EXECUTIVE SUMMARY
The federal government is reminding healthcare providers telehealth services must be equally available to protected classes. A proposed rule would extend protection under the Affordable Care Act.
- Healthcare providers must be prepared to make reasonable accommodations.
- Providers must inform patients in accessible ways about how to access telehealth services.
- Discrimination in telehealth could violate several federal civil rights laws.
The HHS Office for Civil Rights (OCR) and the Department of Justice (DOJ) are signaling they will take seriously any discrimination against protected classes in the delivery of telehealth services. Hospitals and health systems must make sure they are providing reasonable accommodations when needed.
In July, OCR and DOJ jointly issued Guidance on Nondiscrimination in Telehealth: Federal Protections to Ensure Accessibility to People with Disabilities and Limited English Proficient Persons. In addition, HHS proposed a new rule to amend its regulations for implementing Section 1557 of the Affordable Care Act. That section prohibits discrimination on the basis of race, color, national origin, sex, age, or disability in specified healthcare programs.
The guidance explains if healthcare providers do not ensure people with disabilities or limited English proficiency can access telehealth services, they could be guilty of unlawful discrimination under several federal civil rights laws, says Allison M. Cohen, JD, shareholder with Baker Donelson in Washington, DC. Failing to provide telehealth services to protected classes could violate Section 504 of the Rehabilitation Act of 1973, the Americans with Disabilities Act (ADA), Title VI of the Civil Rights Act of 1964, Section 1557 of the Affordable Care Act, and HHS regulations implementing Section 1557.
“The new guidance extends a lot of the ADA protections and other federal anti-discrimination provisions to telehealth and Part B services, which is where telehealth is covered under Medicare,” Cohen explains. “There’s now more scrutiny on how telehealth services are delivered and provided. They have to be provided to individuals in a compliant manner, which may mean reasonable accommodations and providing meaningful access to those with limited English proficiency.”
Compliance Not That Simple
Complying with the requirements can be more difficult than it appears at first glance, Cohen notes. For instance, simply providing access to interpreters might not be enough. The guidance from OCR and DOJ provides these examples of potentially discriminatory scenarios:
- “A person who is blind or has limited vision may find that the web-based platform their doctor uses for telehealth appointments does not support screen reader software.”
- “A person who is deaf and communicates with a sign language interpreter may find that the videoconferencing program their provider uses does not allow an interpreter to join the appointment from a separate location.”
- “A limited English proficient person may need instructions in a language other than English about how to set up a telehealth appointment.”
Healthcare providers should assess their technology platforms and workloads to ensure all appointments and services are accessible to all patients and protected classes. There is an individual right of action to sue, which puts providers at a significant liability risk if a patient alleges unequal access.
The guidance notes several ways healthcare providers can make telehealth services available to protected classes, including the availability of communication aids, sign language interpreters, and translators. They also point out providers must communicate in accessible ways about how to schedule services.
“That’s an important concept. It’s not just about the actual moment of the telehealth services with the provider and the patient,” Cohen explains. “It’s also about scheduling of telehealth services and basic access even to unscheduled appointments for telehealth. Whatever you provide to others has to be accessible to others in protected classes.”
Healthcare providers are familiar with providing nondiscriminatory access to healthcare, Cohen says, but the extension to telehealth services may mean there are some gaps to fill. The use of telehealth expanded greatly during the pandemic, so more people are aware of its availability. That means there is more opportunity for someone in a protected class to seek telehealth services and encounter barriers.
“Telehealth is new enough that there probably are folks who need to think through how they are going to adapt their platforms to provide accommodations,” Cohen says. “The guidance from DOJ and OCR reinforces that there are enforcement actions in place, and they are making clear that they take this seriously.”
SOURCE
- Allison M. Cohen, JD, Shareholder, Baker Donelson, Washington, DC. Phone: (202) 508-3429. Email: [email protected].
The HHS Office for Civil Rights and the Department of Justice are signaling they will take seriously any discrimination against protected classes in the delivery of telehealth services. Hospitals and health systems must make sure they are providing reasonable accommodations when needed.
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