• Ensure Telehealth Access for All Patients, Say HHS, DOJ

    Guidance Cites Protections for Patients With Disabilities, Limited English Proficiency

    September 1, 2022, 4:16 p.m. News Staff —The rapid growth of telehealth as a crucial mode of care delivery during the COVID-19 pandemic has reinforced the need to ensure this technology is accessible to all patients, including people with disabilities and those who have limited English proficiency.

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    With that need firmly in mind, HHS’ Office for Civil Rights and the Civil Rights Division of the Department of Justice recently issued comprehensive guidance to educate physicians and other health care professionals about potential discriminatory practices involving provision of telehealth services and how to avoid running afoul of regulations related to these services.

    Guidance on Nondiscrimination in Telehealth: Federal Protections to Ensure Accessibility to People with Disabilities and Limited English Proficient Persons” recaps the extensive federal protections against discrimination that have been established for people with disabilities — specifically those who are deaf or hard of hearing and those who are blind or have visual impairments — as well as for individuals with limited English proficiency. The guidance also outlines examples of steps that health care professionals may or, in some cases, must take to help ensure these protections are observed when providing telehealth services.

    Story Highlights

    Breakdown of Federal Statutes

    The broad federal laws cited by the guidance as providing these protections, along with a brief synopsis of who and what they pertain to, are as follows:

    1. Section 504 of the Rehabilitation Act of 1973 forbids organizations and employers that receive federal financial assistance from excluding or denying individuals with disabilities an equal opportunity to receive program benefits and services.
    2. The Americans with Disabilities Act prohibits discrimination against individuals with disabilities in all segments of public life, including jobs, schools, transportation, and all public and private spaces that are open to the general public.
    3. Title VI of the Civil Rights Act of 1964 prohibits discrimination based on race, color or national origin in any program or activity that receives federal funds or other federal financial assistance.
    4. Most recently, Section 1557 of the Patient Protection and Affordable Care Act prohibits discrimination on the basis of race, color, national origin, age, disability or sex (including pregnancy, sexual orientation, gender identity and sex characteristics), in covered health programs or activities.

    Whereas most of these laws include no specific reference to telehealth, and instead are generally interpreted as providing broad, blanket coverage of various benefits and services, “Section 1557 regulations specifically provide 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 or fundamental alteration of the health program.”

    It should also be noted that the prohibitions laid out in these statutes aren’t limited to instances in which discrimination is blatantly intentional, but also to associated processes, criteria and methods of administration that appear to be neutrally applied but that have a discriminatory effect on affected individuals based on their status.

    Overview of Accommodation Requirements

    The guidance presents numerous examples of potentially discriminatory scenarios, such as a person with severely limited vision discovering that the web-based platform their doctor uses for telehealth visits does not support screen reader software or a patient with limited English proficiency who finds she is unable to set up a telehealth appointment because instructions for doing so are provided solely in English.

    To accommodate patients with disabilities and those with limited English proficiency, physicians and other health care professionals “must make reasonable changes to their policies, practices or procedures, which may include providing additional support to patients when needed before, during and after a virtual visit,” the guidance stipulates.

    In many cases, the remedy is relatively straightforward, such as scheduling extra time for a video visit with a person who has an intellectual disability to ensure the patient understands what the physician is asking and is able to respond fully without feeling rushed. Other accommodations may also be needed in some instances, such as allowing time before a remote visit actually begins so the patient can become familiar with the features of the telehealth platform and how they function. It may also be necessary to ensure the platform being used can permit a support person to be present for the visit, including by logging in from a third location.

    Finally, the guidance webpage includes a special message for physicians, other clinicians, facilities and agencies covered by HIPAA privacy, security and breach notification rules, stating that “HHS OCR supports covered health care providers’ use of nonpublic-facing audio and video communication technologies to provide telehealth during the COVID-19 public health emergency” and reminding them that “OCR will not impose penalties against covered health care providers for noncompliance with the HIPAA Privacy, Security, and Breach Notification Rules in connection with the good faith provision of telehealth during the COVID-19 public health emergency.”

    This guidance, which also features multiple links to additional resources, builds on work that HHS and DOJ have done to promote nondiscrimination and equitable access in health care, including launching a website for consumers and clinicians who offer telehealth services that specifically addresses health equity in telehealth; creating the Health Resources and Services Administration’s Office for the Advancement of Telehealth; developing and disseminating various pieces of OCR guidance, including direction regarding HIPAA and audio-only telehealth and FAQs on telehealth and HIPAA during the COVID-19 pandemic; and fielding related DOJ Civil Rights Division resources, including information about communicating effectively with individuals with disabilities.

    AAFP Advocacy on Telehealth

    The Academy has a long track record of advocating that the use of telehealth and telemedicine be expanded “as an appropriate and efficient means to enhance patient-physician collaborations, increase access to care, improve health outcomes by enabling timely care interventions and decrease costs.” Most recently, the AAFP has focused on ensuring that federal officials carefully examine how the emergency waivers, flexibilities, coverage policy changes and other actions related to telehealth that have been adopted during the pandemic have upended the delivery of health care when determining next steps after the COVID-19 public health emergency ends.

    “The AAFP strongly recommends HHS publish a comprehensive plan outlining all the existing flexibilities and policies that will change once the federal PHE declaration expires,” the Academy said in a June 17 letter to HHS Secretary Xavier Becerra. “HHS should offer the public at least 60 days to comment on this plan and should work with other Departments, such as Treasury and Labor, to outline how it will minimize disruptions and address gaps in health care coverage and access.”

    Among the letter’s specific asks:

    • Permanent telehealth policies must include coverage of and proper payment for audio-only telehealth services across programs.
    •  Permanent telehealth policies must enable federally qualified health centers and rural health centers to permanently provide telehealth services to the millions of low-income patients that rely on them for primary care.

    In addition, to prevent care fragmentation, the Academy warned against policies that may permit direct-to-consumer telehealth companies — which typically don’t have access to patients’ medical records and usually are not integrated with their medical home — free rein in providing telehealth services.

    “The AAFP recommends HHS ensure that all patients have timely, equitable access to telehealth services from their usual source of care,” said the letter. “We further recommend that permanent telehealth coverage and payment policies facilitate utilization of telehealth services provided by a patient’s usual source of care and refrain from directing or incentivizing patients to use direct-to-consumer telehealth services.”

    Academy Tools and Resources

    The AAFP offers a wealth of information, tools and resources on telehealth, most of which can be accessed on its “Using Telehealth to Care for Patients During the COVID-19 Pandemic” webpage. Link to the webcast “How and Why to Grow Telehealth In Your Practice,” download the free AAFP telehealth toolkit, learn about state telehealth and licensing waivers, and review FAQs about telehealth and COVID-19 that can assist you and your staff in billing and coding accurately for this service, and much more.