From the March 2015 issue of The Nugget.
Reprinted with permission from CDA.
The Americans with Disabilities Act (AwDA) became law in July 1990. The AwDA and related state and federal laws prohibit discrimination on the basis of disability in employment, government, public accommodations, education, commercial facilities, telecommunications, and transportation. The law also helps guarantee access to places of public accommodation for persons with disabilities. Dental offices are viewed as places of public accommodation. Therefore, compliance with these laws in dental practices can take several forms, including:
- Removal of barriers which may impair patient or employee access when it is “readily achievable.”
- Proper design of office spaces to accommodate the needs of employees and patients in the case of new offices and some remodeling projects.
- Communication being offered in forms which are readily understood by employees and patients. This may include the obligation to provide sign language interpreters at no cost to the patient.
- Application of patient management and financial policies that are not discriminatory.
- Responsible hiring practices which prohibit discrimination against those with physical or mental impairment coupled with reasonable accommodations for employees.
Who is considered disabled under the AwDA?
In general, the group includes those with a physical or mental impairment that substantially limits one or more of life’s major activities, those who have a record of such an impairment, and those who are regarded as being disabled. Some disabilities are obvious, others are not. In the time since the AwDA became law, the courts have deliberated on cases where the questions revolve on whether a particular “disability” is indeed a disability under the law. When dealing with someone who claims a disability, it is best to act in compliance with the law even if you are uncertain about the law’s applicability in the individual case.
Physical Accessibility Standards
California’s disability access guidelines were in place before the AwDA access regulations were adopted. Trying to comply with both sets of detailed standards has been difficult for many businesses. It is not unusual for a building to meet local building code standards while still leaving the building owner or operator vulnerable to disabled access lawsuits. California law allows private enforcement of accessibility regulations, that is, private parties may sue entities to force compliance with regulations, to recover costs of litigation and to have punitive damages assessed.
Detailed information on complying with both state and federal accessibility standards is now available for building and business owners. The Division of the State Architect has on its Web site a reference manual for compliance with physical accessibility standards, www.dgs.ca.gov/dsa/Programs/progAccess/accessmanual.aspx. Local building departments use these standards and have the authority to interpret and enforce state building codes to best fit community needs.
If you are planning construction or a remodel of your facility, take a close look at the most commonly used public areas – the parking lot, walkway, entrance, lobby, and bathrooms. Also consider including appropriate signage. If you have concerns about the accessibility of your office, experts recommend you hire a consultant who specializes in both state and federal disability access laws and regulations to inspect your office. Certified Access Specialists (CASps) are certified by the Division of the State Architect, and a list of them can be found here, www.dgs.ca.gov/dsa/Programs/programCert/casp.aspx. State law provides some protection from lawsuits for businesses that follow through on CASp recommendations to make their businesses accessible.
Also see “Best Defense Against Disability Lawsuits: Compliance,” available on cda.org/compass, www.cda.org/LinkClick.aspx?fileticket=k_rJO7ap3E0%3d&portalid=0.
Communicating with the Hearing-Impaired
You are required to communicate with a deaf or hearing-imparied patient so that the patient is able to understand what you are telling them. The options for communicating to a hearing-impaired patient include using:
- Printed or written instructions, questions, responses via paper and pen, computer, or other device
- Sign language
It is best to ask the patient what is his or her preferred method of communication. Not all hearing-impaired patients ask a dental practice to provide a sign language interpreter. Be prepared, however, to provide an interpreter if requested.
You may not charge the patient for the cost of providing the interpreter or for any other cost associated with ensuring you and your patient are able to communicate.
A list of organizations that provide sign language interpreters or referrals to interpreters can be found in the Directory section of cdacompass.com.
Employers are prohibited from discriminating against an employee or potential employee because of the individual’s disability. Decisions to hire, to terminate employment, or to discipline should not be influenced by disability status.
The U.S. Equal Employment Opportunity Commission answers questions about health care workers and the Americans with Disabilities Act on a Web site, www.eeoc.gov/facts/health_care_workers.html. Topics include disability accommodation, “direct threat to safety,” job requirements vs employee essential functions, and more.
Questions & Answers
How can staff determine whether a dog that a patient has brought is a legitimate service animal?
A service dog, or a service dog-in-training, should be on a leash and tagged as a guide dog, signal dog, or service dog by an identification tag issued by the county clerk, animal control department, or other authorized agency. The owner of a service dog is liable for any damage done by the dog to property or injury to individuals. Service animals are addressed in California law under Civil Code Section 54.1 through 54.7.
Is a service dog-in-training allowed the same access to a dental office as a certified service dog?
Yes, according to California Civil Code section 54.2 an individual who is licensed or otherwise authorized to train guide dogs, signal dogs, or service dogs has a right to be accompanied by a dog-in-training in public places without being required to pay an extra charge or security deposit. As with a service dog, a dog-in-training should be on a leash and tagged as a guide dog, signal dog, or service dog by an identification tag issued by the county clerk, animal control department, or other authorized agency. The individual shall be liable for any damage done to the premises or facilities by his or her dog. For more questions and answers on service dogs, see this U.S. Department of Justice Web site, www.ada.gov/qasrvc.htm.
A deaf patient insists I use a specific sign language interpreter. One of my staff knows sign language and I prefer to use my staff to interpret for this patient. Do I have to use the patient’s preferred interpreter?
The U.S Department of Justice address this situation in its Technical Assistance Manual, available here www.ada.gov/taman3.html:
Who decides what type of auxiliary aid should be provided?
Public accommodations (such as dental practices) should consult with individuals with disabilities wherever possible to determine what type of auxiliary aid is needed to ensure effective communication. In many cases, more than one type of auxiliary aid or service may make effective communication possible. While consultation is strongly encouraged, the ultimate decisions as to what measures to take to ensure effective communication rests in the hands of the public accommodation, provided that the method chosen results in effective communication.
Illustration: A patient who is deaf brings his own sign language interpreter for an office visit without prior consultation and bills the physician for the cost of the interpreter. The physician is not obligated to comply with the unilateral determination by the patient that an interpreter is necessary. The physician must be given an opportunity to consult with the patient and make an independent assessment of what type of auxiliary aid, if any, is necessary to ensure effective communication. If the patient believes that the physician’s decision will not lead to effective communication, then the patient may challenge that decision under Title III by initiating litigation or filing a complaint with the Department of Justice (see III-8.0000).
Complying with federal and state disability access laws can be complex. It is important to realize that local agencies also may impose additional requirements. This article and the resources listed below provide you with general information. For assistance in cases related to physical accessibility requirements, you should work with your local building department and your architect or building contractor. An attorney should be consulted in specific cases pertaining to disability discrimination.
On cda.org/compass, see “Best Defense Against Disability Lawsuits: Compliance”
For full text of referenced laws and additional information, visit:
U.S. Department of Justice ADA Homepage www.usdoj.gov/crt/ada/adahom1.htm
California Disability Access Information www.disabilityaccessinfo.ca.gov
California Department of Rehabilitation www.rehab.ca.gov