ADA Website Accessibility Compliance: How to Protect Your Practice

By Officite

The focus of “ADA compliant” websites has become a hot topic of discussion lately. You’ve likely heard of the issue by now, but perhaps you’re not entirely sure what it means for your practice. Is it really true that a few simple mistakes can land you in legal hot water? In this short guide, we’ll explain the basics of how the ADA pertains to websites so that you can take the appropriate steps to provide the best care to your patients, and to protect your practice from unnecessary litigation.

This is by no means a comprehensive guide, nor is it meant to provide legal advice. If you find yourself facing an ADA-related claim, you should consult an attorney. Nevertheless, by the time you’ve finished reading this, we hope to reduce some of the fear and misinformation swirling around the issue. First, let’s cover the basics.

What is the ADA?

The Americans with Disabilities Act (ADA, sometimes AwDA) is a federal law passed in 1990 that aims to protect the rights of disabled people to ensure they are not discriminated against due to their disability. This is the same law that requires real-world public locations (referred to by the ADA as “places of public accommodation”) to be accessible to disabled patrons by offering accommodations such as wheelchair ramps and handicapped parking. The law is well-intentioned, and largely effective at improving the lives of disabled people. Unfortunately, however, the law did not account for the growing dependence of the internet, and did not provide specific language to cover any differences or similarities between physical locations and a website.

What do the Recent ADA Lawsuits Claim?

Until recently, many of these lawsuits had been in relation to actual physical locations. But over the past year or so, some dentists have received letters from lawyers claiming that their websites do not comply with The Americans with Disabilities Act, and thus have not provided the necessary accommodations for their clients. These letters often threaten legal action unless the practice agrees to pay an amount of money to settle the dispute outside of court. In order to prevent a potentially long and costly legal battle, many of these dentists have agreed to the settlement.

What Does It Mean to Be “ADA Compliant”?

If you take only one thing away from this guide, it should be this: as of today, there is no legal definition for an “ADA compliant” website. The current ADA regulations, which are enforced by the Department of Justice (DOJ), do not specifically mention websites and their accessibility requirements. The DOJ has stated that official regulations for website accessibility will not be released until at least Spring 2018. Until that point, all we have to work with are suggested guidelines, not hard-and-fast requirements.

Although there is no specific language (as of the date of this publication) within The Americans with Disabilities Act regarding website requirements, there are arguments that can be made that the language of the law insinuates websites as a place of public accommodation. Because of this lack of specificity, different state courts have different views, which can range from:

  • Websites are not required to be accessible to people with disabilities.
  • Only websites that have a connection to an actual brick and mortar location must be accessible to people with disabilities.
  • All websites must be accessible to people with disabilities.

Immediate Steps to Take

If you are a current client of Officite, then your website meets the current suggested ADA accessibility guidelines. In addition, Officite will keep all of its clients’ websites updated to meet these guidelines without any action required by its clients.

If your website is not hosted by Officite, you should take a moment to familiarize yourself with the basics of website accessibility. The DOJ has suggested the WCAG 2.0’s ‘Level AA Success Criteria’ as the best accessibility standards to follow. Again, these are suggested guidelines; they are not currently laws. Nevertheless, this checklist is a good place to start. If you can check every box of the Level AA Success Criteria, you are in the best position to defend your website from any “non-compliant” complaints you may receive.

Next, it’s a good idea to run your current website through an automatic evaluation tool that will help to reveal some of the most common potential accessibility problems.

Further Complications

Even if you have checked your website against the suggested ADA website accessibility guidelines and run the automatic evaluation tool, if you or your office staff add or modify content on your website, regardless of whether it is written or visual, it is difficult to guarantee that these changes fall within the suggested ADA website accessibility guidelines. If you do make changes to your website, it is best to use a website hosting company that meets the suggested ADA website accessibility guidelines and have their customer service team make the changes for you.

Additional Information

For health care practices that do not currently host their websites with Officite, Officite provides a complimentary ADA accessibility review to help gauge where your website stands in relation to the currently suggested ADA accessibility guidelines. To get this free evaluation, please call 888-700-3971 between the hours of 8 a.m.–5 p.m. Central Time, M-F or visit www.OfficiteFreeADAReview.com to schedule an appointment.

As the leader in website hosting and web presence solutions for healthcare practices, it is Officite’s goal to help all health care practices prosper and remain equipped for success in the future. Please feel free to share this FAQ document in its entirety. You also may direct additional questions to Officite’s team of Web Presence Advisors who can be reached at 888-700-3971.

 

This article was originally posted on Officite’s blog on July 19, 2017.

Referral and Negligent Referral in a Dental Practice

By Kim Hathaway, RN, CPHRM, Patient Safety Risk Manager, The Doctors Company

Failure to diagnose and failure to refer are common issues seen in dental claims.

Dental practice claims alleging failure to refer, or failure or delay in diagnosis may arise from a general dentist’s lack of referral to a specialist. On occasion, patients have asserted their general dentist referred them to a specialist who provided substandard care and that the referral itself was negligent. Dentists referring care outside their background, experience or training must take care to avoid liability issues associated with referrals.

Case Study
During a routine prophylaxis visit, a middle-aged male reported a mass under his tongue, which his general dentist evaluated as an aphthous ulcer (benign and non-contagious). Several months later, another provider biopsied the mass and diagnosed Stage IV squamous cell carcinoma. Surgery and radiation treatment were undertaken, and plastic surgery was required. The patient alleged dental negligence and failure to refer to a specialist. The defendant dentist claimed that the patient had been told to follow up with his primary care physician (PCP) or an oral surgeon.

There was no documentation of a formal referral to a specialist or PCP, nor was there documentation of the dentist’s observations or referral recommendation. The adverse result in this case may have been avoided or the impact lessened if the dentist had documented his observation, evaluation and testing to demonstrate a low suspicion of cancer, or if there had been a documented referral with follow-up on the referral.

Clinical Comfort Level
When specialists are unavailable, or the necessary care takes a patient outside of his or her local community, the patient may ask you to provide the treatment. Treatment that is outside your training or experience may increase the risk of injury to the patient. The risk generally lessens if the treatment is undertaken by a specialist. In addition, the patient cannot waive your professional duty by consenting to a negligent act. If the patient is injured, you will be judged against the standard of care for that specialty.

Do not let the patient pressure you into a treatment plan beyond your comfort level. It is important that you know your own and your staff’s limitations. Explain that the referral is the best treatment plan for the patient. Discuss that choosing no treatment may result in an adverse outcome, disability or death. Spend more time helping the patient find the necessary specialist and clearly document your discussions with and counseling of the patient. If the patient refuses specialty care, carefully document an “informed refusal.” Consider terminating the patient from your practice if after thorough counselling the patient continues to refuse your recommendations.

The American Dental Association’s General Guidelines for Referring Dental Patients notes: “In some situations, a dentist could be held legally responsible for treatment performed by specialist or consulting dentists. Therefore, referring dentists should independently assess the qualifications of participating specialist or consulting dentists as it relates to specific patient needs.” Vicarious liability is a concern if you refer a patient to a specialist who lacks skill or judgment.

Patient safety is the primary focus when making a referral. Familiarize yourself with the specialists’ communication skills, clinical judgement and competence. Explore complaints or evidence of poor care provided by the specialist. Find another provider in the community if a pattern of poor care develops. Consult with colleagues before recommending a specialist who you do not know well. Solicit feedback from both the specialist and the patient.

Communication
Effective communication is critical to a successful referral. Explain to the patient why the referral is needed for a particular treatment or condition and that you will remain the general dentist. Let the patient know what to expect from the specialist and the treatment, and reassure the patient that you will remain in contact with everyone to ensure the best possible outcome. Schedule the appointment while the patient is still in your office. If the patient needs to reschedule or cancel, the patient may; however, your staff has facilitated the referral.

Proactively avoid miscommunication between the dentist and specialist by providing a formal written referral. Always document the details of phone referrals followed by a written referral after the call. Referral letters should include the following information:

  • patient demographics and identification
  • date of the referral and last date the referral may take place
  • evaluation and treatment completed to date
  • copies of diagnostics performed, including information about when it was collected
  • diagnosis and prognosis
  • desired evaluation or care the specialist is requested to complete
  • your plan for after-care following the specialist’s intervention
  • a request for a consultation report and ongoing status reports

Tracking
Tracking patient referrals and return visits is essential to efficient patient care. A centralized and uniform tracking process should be kept separate from the patient’s record. The tracking should cover the timeframe from the patient’s referral to the return visit to the general dentist. Have your staff make this return appointment at the time they make the specialist appointment to avoid missed attempts to follow up. The tracking system should provide a reminder or task to move the process along or documentation for why it has not progressed. If the referral is not completed in a timely manner, the process should include contacting the patient and specialist to facilitate care.

Documentation
Carefully document the referral process. In the event of a claim resulting from the referral and treatment, documentation is the best evidence. Documentation of the evaluation, treatment and discussions with the patient that lead to the referral is critical. Copies of written communications and evidence of verbal communication, including phone messages with both the patient and specialist, must be kept in the patient record. Refusal or nonadherence to care must be recorded, with evidence of efforts to overcome the refusal or nonadherence. Finally, if the patient fails to seek specialist care despite your efforts, carefully document the events that lead to a decision to withdraw from further treatment of the patient. This decision should be followed by a properly executed letter terminating the dentist-patient relationship.

 

Reprinted with permission. ©2017 The Doctors Company. For more patient safety articles and practice tips, visit www.thedoctors.com/patientsafety.

The guidelines suggested here are not rules, do not constitute legal advice, and do not ensure a successful outcome. The ultimate decision regarding the appropriateness of any treatment must be made by each health care provider in light of all circumstances prevailing in the individual situation and in accordance with the laws of the jurisdiction in which the care is rendered.

Latex Precautions in the Dental Setting

By Rosanne Cain, BSN, LHRM, Patient Safety/Risk Manager II, The Doctors Company


Recognizing latex allergies is an important patient safety precaution.

A 43-year-old registered nurse presented to his dentist for a regular teeth cleaning procedure. After several years of daily use of latex gloves and medical supplies, he developed a severe sensitivity to latex that ultimately resulted in anaphylactic reactions to most latex exposures.

Prior to his scheduled appointment, he contacted the dental office and informed the staff about his severe latex allergy. The dental staff made a note in his dental record and prepared the exam room with nitrile gloves. When he arrived, the dental hygienist recommended protective eyewear. The patient asked the hygienist if the foam cushioning around the eyepieces was latex-free. The hygienist could not confirm. The hygienist also failed to note that she placed small rubber bands, which also contain latex, around the handles of her dental instruments.

The hygienist began the procedure. The patient began to itch, which was quickly followed by wheezing. The procedure was stopped, and the patient immediately administered his medication. The patient’s action avoided a severe anaphylactic reaction.

Discussion
During the past 30 years, latex allergies have been recognized as a significant problem for both specific patient and provider populations. The incidence of latex allergy in the general population has been estimated to be between 1 and 6 percent. Some adolescents experience incidences as high as 73 percent (notably those individuals with spina bifida and related pathologies). Women account for approximately 70 percent of latex-related anaphylactic reactions (most commonly during ob/gyn procedures).1 Adults with spinal cord trauma, neurogenic bladder or documented history of unexplained intraoperative anaphylaxis also can be affected by frequent exposure to latex supplies. Health care workers maintain an incidence of allergic response that ranges from 8 to 17 percent.2 Other at-risk populations with repeated exposure to latex gloves include lifeguards, emergency responders, law enforcement professionals and cosmetologists.

In addition, glove powder has been shown to aerosolize latex proteins and increases the risks of a reaction in latex-sensitized patients or staff. The U.S. Food and Drug Administration recently announced a ban of the use of powdered gloves in surgery, powdered patient examination gloves and absorbable powder used on surgical gloves. The ban was issued after an investigation determined that the powdered products present an “unreasonable and substantial risk of illness or injury, and that the risk cannot be corrected or eliminated by labeling or a change in labeling.”3

Although most dentists are familiar with latex allergies, the infrequency of a severe reaction during a dental procedure can cause inadequate precautionary measures in a dental practice. Implement the following risk management strategies to reduce latex-related risks.

Risk Management Strategies

  1. Know your patient’s latex allergy status, and note it prominently in the patient’s medical records. Allergy status should be updated on each patient visit.
  2. Remove toys that contain latex from your practice’s common areas and play zones.
  3. Practice latex avoidance precautions. Create a patient area that is latex-free and educate staff about all dental-related products that are restricted from the room.
  4. Identify dental products that contain latex, including gingival stimulators, irrigation tips, dental dams, bulb syringes, cushioned eye protection goggles, tourniquets, rubber stoppers on medicine vials, adhesive tapes and bandages, water tubing, prophy cups, and rubber toothbrush heads and grips.
  5. Use latex-free carts, bandages, reservoir bags, airways, endotracheal tubes, laryngeal mask airways and ventilator bellows.
  6. Maintain a list of latex-free dental devices and office products and ensure that it is readily available for staff reference.
  7. Remember that touching any latex object can cause transmission of the allergen by hand to the patient.
  8. Ensure that your supplies include emergency medications with non-latex syringes and medicine stoppers.
  9. Perform practice drills with your staff so they are prepared for latex-related medical emergencies.

For a free brochure on latex allergy, contact the American College of Allergy, Asthma and Immunology (ACAAI) by calling toll-free 800.842.7777. Additional information is available on the ACAAI website at http://acaai.org/allergies/types/skin-allergies/latex-allergy.

 

References:
1. Allergic reactions during labour analgesia and caesarean section anaesthesia. Adriaensens, I., Vercauteren, M., Janssen, L., Leysen, J., Ebo, D. International Journal of Obstetric Anesthesia 2013 Jul; 22(3): 231-242.

2. American Latex Allergy Association, http://latexallergyresources.org/statistics

3. FDA Rule, Banned Devices; Powdered Surgeon’s Gloves, Powdered Patient Examination Gloves, and Absorbable Powder for Lubricating a Surgeon’s Glove, 81 FR 91722, December 19, 2016, https://www.federalregister.gov/documents/2016/12/19/2016-30382/banned-devices-powdered-surgeons-gloves-powdered-patient-examination-gloves-and-absorbable-powder

 

Reprinted with permission. ©2017 The Doctors Company. For more patient safety articles and practice tips, visit www.thedoctors.com/patientsafety.

The guidelines suggested here are not rules, do not constitute legal advice and do not ensure a successful outcome. The ultimate decision regarding the appropriateness of any treatment must be made by each health care provider in light of all circumstances prevailing in the individual situation and in accordance with the laws of the jurisdiction in which the care is rendered.

Withdrawing from the Dentist-Patient Relationship

By David O. Hester, FASHRM, CPHRM, Director, Department of Patient Safety and Risk Management at The Doctors Company


Using appropriate guidelines can prevent a malpractice claim.

The American Dental Association’s Code of Professional Conduct states:

Once a dentist has undertaken a course of treatment, the dentist should not discontinue that treatment without giving the patient adequate notice and the opportunity to obtain the services of another dentist. Care should be taken that the patient’s oral health is not jeopardized in the process.”

The health and well-being of a patient is always a primary concern. However, when it’s necessary to end the relationship, dentists should follow acceptable protocols to withdraw from the dentist-patient relationship. If appropriate protocols are followed, the dentist decreases the probability that a patient’s charge of abandonment will be successful.

Under some circumstances, dissolving the dentist-patient relationship is appropriate. These include, but are not limited to:

  • Treatment non-adherence. The patient does not or will not follow the treatment plan recommended by the dentist, unrelated to the patient’s ability or circumstances.
  • Follow-up non-adherence. The patient consistently cancels follow-up appointments or does not appear for scheduled appointments.
  • Verbal or physical abuse.
    • The patient or a family member uses inappropriate language with the dentist or office staff.
    • The patient exhibits violent behavior or makes threats of physical harm.
    • The patient exhibits extreme anger that jeopardizes the safety and well-being of office personnel and other patients.
  • Nonpayment. The patient has multiple unpaid bills and has declined to establish a payment plan with the dental practice.

In other circumstances, additional steps or a delay in withdrawing from the dentist-patient relationship may be necessary. These circumstances include, but are not limited to:

  • Acute treatment phase. Do not withdraw from the relationship when a patient is in an immediate postoperative state or acute treatment phase.
  • The current dentist is the only option for the patient’s general or specialized dental care. When the dentist is the only source of care within a reasonable driving distance, he or she may need to continue treating the patient for current or follow-up care.
  • Discrimination. The dentist-patient relationship cannot be terminated solely because a patient is diagnosed with AIDS/HIV, is disabled or for any reason in which a patient is in a protected class. Dentists must follow the requirements set forth in the Americans with Disabilities Act. Dental practices also must follow nondiscrimination rules as set forth by Department of Health and Human Services, including conspicuous placement of the required Americans with Disabilities Act poster in the dental office

When appropriate circumstances exist to withdraw from the relationship, dissolution should be completed formally. The dentist should notify the patient of his/her decision to withdraw from the relationship in writing. The written notice should be mailed to the patient by regular and certified mail, return receipt requested. Maintain copies of the letter, the original certified mail receipt and the original certified mail return receipt, regardless of whether the patient signs for the certified letter. Maintain all forms of written communication in the patient’s dental record.

The written notice should include these components:

  • Effective date. The effective date of the withdrawal should provide the patient with a reasonable time period to establish a relationship with another dentist. Thirty days from the date of the letter is usually adequate; however, allow for any state regulations addressing termination that may be required in your practice venue. The relationship can be ended immediately under these circumstances:
    • The patient has terminated the relationship.
    • The patient or family member has threatened the dentist or staff or has exhibited threatening behavior.
  • Interim care provisions. Offer interim care; however, true emergency situations should be referred to an emergency department.
  • Continued care provisions. Offer suggestions for obtaining continued care. These suggestions may include referral services such as dental societies and/or community services. Do not recommend another dentist by name.
  • Requests for copies of the dental record. The written notice should include an offer to provide a copy of the dental record to the patient’s new dentist. Include a HIPAA-compliant authorization form and notify the patient that you will provide a copy of the records when the form has been signed and returned to you.
  • Patient responsibility. Advise the patient that ongoing dental care is recommended and should be pursued.
  • Reason for termination. A specific reason for termination is not required. In some instances, it is acceptable to use the catchall phrase “inability to achieve or maintain rapport” or to state, “The therapeutic dentist-patient relationship no longer exists.”

Although there are situations in which it is acceptable to withdraw from the dentist-patient relationship, a dentist should exercise caution to recognize acceptable circumstances before any action is taken. The dentist should ensure that appropriate steps are followed to reinforce that a patient receives ongoing dental care. Also, if established protocol to withdraw from the dentist-patient relationship is followed, it could reduce the probability that a patient will pursue an abandonment claim.

Under all circumstances, it is recommended that dentists exercise caution and request assistance from a patient safety risk manager or the Department of Patient Safety and Risk Management to address specific dentist-patient relationship scenarios.

 

The guidelines suggested here are not rules, do not constitute legal advice, and do not ensure a successful outcome. The ultimate decision regarding the appropriateness of any treatment must be made by each health care provider in light of all circumstances prevailing in the individual situation and in accordance with the laws of the jurisdiction in which the care is rendered.

Reprinted with permission. ©2017 The Doctors Company. For more patient safety articles and practice tips, visit www.thedoctors.com/patientsafety.