Dental practices covered by Section 1557 of the Affordable Care Act (ACA) may be subject to liability if their patient-facing information and communication technology (ICT) is not accessible to individuals with disabilities. Examples of ICT include computers and peripheral equipment; information kiosks and transaction machines; telecommunications equipment; customer premises equipment; multifunction office machines; software; applications; websites; videos; and, electronic documents. For purposes of Section 1557, “information and communication technology” (ICT) means information technology and other equipment, systems, technologies, or processes, for which the principal function is the creation, manipulation, storage, display, receipt, or transmission of electronic data and information, as well as any associated content.
A covered dental practice may not be required to provide accessible ICT if doing so would result in undue financial and administrative burdens or a fundamental alteration in the nature of the health programs or activities.
If a dental practice is covered by HIPAA, an interpreter it provides who is not a staff member will likely be a business associate. The ADA sample interpreter and translator agreement contains representations and warranties concerning the above requirements, as well as business associate provisions.
If there would be undue financial and administrative burdens or a fundamental alteration, the dental practice must provide the information in a non-electronic format that would not result in such undue financial and administrative burdens or a fundamental alteration, but that would ensure, to the maximum extent possible, that individuals with disabilities receive the benefits or services of the health program or activity that are provided through information and communication technology.
Requirement to make reasonable modifications
Dental practices covered by Section 1557 must make reasonable modifications to their policies, practices, or procedures when such modifications are necessary to avoid discrimination on the basis of disability, unless the dental practice can demonstrate that making the modifications would fundamentally alter the nature of the health program or activity.
For the purposes of this section, the term “reasonable modifications” will be interpreted in a manner consistent with Title II of the Americans with Disabilities Act, at 28 CFR 35.130(b)(7).
Note that Title II normally applies to state and local governments, but Section 1557 incorporates the Title II “reasonable modification” interpretation and applies it to covered entities such as dental practices that receive federal financial assistance, such as reimbursement under Medicare Advantage, Medicaid or CHIP.