SECTION 101.11. Employment by Estate of Dentist or Person Acting for Mentally Incompetent Dentist

(a) Texas Occupations Code, Title 3, Subtitle D, does not prevent a person who is the administrator or executor of the estate of a dentist or a person who is legally authorized to act for a dentist adjudicated to be mentally incompetent from employing a licensed dentist to:

(1) carry on the deceased or mentally incompetent dentist's practice for a reasonable period, as determined by the Board; or

(2) conclude the affairs of the practice, including the sale of any assets.

(b) Texas Occupations Code, Title 3, Subtitle D, does not prevent a licensed dentist from working for a person described by subsection (a) of this section during the administration of the estate or the period of incompetency.

(c) For purposes of this section, "reasonable period" means a period of no more than twelve (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.

(d) This subsection 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.

(1) If a dentist to whom this subsection applies has entered into a records transfer agreement in compliance with the provisions of 22 TAC §108.8(e)(2) (relating to Records of the Dentist), the custodian of records under this subsection is the person designated as the transferee under that agreement.

(2) If a dentist to which this subsection applies has not entered into a records transfer agreement in compliance with 22 TAC §108.8(e)(2), the dentist may, upon initial licensure as a dentist, and at each renewal period, designate a custodian of records who shall act as temporary or permanent custodian for the dentist in the event of the dentist's death, incapacity or abandonment of the records. A custodian of records designated under this paragraph shall maintain the records in a manner consistent with 22 TAC §108.8 and is responsible for complying with 22 TAC §108.8(f) and (g).

(3) A custodian of records to which this subsection applies may be:

(A) employed by the administrator or estate of the dentist in the event of death or mental or physical incapacitation of the dentist; or

(B) designated as needed:

(i) during an unexplained disappearance of the dentist; or

(ii) in the event of the abandonment of the dentist's patients without reasonable cause.

(e) If a licensed dentist has designated a person under subsection (d) of this section who is not a licensed dentist as a custodian of records, that person may serve as the custodian for a reasonable period of time as defined in subsection (c) of this section, and must ensure safe transfer of the patient records to each patient or another licensed dentist as soon as reasonably practicable.

(f) Should a custodian of records designated under subsection (d) of this section be unable to serve as custodian of records, or if a dentist to whom subsection (d) applies has not entered into a records transfer agreement as provided by subsection (d)(1) and has failed to designate a custodian under subsection (d)(2) for the dentist's most recent license period, the Board shall review and attempt to appoint an available custodian of records in the immediate area of the dentist's practice who may serve as custodian. The Board shall prioritize the security of patient health information and access to dental records.

(g) A custodian of records designated or appointed under this rule shall not be held responsible for any violations of the Dental Practice Act or Board rules occurring before the custodian is in possession of the licensed dentist's patient records, or any violations attributable to the actions of the licensed dentist who previously held the patient records. Designation or appointment as a custodian of records under this rule does not create a dentist-patient relationship between the custodian and patients of the licensed dentist.

Source Note: The provisions of this §101.11 adopted to be effective September 3, 2014, 39 TexReg 6855; amended to be effective March 20, 2019, 44 TexReg 1438