Can the Texas dental board limit HIV-positive dental workers more than state law does?

Plain-English summary

The Executive Director of the Texas State Board of Dental Examiners asked whether the board's newly adopted rules for HIV- and HBV-infected dental health care workers conflicted with subchapter I of chapter 85 of the Health and Safety Code. The board had adopted infection-control regulations for dentistry, most of which applied to all dental workers, but several provisions singled out workers who know they are infected with hepatitis B (HBV) or HIV. The director was concerned about three in particular: a rule barring infected workers from performing invasive procedures until consulting an expert review panel, a rule having the board set up that panel and receive compliance information, and a rule requiring all workers to report a confirmed positive test within 24 hours.

The Attorney General concluded the challenged rules exceeded the board's authority. The board's enabling statute, V.T.C.S. article 4551d(c), lets the board adopt and enforce infection-control rules for dentistry "as necessary to protect the public health and safety," but expressly only rules "not inconsistent with the laws of this state." An agency may make rules only with express or necessarily implied statutory authority. Gerst v. Oak Cliff Savings & Loan Ass'n, 432 S.W.2d 702 (Tex. 1968). The conflicting law here was subchapter I of chapter 85, which the Legislature enacted the same session. That subchapter draws a careful line: an HIV-infected, HBeAg-positive health care worker who performs invasive procedures that are not "exposure-prone" should not have his or her practice restricted, so long as the worker follows the universal precautions and infection-control standards the statute prescribes; only workers performing exposure-prone procedures must consult an expert review panel.

Measured against that scheme, the opinion found four inconsistencies. First, the board's rule barred infected workers from any invasive procedure without panel consultation, but the statute lets them keep doing non-exposure-prone procedures if they follow universal precautions. Second, the board's rule made all workers report a positive test, while the statute requires only those performing exposure-prone procedures to involve a panel and does not require infected workers who avoid such procedures to report at all. Third, the board's rule had the board itself establish the expert review panel, but the statute contemplates panels established by health professional associations and facilities and gives statewide licensing agencies only a disciplinary role, not a panel-creation role. Fourth, the board's rule let the panel release a worker's HIV status to the board secretary and executive director, which collided with the statute's confidentiality command and with chapter 81 of the Health and Safety Code, under which AIDS and HIV test results are confidential and may not be disclosed to statewide licensing agencies without the tested person's written authorization. For those reasons, the rules on HIV- and HBV-infected dental workers were inconsistent with subchapter I and exceeded the board's authority. The board may regulate to control the spread of disease in dentistry, but not in a way that conflicts with the statutory scheme.

Currency note

This opinion was issued in 1992. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The infection-control statutes and the dental board rules discussed here have been amended and renumbered since 1992, and medical guidance on bloodborne-pathogen transmission has changed substantially, so confirm current law and current public-health standards before relying on anything described here.

Background and statutory framework

The board adopted infection-control regulations for dentistry, including sterilization and disinfection techniques and compliance with procedures recommended for dentistry by the federal Centers for Disease Control. See 16 Tex. Reg. 6633-36 (1991), adopted 17 Tex. Reg. 1092-94 (1992) (to be codified at 22 Tex. Admin. Code § 109.220 et seq.). Most provisions applied to all dental health care workers. The challenged provisions, sections 109.223(c)-(f) and 109.224, applied specifically to workers who know they are infected with HBV or HIV. Section 109.223(c) required an infected worker to refrain from invasive procedures until consulting the expert review panel; section 109.223(d) had the board establish a panel to review infected workers' "infectious disease status," set conditions, and release information to the board secretary and executive director to monitor compliance; and section 109.224(a) required all workers to notify the panel within 24 hours of a confirmed positive HIV or HBeAg test, on pain of discipline.

An administrative agency may promulgate rules when it has express statutory authority or implied authority necessary to accomplish a statute's purpose. Gerst v. Oak Cliff Savings & Loan Ass'n, 432 S.W.2d 702 (Tex. 1968). Article 4551d(c), V.T.C.S. (enacted by H.B. 817, Acts 1991, 72d Leg., ch. 768, § 4), directs the board to investigate infection control and authorizes 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, enacted the same session as H.B. 7 (Acts 1991, 72d Leg., 1st C.S., ch. 15, § 5.05), addresses infected health care workers. Section 85.204 requires HIV- or HBV-infected workers to refrain from "exposure-prone procedures" unless they have sought counsel from an expert review panel about the circumstances under which they may perform them.

The opinion identified four inconsistencies. First, section 109.223(c) barred infected workers from any invasive procedure without panel consultation, but section 85.204(f) expressly provides that an HIV-infected, HBeAg-positive worker who performs invasive procedures not identified as exposure-prone "should not have his or her practice restricted, provided the infected health care worker adheres to the standards for infection control provided in Section 85.203," and section 85.206(2) reiterates that such workers are not prohibited from non-exposure-prone procedures so long as they follow universal precautions as defined in section 85.202(4); cf. section 85.204(a) (prohibiting exposure-prone procedures). The Legislature thus determined that infected workers who test positive should not be restricted from non-exposure-prone treatments if they adhere to universal precautions and the statute's other safeguards. The opinion noted article 4551d(a) similarly limits the board's rulemaking.

Second, section 109.224(a) required all workers to report a positive HIV or HBeAg test within 24 hours, but subchapter I requires only HBeAg-positive and HIV-infected workers who perform exposure-prone procedures to consult a panel, and expressly permits infected workers to keep treating patients if they follow universal precautions and avoid exposure-prone procedures, without reporting to or consulting a panel. Third, section 109.223(d) had the board establish and designate the expert review panel, but subchapter I does not authorize statewide licensing agencies to create panels; section 85.204(b)(4) suggests panels will be established by health professional associations and health facilities, and section 85.205 mentions licensing entities only as the bodies that impose discipline on workers who fail to comply. Had the Legislature intended licensing agencies to have a greater review role, it would have said so.

Fourth, section 109.223(d) authorized the panel to release information to the board secretary and executive director to monitor compliance, but section 85.204(b)(3) provides that all proceedings and communications of the expert review panel are confidential and that release of information relating to a worker's HIV status must comply with chapter 81. Section 81.103(a) makes AIDS and HIV test results confidential and bars a person with knowledge of a result from releasing it except in specified circumstances, which do not include release to statewide licensing agencies, see section 81.103(b); a tested person may authorize release only by a signed writing naming the recipients, section 81.103(d). Section 81.101 defines "test result" broadly. Disclosing a dental worker's HIV status to board officials without written authorization would reveal confidential information in violation of section 81.103. Cf. Attorney General Opinion DM-61 (1991) (release of death-certificate information that a person died of AIDS or HIV implicates section 81.103). The opinion concluded such disclosure would run afoul of chapter 81 and section 85.204(b)(3). For all these reasons, the board's rules on infected dental workers were inconsistent with subchapter I and exceeded the board's authority under article 4551d(c).

Common questions

Can the dental board stop an HIV-positive dentist from doing all procedures?
Under this opinion, no, not categorically. The Attorney General concluded the rule barring infected workers from all invasive procedures without panel consultation conflicted with the statute, which lets infected workers keep performing non-exposure-prone procedures if they follow universal precautions.

Did the board have power to make infection-control rules at all?
Yes, but limited. The opinion recognized that article 4551d(c) lets the board adopt and enforce infection-control rules for dentistry, but only rules "not inconsistent with the laws of this state." Rules that conflicted with chapter 85's scheme exceeded that authority.

Who is supposed to set up the expert review panel?
Not the board, under the opinion. The statute contemplates panels established by health professional associations and health facilities, and gives statewide licensing agencies only a role in disciplining workers who do not comply, so the board's rule creating its own panel went beyond the statute.

Could the panel tell the board a worker's HIV status?
No, the opinion concluded. Releasing a worker's HIV status to board officials without the worker's written authorization would violate the confidentiality rules in section 85.204(b)(3) and chapter 81 of the Health and Safety Code.

Citations

• V.T.C.S. art. 4551d(a), (c)
• Health & Safety Code § 85.202
• Health & Safety Code § 85.203
• Health & Safety Code § 85.204
• Health & Safety Code § 85.205
• Health & Safety Code § 85.206
• Health & Safety Code § 81.101
• Health & Safety Code § 81.103
• 22 Tex. Admin. Code § 109.220 et seq. (Board Rules §§ 109.223, 109.224)
• 16 Tex. Reg. 6633 (1991); 17 Tex. Reg. 1092 (1992)
• Gerst v. Oak Cliff Savings & Loan Ass'n, 432 S.W.2d 702 (Tex. 1968)
• Attorney General Opinion DM-61 (1991)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0136
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1992/dm0136.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, and several footnotes that quoted rule and statute text were heavily degraded in the scan. The linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

June 30, 1992

Mr. C. Thomas Camp
Executive Director
Texas State Board of Dental Examiners
327 Congress Avenue, Suite 500
Austin, Texas 78701-4037

Opinion No. DM-136

Re: Whether rules recently enacted by the Texas State Board of Dental Examiners relating to HIV- and HBV-infected dental health care workers are inconsistent with subchapter I of chapter 85 of the 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 Examiners, 16 Tex. Reg. 6633-36 (1991), adopted 17 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. §§ 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 "HBV") or the human immunodeficiency virus (hereinafter "HIV"). See id. §§ 109.223(c) - (f), 109.224. 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 panel as to which procedures he or she may continue to perform. Section 109.223(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. § 109.223(d).

Section 109.224(a) requires all dental health care workers to notify the expert review panel "within 24 hours, or the next working day, of confirmed testing of positive results for HIV or HBeAg seropositivity." It also provides that "[f]ailure by the health care worker to do so may result in disciplinary action, including license revocation or 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 72d Legislature. See H.B. 817, Acts 1991, 72d Leg., ch. 768, § 4, at 2738. It provides as follows:

  The Board shall 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 C.S., ch. 15, § 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]" unless they have sought counsel from an expert review panel and have been advised regarding under what circumstances they may do so.

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 purpose of a statute. Gerst v. Oak Cliff Savings & Loan Ass'n, 432 S.W.2d 702 (Tex. 1968). Article 4551d(c) confers upon the board the authority to adopt and enforce rules to control the spread of infection in the practice of dentistry. However, article 4551d(c) also expressly 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 HBV-infected dental health care workers from performing any invasive procedures unless they have consulted with the expert review panel. Id. § 109.223(c). Subchapter I of the Health and Safety Code, on the other hand, in section 85.204(f), expressly provides that an HIV-infected and HBeAg-positive health care worker "who performs invasive procedures not identified as exposure-prone should not have his or her practice restricted, provided the infected health care worker adheres to the standards for infection control 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 also id. § 85.202(4) (defining the term "universal precautions"); cf. id. § 85.204(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 any invasive procedures unless they have consulted with the expert review panel. We think it clear from the statutory language that the legislature has determined that HIV- and HBV-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 provisions.

[Footnote: We note that article 4551d(a), V.T.C.S., similarly limits the board's rule-making authority.]

[Footnote: Section 85.203 mandates that all health care workers shall adhere to universal precautions, requires training institutions to provide instruction therein, and requires health care institutions to establish procedures for monitoring compliance with those precautions. Subsection (b) of that section makes special provision for procedures to be followed by health care workers exhibiting certain symptoms. "Universal precautions" is defined in section 85.202(4) to mean procedures for disinfection and sterilization of reusable medical devices and the appropriate use of infection control, including hand washing, the use of protective barriers, and the use and disposal of needles and other instruments.]

Second, the rules require all dental health care workers to notify the expert review panel "within 24 hours, or the next working day, of confirmed testing of positive results for HIV or HBeAg seropositivity." Board Rules § 109.224(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 § 85.204. Indeed, as noted above, subchapter I expressly permits HIV- and HBV-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 expert review panel. Board Rules § 109.223(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 85.204(b)(4) of the Health and Safety Code suggests that such expert review panels will be established by "[h]ealth 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 role.

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 § 109.223(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." Health & Safety Code § 85.204(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 § 81.103(b). A person tested may voluntarily release his or her test result and may authorize the release or disclosure of the test result. Id. § 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 HIV infection, antibodies 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. Cf. Attorney General Opinion DM-61 (1991) (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 rules 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.

                               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 109.223, 109.224 of the Texas Administrative Code), 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., 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

MARY KELLER
Deputy Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Mary R. Crouter
Assistant Attorney General