The Maryland attorney general yesterday told Gov. William Donald Schaefer that the state prison system's medical services contractor could require AIDS tests of some of its workers, based on the risk posed to patients.
In a 15-page opinion prepared at Mr. Schaefer's request, Attorney General J. Joseph Curran Jr. said that testing could be required if public health professionals determine that an employee who regularly performed certain "invasive" medical procedures posed a "significant risk" of transmitting the AIDS virus to patients.
Federal law prohibiting discrimination against disabled people, including people with the AIDS virus, "does not preclude special restrictions on . . . HIV-positive health-care providers, if the restrictions are justified on medical grounds," Mr. Curran wrote.
But the opinion clearly states that requiring a medical contractor to test health-care workers "who do not regularly engage in invasive procedures" is prohibited under the law. In addition, the state cannot require the contractor to restrict the activities of workers who are identified as being infected with the AIDS virus if they do not engage in the invasive procedures, the opinion states.
Paul E. Schurick, the governor's top aide on health matters, said yesterday that the administration would be studying the opinion to determine what course of action it would take on the AIDS testing issue.
The opinion clearly puts the hotly contested question of testing back in the laps of medical professionals, who must determine what procedures pose a significant risk and then whether universal precautions -- such as protective gloves and masks -- are insufficient to guard against transmission of the disease during those procedures.
Lee D. Hoshall, assistant general counsel of the Maryland Human Relations Commission, who was concerned initially over how the opinion would be worded, said yesterday, "It's right on target."
"It's exactly the analysis this agency has been using and the federal courts have been applying in questions of AIDS testing," Mr. Hoshall said.
While the opinion was narrowly drawn to address the governor's concerns over two prison dentists -- both contract employees -- who died from acquired immune deficiency syndrome, it could have wide-ranging implications, said Jack Schwartz, the attorney general's chief counsel for opinions and advice.
The opinion could be used, Mr. Schwartz said, to require state-employed health-care workers who perform invasive procedures to be tested for the AIDS virus. And, he said, it could go so far as to require testing, as part of the state's licensing process, of all health-care workers who perform invasive procedures -- a possibility administration officials have hinted at.
Those specific issues would require further study, he said.
Yet the opinion is not as open-ended as Mr. Schaefer apparently had wanted.
At a May 24 news conference on the prison dentists, Mr. Schaefer told reporters, "Any doctor or dentist who treats patients within state facilities should be certified as AIDS-free."
Asked last month how far he wanted to go with mandatory testing, the governor said, "I don't know how far I'll go. Anybody who touches patients, hands on, that's what makes me nervous."
Mr. Schurick said Mr. Schaefer would ask Health Department officials, as well as members of the new Governor's Council on HIV Prevention and Treatment, which has yet to be named, for their views on what the state's testing policy should be.
The first order of business is to "make a decision as to what language should be included in any future contracts for medical services," he said. Asked how far he thought the mandatory testing might go, he said, "At this point I don't know, but I would never rule anything out."
Earlier this month, the governor did away with his 22-member AIDS Advisory Council, which had consistently opposed any sort of mandatory testing of health-care workers. At the same time, Mr. Schaefer announced he was replacing the panel with his new council on the human immunodeficiency virus.