HHS and DOJ Provide Guidance on Nondiscrimination in Telehealth

The Department of Health & Human Services (HHS) and the Civil Rights Division of the Department of Justice (DOJ) have jointly published guidance on how telehealth providers can comply with nondiscrimination laws. The Americans with Disabilities Act (ADA) and other federal laws require health care providers to make their services accessible to people with disabilities (such as vision, hearing or intellectual disabilities) and people with limited proficiency in English. The new guidance describes how these antidiscrimination laws apply to telehealth services.

The departments discuss the example of a physician who offers telehealth services to patients generally, but excludes patients with intellectual disabilities. The physician can’t make the blanket assumption that such patients will be unable to use the online platform required for telehealth. Office staff may need to discuss the patient’s needs in advance of the appointment and adjust customary procedures, such as allowing the disabled person to have a support person assist with the telehealth appointment.

Patients who have hearing or visual disabilities may also require accommodation. The guidance provides several examples:

• A physical therapy practice that provides remote training sessions to patients may need to make sure the telehealth platform allows a sign language interpreter to join the session
•  A mental health provider may need to ensure that the provider’s telehealth platform can support real-time captioning for patients who are hard of hearing
• A dietician who uses a web-based platform to provide written dietary recommendations may need to assure that the instructions are compatible with a blind patient’s screen reader
• A physician who provides remote consultations through a video platform may need to provide a consultation by phone for a visually disabled person who requests that option.

Health care providers that receive federal financial assistance, such as federally qualified health centers, are required to take reasonable steps to provide meaningful access to their services for patients who have limited proficiency in English (LEP). In the context of telehealth, this may require selecting a telehealth platform that can include a telephone or video remote interpreter as part of the patient’s telehealth appointment.

Ensuring access is not a new issue for health care providers, who have long experience with the need to assure that physical facilities and office procedures accommodate patients with disabilities. The new guidance makes clear that telehealth raises unique issues, and providers should devote careful attention to how they can best serve these populations with new technologies.

https://www.hhs.gov/sites/default/files/guidance-on-nondiscrimination-in-telehealth.pdf

For more information please contact Pat King.