7.3 Protected Classes: Accepting, Dismissing, and Accommodating Patients

The legal framework (K1141)

Remedies are significant. Civil Code § 52(a) makes a violator liable for actual damages, up to three times actual damages, but not less than $4,000 per offense, plus attorney's fees.

The ADA Code agrees. Section 4.A lets dentists use "reasonable discretion" in selecting patients but forbids refusing patients or denying service because of race, creed, color, gender, sexual orientation, gender identity, national origin, or disability. Advisory Opinion 4.A.1 says treatment and referral decisions for patients with disabilities or bloodborne pathogens must be made "on the same basis" as for other patients. The CDA Code (Section 1B) adds religion and ethnicity.

The narrow defenses

B&P § 125.6 recognizes three situations that are not discrimination:

1. Medical necessity. Considering a characteristic is allowed when it is medically necessary and used solely to decide the appropriate diagnosis or treatment. For example, a medical condition may change the choice of anesthetic.
2. Direct threat. A licensee need not treat someone who poses a significant risk to others' health or safety that cannot be eliminated by modifying policies or providing auxiliary aids.
3. Qualification. A licensee is never required to perform a procedure they are not qualified to perform. The answer is then a nondiscriminatory referral.

The HIV case every dentist should know

In Bragdon v. Abbott, 524 U.S. 624 (1998), a dentist refused to fill an HIV-positive patient's cavity in his office, offering to do it in a hospital at extra cost. The Supreme Court held that HIV infection, even without symptoms, is a disability under the ADA, and that a "direct threat" defense must rest on objective, scientific evidence, such as CDC guidance, not the provider's own fear. Standard precautions are designed to make routine dental care safe for every patient. Refusing or steering HIV-positive patients elsewhere is discrimination.

Accommodation duties (K1142)

Under ADA Title III, a dental office must provide auxiliary aids and services so a patient with a hearing, vision, or speech disability can communicate effectively:

• Qualified sign language interpreters, on site or through video remote interpreting, when the conversation is complex, such as informed consent for surgery or explaining a treatment plan.
• Written notes or exchanged text for simple communication, if they work for the patient.
• Large print, readers, or accessible electronic forms for patients with low vision.

Key rules:

• No surcharge. The office cannot bill the patient for the interpreter or other aid.
• Consult the patient about which aid works, and give their choice primary consideration.
• Do not require patients to bring their own interpreter. An accompanying adult may interpret only in an emergency or when the patient asks and the adult agrees. A minor child may interpret only in an emergency.
• The defenses of undue burden or fundamental alteration are measured against the whole practice's resources and are rarely met for an interpreter.

Offices receiving federal funds must also provide free language assistance for patients with limited English proficiency (Section 1557), and Unruh protects primary language. Other accommodations include admitting service animals to public areas, making reasonable changes to scheduling or policies, and assisting with transfers.

Accepting and ending relationships lawfully

• Accepting: apply the same criteria to every applicant, such as insurance participation, schedule capacity, and scope of services. A "not accepting new Medi-Cal patients" policy applied to everyone is lawful. Refusing a patient who uses a wheelchair or who speaks only Spanish is not.
• Ending: a dentist may dismiss a patient for legitimate, nondiscriminatory reasons such as repeated missed appointments, nonpayment, abusive conduct, or refusal to follow essential care. The dismissal must meet the abandonment rules: written notice, a reasonable chance to find another dentist, and protection of the patient's health (B&P § 1680(u); ADA Code 2.F). Dismissing a patient because of a protected characteristic, or in retaliation for giving evidence to the Board (B&P § 1680(q)), is unlawful.

Worked scenario

A Deaf patient needs a surgical extraction and asks for an ASL interpreter. The office manager suggests the patient's 12-year-old son interpret to save the $150 fee, or else the patient should go elsewhere.

• Using the child for surgical consent is inappropriate.
• Refusing care to avoid the cost violates ADA Title III and Unruh, and exposes the dentist to discipline under § 125.6.
• The office should book a qualified interpreter at its own expense.