Learn about laws that may affect your dental practice.
Knowing the laws that govern dental practice can help you avoid costly, time-consuming legal challenges. Below you will find key points from the ADA publication, A Dentist’s Guide to the Law: 246 Things Every Dentist Should Know.
About the GuideThis newly revised publication from the ADA Division of Legal Affairs is a practical resource to address the wide array of legal issues relevant to you, your team and your practice. A Dentist’s Guide to the Law: 246 Things Every Dentist Should Know, Fourth Edition, includes both new and longstanding questions and answers in a user-friendly format with additional related references and resources in each chapter.
The guide addresses key questions such as:
This fourth edition contains updated information on many legal topics, such as the various regulations relating to HIPAA, the Sunshine Act, the Payment Card Industry Data Security Standard (PCI DSS), and the federal Anti-Kickback Statute and Self-Referral (Stark) Law. It also includes new material on issues such as emergency preparedness, biometrics and ransomware. Sample contracts, checklists and other helpful supplementary materials are included in the appendices. Use this book to help you better understand the legal issues you may face, how to avoid certain legal problems and the kinds of questions you should ask your own attorney if a legal problem arises.
We’ve included relevant portions of the guide below. The full guide is available from the ADA Store.
The Age Discrimination in Employment Act (ADEA) prohibits organizations with 20 or more employees from discriminating against workers or job applicants who are 40 years of age or older. Some states also have age discrimination laws that may apply to employers with fewer employees or different age classifications.
The Americans with Disabilities ActThe Americans with Disabilities Act is a federal law that protects individuals with disabilities in places of public accommodation (such as a dental office), as well as certain employees with disabilities. State or local laws may also apply. In the dental office, the public accommodation provision of this federal law prohibits discrimination against members of the public, such as patients and their family members, who have “disabilities.” The employment provision of the Act prohibits employers with 15 or more employees from discriminating against “qualified people with disabilities.” States and local jurisdictions may enact disability discrimination laws that apply to employers with fewer than 15 employees. State and local laws may also give employees and members of the public more rights than the Act.
Public accommodations
As places of public accommodation, dental practices must take certain steps to provide accessibility to disabled individuals. For example, the dental office may need to provide ramps, elevators, and other specific structural changes to accommodate wheelchairs. For more information see U.S. Department of Justice, ADA Update: A Primer for Small Business.
Effective communication
The Americans with Disabilities Act also requires dental practices to communicate effectively with individuals with disabilities. For example, in certain circumstances, a dental practice may have to provide a sign language interpreter or other auxiliary aid or service to a member of the public who is deaf. For more information about effective communications under the Act, see the Department of Justice publication, Effective Communication.
Service animals
A dental practice may also be required under the AwDA to permit a disabled individual to be accompanied by a service animal. Only dogs and miniature horses can qualify as service animals under the Americans with Disabilities Act, although state or local law may permit other kinds of animals to qualify. For information about when a dog or miniature horse qualifies as a service animal under the Act, and the questions the Act permits a dental practice to ask an individual who wishes to be accompanied by a service animal, see the Department of Justice publication, Service Animals.
Mobility devices
A dental practice may be required by the Act to allow an individual to use a manual or power mobility device in the dental office. Mobility devices may include walkers, wheelchairs, electric scooters and devices such as Segways. A dental practice must allow a disabled individual who uses a power-driven mobility device to use the device in the dental office unless the device cannot be accommodated because of legitimate safety requirements. If legitimate safety requirements bar accommodation for a particular type of device, the dental practice must provide the service it offers in alternate ways, if possible. See the Department of Justice publication, Wheelchairs, Mobility Aids, and Other Power-Driven Mobility Devices.
Website accessibility
The U.S. Department of Justice (DOJ) has applied the Americans with Disabilities Act in situations where a public accommodation’s website is allegedly inaccessible to individuals with disabilities. The DOJ has not yet issued final standards or guidelines for website accessibility. However, in several cases, the DOJ has reached settlement agreements in which public accommodations have agreed to ensure that their websites conform to the World Wide Web Consortium (W3C) Web Content Accessibility Guidelines (WCAG) 2.0 level AA. Appendix 17: Sample Website Development Agreement includes a provision requiring the website designer to represent and warrant that all deliverables will conform to WCAG 2.0 Level AA. For more information about the W3C, visit the W3C website. WCAG 2.0 can be found here.
Direct threat
The Americans with Disabilities Act generally permits the exclusion of individuals who pose a “direct threat” to others. A direct threat is defined as “a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.” A direct threat of substantial harm must be established through objective and medically supportable methods, not based on generalizations or stereotypes.
Employment
Under the employment provision of the Act, an employee of a dental office with 15 or more employees cannot be disqualified from a position based on a disability (for example, using a wheelchair) as long as the employee can perform the job duties with or without reasonable accommodations. The Act may require the employer to provide time off, restructure the job, change work schedules, provide equipment, or make structural changes to the office so an employee with a known disability can perform the job, as long as making the accommodations would not impose an undue hardship on the employer’s business. Employers with fewer than 15 employees may have similar obligations under state or local law.
Definition of “disability”
An individual has a “disability” and is protected by the Americans with Disabilities Act (1) if he or she has a physical or mental impairment that substantially limits one or more major life activities, (2) if he or she has a record of such an impairment, or (3) is regarded as having such an impairment. A person is also protected against discrimination if he or she has a known association or relationship with an individual with a disability.
There are no per se disabilities under the Act; each case must be assessed on an individualized basis.
Employment discrimination
For purposes of employment discrimination, the U.S. Equal Employment Opportunity Commission (EEOC) has stated that certain impairments will consistently meet the definition of disability and refers to the proposed regulations in identifying the following examples (not an exhaustive list): “deafness, blindness, intellectual disability (formerly known as mental retardation), partially or completely missing limbs, mobility impairments requiring use of a wheelchair . . . autism, cancer, cerebral palsy, diabetes, epilepsy, HIV/AIDS, multiple sclerosis, muscular dystrophy, major depression, bipolar disorder, post-traumatic stress disorder, obsessive-compulsive disorder, and schizophrenia. Other impairments may be substantially limiting for some but not for others, including asthma, back and leg impairments, and learning disabilities.”
The term “impairment” covers physiological and mental or psychological conditions. A physiological impairment is a condition or disorder, an anatomical loss affecting any of the major body systems, or a cosmetic disfigurement. A psychological impairment includes emotional or mental illness, learning disabilities, and disorders such as intellectual disability.
The following are examples of abilities and activities that fall within the definition of major life activity: ”caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working.”
Major life activities also include the operation of “major bodily functions” such as “functions of the immune system, special sense organs and skin, normal cell growth, digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive functions. Although not specifically stated in the NPRM, the final regulations state that major bodily functions include the operation of an individual organ within a body system (e.g., the operation of the kidney, liver, or pancreas).”¹
The positive effects of “mitigating measures” (other than ordinary contact lenses or eyeglasses) must be ignored in determining whether an impairment substantially limits a major life activity. However, the negative effects of a mitigating measure can be considered in determining whether a person has a disability (for example, side effects of medication). Examples of such mitigating measures may include, for example, “medication, medical equipment and devices, prosthetic limbs, low vision devices (e.g., devices that magnify a visual image [but not ordinary eyeglasses or contact lenses]), hearing aids, mobility devices, oxygen therapy equipment, use of assistive technology, reasonable accommodations, and learned behavioral or adaptive neurological modifications…[as well as] psychotherapy, behavioral therapy, and physical therapy…”¹
The fact that a mitigating measure eliminates or reduces an impairment cannot be taken into account in determining whether an individual has a disability. However, the positive and negative effects of mitigating measures can be considered when assessing whether a person with a disability is entitled to reasonable accommodations or poses a direct threat.
An individual with an impairment that is episodic or in remission is considered disabled if the impairment would substantially limit a major life activity when active. Examples include epilepsy, hypertension, asthma, diabetes, major depressive disorder, bipolar disorder, and schizophrenia.
Disability does not include transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders; compulsive gambling, kleptomania, or pyromania; or psychoactive substance use disorders resulting from current illegal use of drugs (29 CFR§1630.3(d), available from the U.S. Government Publishing Office.
Where to find more information
For more information on the Americans with Disabilities Act, see the Department of Justice publication, Americans with Disabilities Act Questions and Answers. You may also consult the U.S. Equal Employment Opportunity Commission publication, Questions and Answers on the Final Rule Implementing the ADA Amendments Act of 2008.