CHAPTER 258. PRACTICE BY DENTIST
OCCUPATIONS CODE
TITLE 3. HEALTH PROFESSIONS
SUBTITLE D. DENTISTRY
CHAPTER 258. PRACTICE BY DENTIST
SUBCHAPTER A. DELEGATION BY DENTIST
Sec. 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
Texas Board of Nursing, 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 Medical
Board.
Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.
Amended by:
Acts 2007, 80th Leg., R.S., Ch.
889, Sec. 37, eff. September 1, 2007.
Sec. 258.002. DELEGATION TO DENTAL ASSISTANT. (a) A licensed
dentist may delegate to a qualified and trained dental assistant
acting under the dentist's general or 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;
(2) the person to whom the dental act is delegated does not
represent to the public that the person is authorized to practice
dentistry; and
(3) the person to whom the dental act is delegated holds the
appropriate certificate, if a certificate is required to perform
the act.
(b) Repealed by Acts 2009, 81st Leg., R.S., Ch. 476, Sec. 8(1),
eff. September 1, 2009.
(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, Sec. 1, eff. Sept. 1, 1999.
Amended by Acts 2001, 77th Leg., ch. 1470, Sec. 4.01, eff. Sept.
1, 2001; Acts 2003, 78th Leg., ch. 1144, Sec. 1, eff. June 20,
2003.
Amended by:
Acts 2009, 81st Leg., R.S., Ch.
476, Sec. 1, eff. September 1, 2009.
Acts 2009, 81st Leg., R.S., Ch.
476, Sec. 8(1), eff. September 1, 2009.
Sec. 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, Sec. 1, eff. Sept. 1, 1999.
SUBCHAPTER B. GENERAL PRACTICE PROVISIONS
Sec. 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, Sec. 1, eff. Sept. 1, 1999.
Amended by Acts 2001, 77th Leg., ch. 1420, Sec. 14.086(a), eff.
Sept. 1, 2001.
Sec. 258.0511. ACCESS TO DENTAL RECORDS. (a) An owner,
shareholder, partner, or executive officer of a clinic or other
entity that provides dental services for the public shall
designate a license holder as the dental custodian of records to
provide records to the board or a dentist who has provided dental
treatment and to comply with other law regulating dental patient
records.
(b) On demand, the dental custodian of records shall give access
to the board and produce for the board all records or other
evidence related to the investigation or prosecution of an
alleged violation of this subtitle or another law regulating the
practice of dentistry in this state.
(c) The board shall adopt rules regarding the designation and
duties of a dental custodian of records.
(d) Section 264.101 applies to a violation of this section.
Added by Acts 2007, 80th Leg., R.S., Ch.
1119, Sec. 1, eff. September 1, 2007.
Sec. 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, Sec. 1, eff. Sept. 1, 1999.
Sec. 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, Sec. 1, eff. Sept. 1, 1999.
Sec. 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, Sec. 1, eff. Sept. 1, 1999.
Amended by:
Acts 2005, 79th Leg., Ch.
810, Sec. 5, eff. September 1, 2005.
SUBCHAPTER C. DENTAL PRIVILEGE
Sec. 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, Sec. 14.086(b), eff.
Sept. 1, 2001.
Sec. 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, Sec. 14.086(b), eff.
Sept. 1, 2001.
Sec. 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, Sec. 14.086(b), eff.
Sept. 1, 2001.
Sec. 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, Sec. 14.086(b), eff.
Sept. 1, 2001.
Sec. 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, Sec. 14.086(b), eff.
Sept. 1, 2001.
Sec. 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, Sec. 14.086(b), eff.
Sept. 1, 2001.
Sec. 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, Sec. 14.086(b), eff.
Sept. 1, 2001.
Sec. 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, Sec. 14.086(b), eff.
Sept. 1, 2001.
Sec. 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, Sec. 14.086(b), eff.
Sept. 1, 2001.
SUBCHAPTER D. ENTERAL ADMINISTRATION OF ANESTHESIA
Sec. 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, Sec. 1, eff. Sept. 1,
2001.
Sec. 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, Sec. 1, eff. Sept. 1,
2001.
Sec. 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, Sec. 1, eff. Sept. 1,
2001.
Sec. 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, Sec. 1, eff. Sept. 1,
2001.
Sec. 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, Sec. 1, eff. Sept. 1,
2001.
Sec. 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, Sec. 1, eff. Sept. 1,
2001.
Sec. 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, Sec. 1, eff. Sept. 1,
2001.