Many dental practices are implementing new policies to help stop the spread of coronavirus. But what if a patient with a disability can’t comply with the new policies? Offering reasonable modifications to these policies can help manage legal risk under disabilities laws. Remember that while enforcement of certain laws has been modified due to the pandemic, disabilities laws are still in full force and effect.
When implementing new COVID-related policies and procedures, what are some steps a dental practice can take to help reduce the risk of a claim under disabilities laws?
Changes to a dental practice’s policies and procedures to help prevent virus transmission might present legal risk under disabilities laws such as the Americans with Disabilities Act and Section 1557 of the Affordable Care Act. These risks can be lowered by providing appropriate reasonable modifications and accommodations to individuals with disabilities who are unable to comply with the new policies and procedures. While enforcement of certain laws has been modified due to the pandemic, disabilities laws are still in full force and effect.
A dental practice can help reduce legal risk by:
- documenting policy changes to help prevent COVID-19, and the scientific basis for the policies, citing scientific authority such as the U.S. Centers for Disease Control;
- planning in advance to offer reasonable modifications and accommodations to individuals who are not able to comply with the policies due to a disability; and
- alerting patients of new policies, such as a requirement to wear masks, in advance of their appointments and instructing patients to notify the practice in advance if their disability requires accommodation.
Working with an attorney can help ensure policies and possible modifications comply with applicable federal, state and local disabilities laws.
If your dental practice has adopted a policy restricting non-patients from accompanying patients due to the Covid-19 risk, you may need to modify the policy when necessary to account for the needs of people with disabilities. The U.S. Department of Justice addresses this issue at https://beta.ada.gov/notices/2021/08/25/covid-qa/ (scroll down to “Can a hospital or medical facility exclude all ‘visitors’ even where, due to a patient’s disability, the patient needs help from a family member, companion, or aide in order to equally access care?”).
Consult the ADA’s resource Checklist: Planning Reasonable Modifications for Individuals with Disabilities (ADA member log-in required) for suggestions on how your practice might offer reasonable modifications to an individual with a disability who cannot comply with policy and procedure implemented to help prevent coronavirus transmission. That resource includes some questions that a dental practice may wish to consider when planning to accommodate individuals with disabilities during the pandemic, along with some possible modifications, and spaces for the dental practice to document other suggestions and action steps.