by Richard D. Weber, J.D.
MDA Legal Counsel
Published in the June 1999 issue of the Journal
Question: Recently I was contacted by a deaf individual who requested to become my patient. Am I obligated under the law to treat this individual? Am I required to pay for the services of an interpreter to communicate with this patient?
Answer: My partner, Tom Williams, has worked with clients on the requirements of the Americans with Disabilities Act. He has provided the following answer for Journal readers this month.
The Americans with Disabilities Act of 1990 (AwDA) is a comprehensive federal statute intended to eliminate discrimination against persons with disabilities. The AwDA prohibits discrimination not only by employers but by places of public accommodation as well. Dental offices are public accommodations subject to the AwDA.
As a public accommodation, a dental office must ensure that no individual with a disability will be excluded or denied its services because of the disability or because of the absence of auxiliary aids or services necessary to effectively communicate with the individual. Therefore, a dentist is prohibited by the AwDA from refusing to treat a patient solely because of the individual's deafness or because the dentist refuses to provide an auxiliary aid or service. If the dentist is not taking any new patients, it is not a violation of the AwDA for the dentist to refuse a new deaf patient. A dentist is not affirmatively obligated to treat a patient simply because of the disability. However, refusal to treat a deaf patient on the basis of the disability is a violation of the AwDA.
Individuals with disabilities such as vision, hearing or speech impairments that substantially limit their ability to communicate are entitled under the AwDA to auxiliary aids or services, which must be provided by a public accommodation. In the case of a deaf patient, an effective auxiliary aid need not be confined to interpreter services. This requirement is a very flexible one. An appropriate auxiliary aid is any means or device which leads to effective communication under the circumstances. An interpreter may not be needed at all. The AwDA lists numerous examples of auxiliary aids, including note-takers, computer-aided transcription services, assistive listening devices, telephone handset amplifiers and written materials. Whether a particular auxiliary aid will lead to effective communication depends on individual circumstances. In a routine visit, exchanging written notes with the patient may be very effective. Use of a family member who can interpret through sign language may also be possible. In a more complex visit involving extensive treatment, the services of a professional interpreter could be required. In such an instance, the dentist is obligated by the AwDA to pay for such services.
There are two situations where a dentist would be excused from providing auxiliary aids or services. The first occurs when the provision of such services would create an undue burden. This involves a balancing test that analyzes factors such as the expense of the aid or service against the size of the dental practice and its resources. The requirement to provide auxiliary aids or services is also eliminated if the dentist can demonstrate that taking such steps would fundamentally alter the nature of the services being provided.
Providing an interpreter for every visit by a deaf patient might well prove to be an undue burden for a dental practice, thus excusing the public accommodation from providing this type of aid or service. However, in the majority of instances, effective communication can probably be achieved through means other than a professional interpreter service.