or defense of 
the dentist;  or
		(2)  to collect on a claim for dental services rendered 
to the patient.     
	(b)  The privilege does not apply to the disclosure of a 
dental record:      
		(1)  to the board in a disciplinary investigation or 
proceeding against a dentist conducted under this subtitle;  or
		(2)  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.
	(c)  The board may not reveal the identity of a patient whose 
dental record is disclosed under Subsection (b).
	(d)  Privileged information is discoverable in a criminal 
prosecution if:    
		(1)  the patient is a victim, witness, or defendant;  
and                   
		(2)  the court in which the prosecution is pending 
rules, after an in camera review, that the information is relevant 
for discovery purposes.
	(e)  Privileged information is admissible in a criminal 
prosecution if:      
		(1)  the patient is a victim, witness, or defendant;  
and                   
		(2)  the court in which the prosecution is pending 
rules, after an in camera review, that the information is relevant.
	(f)  The privilege does not apply to a grand jury subpoena.                    

Added by Acts 2001, 77th Leg., ch. 1420, § 14.086(b), eff. Sept. 
1, 2001.


	§ 258.106. EXCEPTION TO PRIVILEGE FOR CERTAIN DISCLOSURES 
BY DENTIST.  (a) The privilege does not apply to the disclosure of 
information by a dentist to:
		(1)  a governmental agency, if:                                               
			(A)  the disclosure is required by another law;  
and                       
			(B)  the agency agrees to keep confidential the 
identity of a patient whose dental record is disclosed;
		(2)  medical or law enforcement personnel, if the 
dentist determines that it is more likely than not that the 
following will occur:
			(A)  imminent physical injury to the patient, the 
dentist, or others;  or  
			(B)  immediate mental or emotional injury to the 
patient;                  
		(3)  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;
		(4)  a person involved in the payment or collection of 
fees for services rendered by a dentist, if necessary;  or
		(5)  another dentist, or a person under the direction 
of the dentist, who participates in the diagnosis, evaluation, or 
treatment of the patient.
	(b)  A person who receives information under Subsection 
(a)(3) may not disclose a patient's identity in writing.
	(c)  A record reflecting a charge or specific service 
provided may 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.

Added by Acts 2001, 77th Leg., ch. 1420, § 14.086(b), eff. Sept. 
1, 2001.


	§ 258.107. EXCEPTION TO PRIVILEGE FOR CERTAIN LEGISLATIVE 
INQUIRIES.  A state hospital or state school may disclose a dental 
record if:
		(1)  the state hospital or state school created the 
record;                 
		(2)  an inquiry authorized by the legislature requests 
the information;  and
		(3)  the entity receiving the record agrees not to 
disclose a patient's identity.

Added by Acts 2001, 77th Leg., ch. 1420, § 14.086(b), eff. Sept. 
1, 2001.


	§ 258.108. LIMIT ON DISCLOSURE.  A person who receives 
privileged information may disclose the information to another 
person only to the extent consistent with the purpose for which the 
information was obtained.

Added by Acts 2001, 77th Leg., ch. 1420, § 14.086(b), eff. Sept. 
1, 2001.


	§ 258.109. REQUEST FOR DENTAL RECORD:  TIMING;  
EXCEPTION.  (a) If disclosure of a dental record is authorized 
under this subchapter, a dentist shall disclose the dental record 
within a reasonable period after it is requested but not later than:
		(1)  the 30th day after the date on which it is 
requested from the dentist;  or
		(2)  a date ordered by a court.                                               
	(b)  A dentist may 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, except that requests from the board may not be refused.  If 
the dentist determines that disclosing the record would be harmful, 
the dentist shall notify the person requesting the record and 
explain why the information would be harmful.  The person 
requesting the record may challenge in court the dentist's refusal 
to disclose the record.  If the court finds that the dentist made 
the refusal in bad faith, the court may order the disclosure of the 
record and award costs and attorney's fees incurred by the person to 
obtain the information.
	(c)  In disclosing a dental record under this section, a 
dentist shall redact privileged information about another person.
	(d)  A dentist may charge a reasonable fee for providing a 
dental record under this section.  For purposes of this subsection, 
a fee established under Section 241.154, Health and Safety Code, is 
a reasonable fee.

Added by Acts 2001, 77th Leg., ch. 1420, § 14.086(b), eff. Sept. 
1, 2001.

SUBCHAPTER D. ENTERAL ADMINISTRATION OF ANESTHESIA


	§ 258.151. DEFINITION.  In this subchapter, "enteral" 
means any technique of administering anesthesia in which the 
anesthetic is absorbed through the gastrointestinal tract or oral 
mucosa.  Examples of enterally administering anesthesia include 
administering an anesthetic orally, rectally, sublingually, or 
intranasally.

Added by Acts 2001, 77th Leg., ch. 349, § 1, eff. Sept. 1, 2001.           


	§ 258.152. APPLICABILITY.  Rules adopted by the board 
under this subchapter do not apply to:
		(1)  the regional injection of an anesthetic to reduce 
or eliminate sensation, especially pain, in one part of the body;  
or
		(2)  the administration of anxiolytics and analgesics 
that are not being used in conjunction with the administration of 
nitrous oxide and that are administered in doses that do not have 
the probability of placing the dental patient at risk for loss of 
the dental patient's life-preserving protective reflexes.

Added by Acts 2001, 77th Leg., ch. 349, § 1, eff. Sept. 1, 2001.           


	§ 258.153. RULES.  (a) The board shall establish by rule 
the minimum standards for the enteral administration of anesthesia 
by a dentist.
	(b)  The rules must be designed to protect the health, 
safety, and welfare of the public and must include requirements 
relating to:
		(1)  the methods used to enterally administer an 
anesthetic and the anesthetic agents that may be used;
		(2)  dental patient evaluation, diagnosis, counseling, 
and preparation;     
		(3)  dental patient monitoring to be performed and 
equipment to be used during a procedure and during postprocedure 
monitoring;
		(4)  emergency procedures, drugs, and equipment, 
including education, training, and certification of personnel, as 
appropriate, and including protocols for transfers to a hospital;
		(5)  the documentation necessary to demonstrate 
compliance with this subchapter;  and
		(6)  the period in which protocols or procedures 
covered by rules of the board shall be reviewed, updated, or 
amended.

Added by Acts 2001, 77th Leg., ch. 349, § 1, eff. Sept. 1, 2001.           


	§ 258.154. COMPLIANCE WITH ANESTHESIA RULES.  (a) On and 
after August 31, 2002, a dentist who practices dentistry in this 
state and who enterally administers anesthesia or performs a 
procedure for which anesthesia is enterally administered shall 
comply with the rules adopted under this subchapter.
	(b)  The board may require a dentist to submit and comply 
with a corrective action plan to remedy or address any current or 
potential deficiencies with the dentist's enteral administration 
of anesthesia in accordance with this subtitle or rules of the 
board.

Added by Acts 2001, 77th Leg., ch. 349, § 1, eff. Sept. 1, 2001.           


	§ 258.155. ANNUAL PERMIT.  (a) Not later than September 
1, 2002, the board shall require each dentist who enterally 
administers anesthesia or performs a procedure for which anesthesia 
is enterally administered to annually obtain a permit from the 
board by completing a form prescribed by the board.  The board shall 
set and impose a fee for the permit in an amount designed to recover 
the costs of regulating a permit holder under this subchapter.
	(b)  The board shall coordinate the times at which a permit 
must be renewed with the times at which a dentist's license must be 
renewed under Chapter 257 so that the times of registration, 
payment, notice, and imposition of penalties for late payment are 
similar and provide a minimum of administrative burden to the board 
and to dentists.

Added by Acts 2001, 77th Leg., ch. 349, § 1, eff. Sept. 1, 2001.           


	§ 258.156. INSPECTIONS.  (a) The board may conduct 
inspections to enforce this subchapter, including inspections of an 
office site and of documents of a dentist's practice that relate to 
the enteral administration of anesthesia.  The board may contract 
with another state agency or qualified person to conduct these 
inspections.
	(b)  Unless it would jeopardize an ongoing investigation, 
the board shall provide at least five business days' notice before 
conducting an on-site inspection under this section.
	(c)  This section does not require the board to make an 
on-site inspection of a dentist's office.

Added by Acts 2001, 77th Leg., ch. 349, § 1, eff. Sept. 1, 2001.           


	§ 258.157. REQUESTS FOR INSPECTION AND ADVISORY 
OPINION.  (a) The board may consider a request by a dentist for an 
on-site inspection.  The board may, in its discretion and on payment 
of a fee in an amount established by the board, conduct the 
inspection and issue an advisory opinion.
	(b)  An advisory opinion issued by the board under this 
section is not binding on the board, and the board, except as 
provided by Subsection (c), may take any action under this subtitle 
in relation to the situation addressed by the advisory opinion that 
the board considers appropriate.
	(c)  A dentist who requests and relies on an advisory opinion 
of the board may use the opinion as mitigating evidence in an action 
or proceeding to impose an administrative or civil penalty under 
this subtitle.  The board or court, as appropriate, shall take proof 
of reliance on an advisory opinion into consideration and mitigate 
the imposition of administrative or civil penalties accordingly.

Added by Acts 2001, 77th Leg., ch. 349, § 1, eff. Sept. 1, 2001.