HHS and DOJ Issue Joint Guidance on Nondiscriminatory Telehealth Practices

Alerts / August 3, 2022

To coincide with the 32nd anniversary of the Americans with Disabilities Act (ADA), the Department of Health and Human Services Office for Civil Rights (OCR) and the Department of Justice’s Civil Rights Division (CRT) jointly issued Guidance on Nondiscrimination in Telehealth: Federal Protections to Ensure Accessibility to People with Disabilities and Limited English Proficient Persons (Guidance) on July 29, 2022, as part of their continued commitment to ensuring that telehealth is accessible in a nondiscriminatory manner.

The Guidance provides that telehealth accessibility is guaranteed to people with disabilities and limited English proficient (LEP) persons under several laws, including the ADA and Section 1557 of the Patient Protection and Affordable Care Act, the latter of which provides that covered health programs or activities provided by covered entities through electronic or information technology must be accessible to individuals with disabilities unless doing so would result in undue financial and administrative burdens on or fundamentally alter the health program.

According to the Guidance, despite the advantages provided by telehealth, certain populations continue to face accessibility challenges related to telehealth, which could result in a barrier to receiving care. It cites the following as examples of challenges in accessing telehealth care:

  • “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 video conferencing 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.”
Reasonable Accommodations for Persons with Disabilities Required.

According to the Guidance, federal law provides that “no qualified individual with a disability shall, on the basis of disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a covered entity, or otherwise be subjected to discrimination by a covered entity.” As a result, for those healthcare providers that receive federal financial assistance and are deemed “covered entities” under the laws cited in the Guidance, the Guidance notes that such healthcare providers are required to provide reasonable accommodations when rendering telehealth services to persons with disabilities, which may necessitate, for example, changing their policies, practices or procedures to permit additional time for patients with disabilities to communicate if needed due to their disability. The Guidance also highlights the importance of ensuring that the telehealth platform itself and the provider’s policies allow a support person to be present with a disabled patient or to log in from a third location.

In addition, providers subject to the Guidance are also cautioned to effectively communicate with people with communication disabilities during the provision of care via telehealth at no charge to the patient if additional communication aids are necessary. By way of example, the Guidance sets forth the following scenarios in which aids and services may need to be provided:

  • Deaf and hard-of-hearing individuals: A provider who uses telehealth may need to provide a sign language interpreter qualified to interpret for deaf patients, and the telehealth platform should be configured to permit the interpreter to join the session, as the provider cannot require a patient to bring their own interpreter. Providers who use telehealth are also advised to ensure that their telehealth platform supports real-time captioning for hard-of-hearing patients.
  • People who are blind or have visual disabilities: Providers who use a web-based telehealth platform are instructed to ensure that their recommendations are screen-reader-compatible for blind patients. If telehealth videos are used during treatment, the provider should ensure the videos have audio descriptions for patients with visual disabilities.  
Discrimination Against LEP Persons Prohibited.

The Guidance reiterates that federal law protects LEP persons from discrimination in services, programs or activities receiving federal financial assistance and that LEP persons must be provided with meaningful access to care delivered via telehealth. Accordingly, providers who receive federal financial assistance and utilize telehealth must take reasonable steps to ensure meaningful access to such care for LEP persons. The Guidance acknowledges that a balance should be struck that allows meaningful access without causing an undue burden, particularly for smaller entities. In the event language services are required to provide meaningful access to telehealth, the Guidance notes that entities should clarify that the language services are free to the LEP person. The Guidance also provides the following, non-exhaustive list of language assistance services, which providers receiving federal financial assistance should take into consideration when evaluating their telehealth programs in light of the Guidance:

  • Non-English statements. In emails to patients or social media posts about the opportunity to schedule telehealth appointments, providers may incorporate a short non-English statement in a language LEP persons understand on how to obtain the information sent via email or posted to social media.
  • Selection of telehealth platform. When choosing a telehealth platform, providers are advised to take reasonable steps to ensure the selected platform supports telephone interpreters or video remote interpreters.
  • Remote appointments and language interpreters. Providers should have a qualified language interpreter available for LEP patients and should ensure that the telehealth platform allows the language interpreter to join a telehealth appointment.

In light of the Guidance, which also reminds providers subject to the Health Insurance Portability and Accountability Act (HIPAA) that OCR’s Notification of Enforcement Discretion for Telehealth Remote Communications remains in effect only for the duration of the public health emergency, healthcare entities and providers subject to the applicable federal civil rights laws referenced in the Guidance should take a close look at their telehealth platform and related policies and procedures to determine whether their telehealth services are accessible both to persons with disabilities and LEP persons. It is also advisable for healthcare providers subject to HIPAA to take this time to reevaluate their telehealth platform to ensure that it is secure and complies with HIPAA in anticipation of the likely conclusion of the COVID-19 public health emergency at the end of this year.

Authorship Credit: Vimala Devassy and Justin Chavez

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