Liability Waivers In ABA Therapy Clinics 

ABA (Applied Behavior Analysis) clinics have become increasingly common across the United States, especially as awareness and diagnoses of autism spectrum disorder (ASD) continue to rise. These clinics are now widely available in many communities, offering individualized therapy programs to support children’s behavioral, social, and developmental needs. Although practitioners do their best to keep clients safe, accidents may still occur for the same reasons that services are sought. One way that providers can protect themselves from legal claims is by using liability waivers.

Liability waivers are a common risk management tool used across many healthcare settings, including in ABA therapy clinics. The use of liability waivers in ABA settings raises a variety of legal questions for practitioners attempting to allocate risk. Whether starting an ABA practice or analyzing the legal risk of an existing business, this is what ABA practitioners should know about liability waivers and their enforceability. 

What Is a Liability Waiver?

A liability waiver is a legal document in which one party agrees not to hold another party responsible for certain types of harm or injury. In the context of ABA therapy, the waiver is typically signed by a parent or guardian and is intended to protect the clinic from legal claims resulting from accidents, injuries, or certain negative outcomes related to the treatment. These waivers often outline the scope of services, potential risks involved, and the responsibilities of both the provider and the client. By signing, families acknowledge that they understand these risks and agree not to pursue certain legal actions against the provider.

Why Might Liability Waivers Be Employed by ABA Clinics?

• Defining responsibility. Liability waivers can help clarify the boundaries of the clinic’s obligations, outlining what falls within and outside the scope of the clinic’s responsibility.
• Risk allocation. They shift certain legal responsibilities from the clinic to the parent or legal guardian, helping to define the scope of the clinic’s liability.
• Compliance with insurance requirements. Liability waivers may be required by malpractice and general liability insurance providers as part of a broader risk management strategy.
• Litigation defense. When well-drafted and legally sound, waivers can be used as part of a defense strategy in the event of a legal claim arising from injury or other adverse events during therapy.

Are Liability Waivers Enforceable?

Yes, liability waivers can be enforceable in Georgia. However, they must fulfill certain requirements. It is important to note that liability waivers cannot protect against gross negligence, recklessness, or intentional misconduct. A waiver may cover minor accidents or unintentional harm, but it will not shield a clinic from liability for conduct that crosses the line into serious wrongdoing.

To be legally enforceable, a liability waiver must meet several key requirements. First and foremost, it must be in writing. Verbal agreements are not sufficient for liability waivers; the terms must be clearly documented in a signed, written agreement. This ensures both parties have a tangible record of what was agreed upon.

The language used in the waiver must also be clear and unambiguous. It should plainly describe the risks involved and specify the rights that are being waived. Courts are unlikely to enforce waivers that contain vague or confusing language.

Additionally, the waiver must be signed voluntarily. The person signing, typically a parent or guardian in an ABA setting, must do so freely and without any coercion, intimidation, or misinformation.

Finally, waivers must not violate public policy. For example, attempting to use a waiver to excuse unsafe or inappropriate practices in a healthcare or childcare setting would likely be considered unenforceable. Courts will scrutinize such agreements to ensure they do not undermine legal protections intended to safeguard health, safety, and well-being, particularly when minors or vulnerable individuals are involved.

How Can ABA Practitioners Ensure That Liability Waivers Are Enforceable?

While enforceability is not 100% guaranteed, there are steps that ABA practitioners can take to make enforceability more likely.

1. Have Waivers Reviewed by Legal Counsel

Each state has its own laws and court precedents that govern how and when liability waivers are enforceable. It is critical that ABA therapy clinics have their waiver language reviewed by a licensed healthcare attorney familiar with state law. 

2. Use Plain Language

Liability waivers should be written in simple, clear language that any parent or guardian can understand. Avoid legal jargon or complex sentence structures that may obscure the intent of the document. The more understandable the waiver, the more likely it is that a court will view it as a valid and informed agreement. 

3. Provide an Opportunity to Ask Questions

To ensure that the waiver is truly signed voluntarily and understood, clinics should give families adequate time to review the document and ask questions before signing. Ideally, the waiver should be shared during the intake process, rather than at the first session or in a rushed setting. Offering the opportunity to review the waiver in advance, whether in person or digitally, supports informed decision-making and may strengthen the waiver’s enforceability in court. 

4. Revisit the Waiver Periodically

Risk exposure and treatment methods can evolve over time, especially in a clinical setting that works with children and individuals with complex behavioral needs. Clinics should review and update their liability waivers at least annually, or sooner if there are significant changes in service offerings, clinic policies, or applicable laws. Requiring parents or guardians to re-sign updated waivers ensures that consent remains current and reduces the risk of disputes arising from outdated or inaccurate agreements. 

Contact An Experienced ABA Attorney

For ABA clinics considering liability waivers, consulting an experienced health law attorney is a critical step. An attorney can draft waivers that clearly define the scope of protection, comply with state-specific requirements, and reflect the nature of risks associated with ABA therapy. A legal review of existing waivers also helps identify any unclear language or provisions that may undermine their enforceability. Contact our office today.