May 29, 2018
Gary N. Herman, D.D.S.
Chair, Council on Ethics, Bylaws and Judicial Affairs
Dr. Joseph P. Crowley
The American Dental Association
211 East Chicago Avenue
Chicago, Illinois 60611
Dear Drs. Herman and Crowley:
This letter will serve as a response to the letter sent by Dr. Herman on behalf of the American Dental Association’s (ADA) Council on Ethics, Bylaws and Judicial Affairs (the Council) dated May 2, 2018, informing NCD that, in response to NCD’s recommendation that the ADA revise its Principles of Ethics and Code of Professional Responsibility (Code) regarding patient selection to better reflect the rights of people with disabilities, the ADA would instead revise its Advisory Opinion. The ADA’s letter also indicated that the Council welcomes any comments NCD has with respect to the action taken by the Council in revising the ADA’s Advisory Opinion regarding patient selection, and that the Council would be pleased to take such comments by NCD under consideration. Accordingly, NCD has reviewed the Council’s response to NCD’s initial recommendation and has determined that, while it is notable that the Council is making an effort to better reflect that rights of people with disabilities by revising its Advisory Opinion, we are asking that the ADA revise the Code itself and call for a vote by the ADA’s House of Delegates in October 2018 to follow NCD’s (revised) recommendation outlined below, made in consideration of the points raised by the Council in its letter to NCD of May 2nd. With respect to those points raised, NCD submits the following:
With the overwhelming number of studies, including those of both NCD and indeed the Journal of the American Dental Association,1 highlighting oral health disparities for people with disabilities, it’s imperative that an unequivocal pronouncement by the ADA of nondiscrimination of people with disabilities is included in its Code. The ADA’s reference regarding this point in its letter to NCD of “the explanatory language to the ethical principle of Justice” noted in the ADA Code is a reference to language that is ambiguous, merely prefatory, and thus an inefficient means of articulating the ADA’s nondiscrimination mandate. Just as the ADA delineates patients’ rights based on their respective sex, national origin, color, creed, or race despite its explanatory language to the ethical principle of justice, it should also delineate the rights of patients based on their disability.
The ADA’s letter to NCD further stated that “the Council views it as critical that the Principles of Ethics and the Code of Professional Conduct be clearly applicable to a wide variety of conduct, and not just to conduct that is specifically delineated” and that “In the past, when confronted with requests for amendments that focused on a particular subject or subset of patients, the Council has typically found that such issues are best addressed by Advisory Opinions, interpretations that apply the Code of Professional Conduct to specific fact situations, rather than by amendment of the Code.” It is noteworthy that the Council and the larger ADA has delineated some forms of discrimination in the Code while arguing that discrimination based on disability should be left to the Advisory Opinion. Just as the ADA does not leave patients’ rights based on their respective sex, national origin, color, creed, or race to an Advisory Opinion, it should also not leave the rights of patients based on their disability to an Advisory Opinion alone. While the ADA’s letter to NCD states that the ADA and its relevant subcommittee and Council believe that a revision to an Advisory Opinion is equally as effective as a revision to the Code itself, it is rather, as a matter of fact, the case that an advisory opinion, which certainly serves as guidance and persuasive authority with respect to Code requirements, certainly does not carry the same weight and effect as does the actual authority of the Code itself.
However, in reviewing the Council’s statement in its letter to NCD that “The Advisory Opinion provides the Council with a vehicle to explicate a particular subject in greater detail than is possible in either the Principles of Ethics or the Code of Professional Conduct sections of the ADA Code,” NCD believes that the recommended language used below better reflects the rights of people with disabilities within the actual ADA code, as it does for people on the basis of race, creed, color, sex, or national origin, while also reflecting the ADA’s point that any language necessary that might be more specific is more properly addressed in an Advisory Opinion.
NCD recommends that the ADA revise its Code at section 4.A. with respect to Patient Selection whereby it is established that:
“While dentists, in serving the public, may exercise reasonable discretion in selecting patients for their practices, dentists shall not refuse to accept patients into their practice or deny dental service to patients because of the patient’s race, creed, color, sex, national origin, or disability.” [Emphasis added.]
Accordingly, NCD further recommends that the ADA revise its corresponding Advisory Opinion within its Code at section 4.A.1., with respect to Patient Selection, whereby it is established that:
As is the case with all patients, when considering the treatment of patients with a physical, intellectual, or developmental disability or disabilities, including patients infected with Human Immunodeficiency Virus, Hepatitis B, Hepatitis C Virus or another bloodborne pathogen, or who are otherwise medically compromised, the individual dentist should determine if he or she has the need of another’s skills, knowledge, equipment or expertise, and if so, consultation or referral pursuant to Section 2.B. hereof is indicated. Decisions regarding the type of dental treatment provided, or referrals made or suggested, should be made on the same basis as they are made with other patients. The dentist should also determine, after consultation with the patient’s physician, if appropriate, if the patient’s health status would be significantly compromised by the provision of dental treatment.
Again, this recommendation better reflects the rights of people with disabilities within the actual ADA code, as it does for people on the basis of race, creed, color, sex, or national origin, while also reflecting the ADA’s point that any language necessary that might be more specific is more properly addressed in an Advisory Opinion.
Finally, regarding the Council’s reference in its letter to NCD concerning the forthcoming publication in the Journal of the American Dental Association of Dr. Rice’s article on the ethical treatment of patients with disabilities, NCD would like to commend the ADA in that effort to direct attention to this important issue. We look forward to reading Dr. Rice’s work.
Thank you for your time and consideration of this vital issue. Please contact Amged M. Soliman, NCD Attorney Advisor, at firstname.lastname@example.org
or 202-272-2116 as NCD looks forward to further discussion concerning its recommendation that the ADA’s House of Delegates take up a vote on the recommendations noted here during its October 2018 meeting.