                              QBfficeof tiy !ZlttornepQkneral
                                             &date of Qexarr
DAN MORALES                                     June 341992
 ATTORN‘
      GENERAL
        EY




   Mr. c. Thomas Camp                        Opinion No. DM-136
   Executive Director
                                             Re: Whether rules recently enacted by the Texas
   Texas State Board
                                             State Board of Dental Bxaminers relating to HIV-
    of Dental Examiners
                                             and HBV-infected dental health care workers are
   327 Congress Avenue, Suite 500
                                             inconsistent with subchapter I of chapter 85 of the
   Austin Texas 787014037
                                             Health and Safety Code (RQ-266)
   Dear Mr. Camp:
           The State Board of Dental Examiners (hereinafter the “board”) recently adopted
   regulations which establish infection control procedures for the practice of dentistry,
   including use of sterilization and disinfection techniques and compliance in the
   treatment of patients with procedures recommended for dentistry by the Centers for
   Disease Control of the United States Public Health Service.. See Tex. State Bd. of
   Dental Bxaminers. 16 Tex. Reg. 6633-36 (1991), adopted17 Tex. Reg. 1092-94 (1992) (to
   be codified at title 22, section 109.220 et seq., of the Texas Administrative Code)
   (hereinafter “Board Rules”). Most of these provisions apply to all dental health care
   workers. See, e.g., id 55 109.222, 109.223(a), (b). You ask whether the board has the
   authority to enact several provisions which specifically pertain to dental health care
   workers who know that they are infected with the hepatitis B virus (hereinafter “I-IBV”)
   or the human immunodeficiency virus (hereinafter “HIV”). See id 89 109.223(c) - (f),
   109224. We understand that you are particularly concerned about section 109.223,
   subsections (c) and (d), and section 109.224, subsection (a).
           Section 109.223(c) requires an HIV- or HBV-infected dental health care worker
   to refrain from performing invasive procedures* until consulting with the expert review


            %IICrc,gdationsdefmc the terms ‘health care worker”and ‘iavasive-prowdare”as those terms arc
   dc!incd in section 85.X12of the Health and Safety Code. Board Rules 0 105921. “Health care.worker’
   means a pcrsoo who hunishcs health care servicesin dired patient care situations under a license, ccrtiticatc
   or registrationissued by this state or a person providingdire43patient care in the. course of a training or
   cducatitmal program.’ Health & Safety Code P 853X?(2). “‘Iavasi~proccdurc’ means: (A) a surgical




                                                    p.    701
Mr.C.ThomasCamp              - Page2                 (DM-136)




panel as to which procedures he or she may continue to perf0rm.l Section lO!Q23(d)
provides that the board will establish an expert review panel to review HBV- and HIV-
infected dental health care workers’“infectious disease status,” and to set conditions with
which such workers must comply. The expert review panel would release information to
the board secretary and executive director which would be used “only for the purposes of
monitoring the worker’s compliance with conditions set by the review panel.” Id
0 109223(d).’
        Section 109.224(a) requires all dental health care workers to notify the expert
review panel “within 24 hours, or the neat working day, of confirmed testing of positive
results for HIV or HBeAg seropositivity.” It also provides that “Mailure by the health
care worker to do so may result in disciplinary action, including license revocation or


(footmteamtiaucd)
entry into tissue+ caiti~    or organg or (B) repair of major traumatic iajurics ass&at&   with cataiu
qecifd   pmcedurea    Id. f tWO2(3).




                                                p.     702
IKr.C.ThomasCamp       - Page3                (DM-136)




suspension, as may be determined by the board.” You ask whether the board has the
authority to enact these regulations under either V.T.C.S. article 4551d(c) or subchapter
I of chapter 85 of the Health and Safety ,Code.
      Article 4551d(c) was enacted by the 726 Legislature. See H.B. 817, Acts 1991,
72d Leg.. ch. 768,s 4, at 2738. It provides as followsz
              The Board shah investigate the issue of infection control
         and may adopt and enforce rules not inconsistent with the laws
         of this state to control the spread of Infection in the practice of
         dentistry as necessary to protect the public health and safety.
Subchapter I of chapter 85 of the Health and Safety Code was also enacted by the 72d
Legislature as House Bill 7. H.B. 7, Acts 1991,72d Leg., 1st CS, ch. 15.0 5.05, at 317.
Section 85.204 of subchapter I requires health care workers who are infected with HIV
or HBV to refrain from performing “exposure-prone procedure[s]“s unless they have
sought counsel from an expert review panel and have been advised regarding under
what circumstances they may do so.6

      9%~ compktc text of dou    109224(a) is as follow




              (a) Exccpta6prcwiddbysubscdian@)aod(c),ahcplthcdrcworku
         *iSkIfUiCd&lIHN~WllokhfC.CtCdWithkpatitkBvinuUldiS
         HBCAgpitiVClMYUOtpftiUIeSpO6W-pWOCppoccdun.
             (b)(l) AhcaltbcarcworkcrwhokiafcctcdviithIilVawhokinf~
         kthhcpatitisBvi~~andisHBcuQpositiwmq’prxfomancq~~~-~




                                             p.    703
Mr. C Thomas Camp - Page 4                    (DM-136)




        An administrative agency may promulgate rules when it has the express statutory
authority to do so or when implied authority is necessary to accomplish the pmpose of a
statute. Gerst v. Oak Cl.$ Sax & Loan Ash, 432 S.W2d 702 (Tez. 1968). Article
455ld(c) confers upon the board the authority to adopt and enforce rules to control the

(footnote iontinucd)
            pwwdluconlyifthchwlthwfcworkcrhasaoughlcomlsdfrommcapcet
            rekvpfmdwdbwn~lmdcrwhat                 dr~ifmly,thcheakh
            cue wdcer mry lxmtiuw to pcrfonu the expwure-prow prowdlue.




                 (4) Health  paofcsioaal amciations aad health f&l&s should
               develop guiddiws for expert rcvicw pat& and identify exposure-pro+e
               procedury 8s &lked by this 6ubdmpter.
                ....




               (1) fquircthcrevocbadthclice~rcgistntioqorccti~oada
          kalthcarcworkerwhoisidcctedwithIUVorhep&sBviruq

              (2) prohibitahcalthcareworkcrwhohiafcctcdwithHIVarhcpatitisB
          vimsmdw&adhercz3touhwsalprcuuti~asddincdbythissitbchaptcr,
          from:




              (4) requirethctutbgdhulthcarewmkcm




                                             p.   704
Mr. C.ThomasCamp         - Page5               (DM-136)




spread of infection in the practice of dentistry. However, article 4551d(c) also eapressly
limits that authority by providing that the board’s rules may not be “inconsistent with the
laws of this state.” We believe that sections 109.223(c), (d) and 109.224(a) are
inconsistent with subchapter I of chapter 85 of the Health and Safety Code in the
following respects.
        First, the rules prohibit HIV- and HEN-infected dental health care workers from
performing any invasive procedures unless they have consulted with the expert review
panel. Id 0 109.223(c). Subchapter I of the Health and Safety Code, on the other hand,
in section 85204(f), expressly provides that an HIV-infected and HBeAg-positive health
care worker ‘krho performs invasive procedures not identified as exposure-prone shouki
not have his or herpmctice mbicted, providedthe infectedhealthcare worka adhem to
the standu& for infection con.uv~ provided in Section 85.203.” (Emphasis added.)
Section 85.206(2) reiterates that the health care workers provided for in section
85.204(f) are not prohibited by the subchapter from performing procedures not
identified as exposure-prone so long as they adhere to universal precautions as defined
by the subchapter. See trlro id Q85.202(4), set out in full in footnote 8 (de&ring the term
“universal precautions”); c$ id 8 85204(a) (prohibiting HIV-infected and HBeAg-
positive health care workers from performing exposure-prone procedures).
        In our opinion, section 109.223(c) of the board’s rules is inconsistent with the
applicable statutes in restricting the subject health care workers from performing urry
invasive procedures unless they have consulted with the eapert review panel. We think
it clear from the statutory language that the legislature has determined that HIV- and
I-IBV-infected dental health care workers who have tested positive should nevertheless
not be restricted in performing the non-exposure-prone treatments so long as they
adhere to the “universal precautions” and other safeguards prescribed by the statutory
provisi0ns.S



       %Vcnote that arti& 4SSld(a), V.T.C.S., similarlyEmitsthe board’srule-makingauthority.

        ‘%wticm85203 madam that all health cam workers shall adhere to ‘M             preen-
rquires trainingiustitutionsto provideiastnaioa the&n, and rquircs he&b care butih~tioasto establish
pmwdurw for monitoring ccmptiaaccwiththoseprccautioas.    Subswlion (b) oft& scctioam&s spc&t
pwvisiw fol procedures to be followed by heal& care workers cxhiiting cutain rymptomb ‘universal
preca~isdeSnediuwctiouSS~(4)tomeau

           pmwdara for disinfeaion and steMon      of reusable medicsl deices and
           tbcappropr&uscdinfcctioncontrol,in&lingbandwashiq,tbcuseof
           pmtc&ebrricrc,mdthcuscmddisposalofnccdlcsandothcr~




                                               p.   705
Mr.C.ThomasCamp        - Page6             (DM-136)




        Second the rules require all dental health care workers to not@ the eapert
review panel “within 24 hours, or the next working day, of confIrmed testing of positive
results for HIV or HBeAg seropositivlty. Board Rules 0 109224(a). Subchapter I,
however, requires only those HBeAg-positive and HIV-infected health care workers who
perform exposure-prone procedures to consult an expert review panel. Health & Safety
Code 0 85204. Indeed, as noted above, subchapter I expressly permits HIV- and I-IBV-
infected health care workers to continue to treat patients provided that they adhere to
universal precautions and do not perform exposure-prone procedures. It does not
require such health care workers to report to or consult with an expert review panel
        Third, the rules provide that the board will establish and designate an eapert
review panel. Board Rules 0 109223(d). Subchapter I of chapter 85 of the Health and
Safety Code, however, does not authorize statewide licensing agencies to establish
expert review panels. Indeed, section 85204(b)(4) of the Health and Safety Code
suggests that such expert review panels will be established by “[hlealth professional
associations and health facilities.” In subchapter I, licensing entities are mentioned only
in section 85.205, which provides that a health care worker who fails to comply with
subchapter I is “subject to disciplinary procedures by the appropriate licensing entity.
We believe that if the legislature had intended to give licensing agencies a greater role
in reviewing the conduct of HIV- and HBV-infected health care workers, it would have
explicitly provided for such a roleP
       Finally, the rules authorize the expert review panel to release information to the
board secretary and executive director “for the purposes of monitoring the worker’s
compliance with conditions set by the review panel.” Board Rules 0 109223(d).
Subchapter I of the Health and Safety Code specifically provides that “[a]ll proceedings
and communications of the expert review panel are confidential and release of
information relating to a health care worker’s HIV status shall comply with Chapter 81.”




                                          p.   706
Mr.C.ThomasCamp        - Page7             (DM-136)




Health dt Safety Code Q85.204(b)(3). Section 81.103(a) of chapter 81 of the Health and
Safety Code provides that acquired immune deficiency syndrome (AIDS) and HIV test
results are confidential, and that a person who “has knowledge of a test result may not
release or disclose the test result or allow the test result to become known” except under
certain circumstances. The exceptions to this general confidentiality stricture do not
include release of test results to statewide licensing agencies. See Health & Safety Code
9 81.103(b).‘s A person tested may voluntarily release his or her test result and may
authorixe the release or disclosure of the test result. Id 0 81.103(d). The authorization
must be in writing and signed by the person tested, and must state the person or class of
persons to whom the test results may be released or disclosed. Id.
        Section 81.101 defines “test result” broadly to include “any statement that
indicates that an identifiable individual has or has not been tested for AIDS or HlV
infection, antiies    to HIV, or infection with any other probable causative agent of
AIDS, including a statement or assertion that the individual is positive, negative, at risk,
or has or does not have a certain level of antigen or antibody.” Clearly, in informing the
board secretary and executive director about a dental health care worker’s HIV status
without the dental health care worker’s written authorization, the expert panel would
reveal confidential information in violation of section 81.103. C$ Attorney General
opinion DMdl(l991) (release of information on a death certificate that a person died
as the result of AIDS or HIV infection would implicate section 81.103 of the Health and
Safety Code). Thus, we conclude that the release of information by the expert review
panel to the board secretary or executive director relating to a dental health care
worker’s infectious HIV status would run afoul .of chapter 81 of the Health and Safety
Code, and is thus inconsistent with both that provision and section 85.204(b)(3) of the
Health and Safety Code.
       For the foregoing reasons, we conclude that the board’s roles relating to HIV-
and HBV-infected dental health care workers are inconsistent with subchapter I of
chapter 85 of the Health and Safety Code and therefore exceed the board’s authority
under article 4551d(c), V.T.C.S.




                                            p.   707
Mr. C Thomas Camp - Page 8                (DM-136)




                                   SUMMARY

              Rules recently enacted by the Texas State Board of Dental
         Examiners, 17 Tex. Reg. 1093-94 (1992) (to be codified at title
         22, sections 190.223,190.224 of the Texas Administrative Code),
         relating to HIV- and HBV-infected dental health carb workers,
         are inconsistent with subchapter I of chapter 85 of the Health
         and Safety Code and therefore exceed the board’s authority
         under article 4551d(c), V.T.C.S., to adopt and enforce rules to
         control the spread of infection. The board may promulgate rules
         to control the spread of disease in the practice of dentistry, but
         such rules cannot conflict with the statutory scheme currently in
         place to control the spread of infection.




                                                    DAN      MORALES
                                                    Attorney General of Texas
WILL PRYOR
First Assistant Attorney General

MARYKELLER
Deputy Assistant Attorney General

RENEAHICKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, opinion Committee

Repared by Mary R Grouter
Assistant Attorney General




                                         p.   708
