By Jeanine Lehman, Attorney at Law
On February 22, 2019, the Texas State Board of Dental Examiners adopted a rule on custodians of dental records, as part of the Board’s existing rule 101.11 concerning handling of the practice of a dentist who is deceased or mentally incompetent.
The rule provides for the designation or appointment of a person as custodian of a dentist’s billing or dental patient records if the dentist dies, becomes mentally or physically incapacitated, or abandons such records. If a dentist has already entered into a records transfer agreement in compliance with Board rule, the custodian of records is the person designated as the transferee under that agreement. Records transfer agreements are used in various contexts including in employment agreements, independent contractor agreements, dental practice sales agreements, and other agreements. Board rule 108.8 requires dentists to notify the Board within 15 days of entering into a records transfer agreement. If a dentist has not entered into a records transfer agreement in compliance with Board rule, the dentist may, upon initial licensure as a dentist, and in each renewal period, designate a custodian of records who will act as temporary or permanent custodian for the dentist in the event of the dentist’s death, incapacity, or abandonment of the records. The custodian of records will maintain the records pursuant to Board rule 108.8 and will be responsible for providing records to the Board and patients.
A custodian of dental records may be employed by the administrator or estate of the dentist or be designated as needed during an unexplained disappearance of the dentist or in the event of the abandonment of the dentist’s patients without reasonable cause.
If a licensed dentist has designated a person, who is not a licensed dentist, as the custodian of records, that person may serve as custodian for a reasonable period of time, which is defined as no more than 12 months from the date of the dentist’s death or the date the dentist is lawfully determined to be mentally incompetent, whichever is applicable, and must ensure safe transfer of the patient records to each patient or another licensed dentist as soon as reasonably practicable.
If the designated custodian is unable to serve, or if there is neither a records transfer agreement nor the appointment of a custodian for the dentist’s most recent license period, the Board will attempt to appoint an available custodian of records in the immediate area of the dentist’s practice who may serve as custodian.
Dentists need to check to see if they have entered into a records transfer agreement in compliance with Board rules. Then, dentists will need to review the options for how to answer the “custodian” questions for initial licensure and renewal of licensure. Very importantly, dentists will need to decide whom to designate as the custodian. For example, is it better to appoint the dentist’s executor or spouse as custodian to further the estate planning for the sale of the dentist’s practice after the dentist’s death? Alternatively, does the dentist want to appoint a trusted colleague who has the same electronic dental record system? Certainly, the dentist will want to discuss the designation with the custodian in advance. Then, there are expenses for serving as custodian, which may include the maintenance of electronic dental records, security protections, storage and retrieval costs, and compliance with applicable law. There are many considerations in the designation of the custodian, and obtaining legal advice is prudent. The rule should be reviewed and a plan for compliance implemented.
Jeanine Lehman is an Austin, Texas dental, health and business law attorney with a statewide practice – www.jeanine.com. She can be reached at 512-918-3435 or Jeanine@Jeanine.com. © Jeanine Lehman 2019. This article is not legal advice.