Guidance on Nondiscrimination in Telehealth Released by the Departments of Justice and Health and Human Services
By John H. Fisher II
August 15, 2022
On July 29, 2022, the U.S. Department of Justice (DOJ) and the Department of Health and Human Services (HHS) jointly released “Guidance on Nondiscrimination in Telehealth: Federal Protections to Ensure Accessibility to People with Disabilities and Limited English Proficient Persons” (Telehealth Guidance).
The complete Telehealth Guidance can be accessed on the HHS Website. The Telehealth Guidance reflects the joint commitment by these two departments to ensure that healthcare providers who use telehealth, including telehealth that is available 24/7, do so in a nondiscriminatory manner. Various federal laws exist mandating healthcare providers utilizing telehealth technologies to access care accessible to people with disabilities and to limited English proficient persons. The Telehealth Guidance merely underlines the commitment of the agencies to utilize enforcement mechanisms to ensure compliance with the law.
Laws mandating telehealth services be provided in a nondiscriminatory manner include:
- Section 504 of the Rehabilitation Act of 1973 (Section 504)
- Americans with Disabilities Act
- Title VI of the Civil Rights Act of 1964 (Title VI)
- Section 1557 of the Patient Protection and Affordable Care Act (Section 1557).
These laws establish general nondiscrimination requirements that apply across industry segments, including healthcare. Section 1557 specifically pertains to discrimination in federal health care programs and the regulations under Section 1557 specifically require participants in covered health care programs offer their services in a nondiscriminatory manner to individuals with disabilities and language deficiencies.
Particularly since the beginning of the COVID pandemic delivery of health care services by telehealth has become a common pathway. There are a number of legal issues impacting the delivery of healthcare using telehealth technologies. Compliance with various laws prohibiting discrimination in the delivery of these services is one easy-to-overlook area. Health care providers should examine the Telehealth Guidance to determine the nature of their obligation to assure delivery of health care services using telehealth technologies does not run afoul of the laws prohibiting discrimination.
The DOJ has expressed its intent to “vigorously” enforce these nondiscrimination laws against providers who do not take steps to assure they are accessible to patients with disabilities and/or language barriers. Assistant Attorney General Kristen Clarke of the Justice Department’s Civil Rights Division summarizes the importance of delivering telehealth in a non-discriminatory fashion in the DOJ announcement of the Telehealth Guidance saying:
“It is critical to ensure that telehealth care is accessible to all, including patients with disabilities, those with limited English proficiency and people of all races and national origins. Federal civil rights laws protect patients from discrimination regardless of whether they are receiving health care online or at the doctor’s office. The Department of Justice will vigorously enforce the ADA and other civil rights laws to ensure that health care providers offering telehealth services are doing so free from discrimination.” [Emphasis Added]
Telehealth is a form of communication forms, including communication between a patient and a health care provider via video, phone, or other electronic means. The agencies recognize that telehealth has many benefits, including making health care more available and convenient. At the same time, the Telehealth Guidance reflects their concern that certain populations may face discrimination or other barriers in accessing care provided via telehealth.
A few examples of potential discrimination and barriers to utilization the agencies have said may result in discrimination include:
- A person who is blind or has limited vision may find 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 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 to learn how to set up a telehealth appointment.
For more detail on how the antidiscrimination laws may impact your delivery of health care using telehealth technologies, review the Telehealth Guidance document in full and access the Ruder Ware Health Care blog for additional articles covering various aspects of telehealth including the application of these laws to telehealth programs and services.
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