It’s Time to Overhaul Your Online Patient-User Interface: DOJ Releases New Federal Guidelines on Telemedicine and Civil Rights Protections | Foley & Lardner LLP
As online digital health services continue to enjoy broader use and appeal, federal regulators are concerned that some online telemedicine patient-user interfaces are unsuitable for people with disabilities and limited proficiency in English. Such “product design” failures may violate federal civil rights laws and the Americans with Disabilities Act (ADA), according to new policy guidelines jointly released by the U.S. Department of Health and Human Services (HHS). ) and the Department of Justice (DOJ).
The document, Non-discrimination in telehealth, specifically addresses companies offering telemedicine services and directs those covered entities to immediately take specific steps to comply with various “accessibility obligations” under federal civil rights laws. The guidance aims to ensure accessibility for two user populations: 1) people with disabilities and 2) people with limited English proficiency (LEP).
Who is subject to these rules?
The guidelines refer to “covered entities” subject to these rules. According to the rules, “covered entities” are all health programs and activities receive federal financial assistance (in addition to programs and activities administered either by a federal executive agency or an entity created by Title I of the Affordable Care Act). Although the guidelines do not define what constitutes “receipt of federal financial assistance,” HHS has always maintained that providers who receive federal dollars only under traditional Medicare Part B were not covered entities. However, a recently proposed rule suggests that HHS will significantly expand the scope of covered entities, and soon. Telemedicine providers must be prepared to comply with these federal laws.
People with Disabilities
The guidelines explain that no person with a disability shall – because of their disability – be excluded from participation in or be denied the benefits of the services, programs or activities of a covered entity, or be discriminated against by the share of a covered entity. The requirements outlined in the guidelines are supported by several federal laws, including the Americans With Disabilities Act, Affordable Care Act Section 1557, and Rehabilitation Act Section 504.
Applying these federal civil rights protections to telemedicine services, the guidelines state that companies must make reasonable changes to their policies, practices, or procedures to provide “additional support to patients as needed before, during, and after a virtual visit”.
The DOJ and HHS have provided the following examples of “additional support” obligations:
- A dermatology practice that typically limits telehealth appointments to 30 minutes may need to schedule a longer appointment for a patient who needs more time to communicate due to their disability.
- A physician’s office that does not allow anyone other than the patient to attend telehealth appointments should make reasonable modifications to this policy to allow a person with a disability to bring a support person and/or member of family at the appointment if needed to meaningfully access the healthcare appointment.
- A mental health provider who uses telehealth to provide remote counseling to people may need to ensure that the telehealth platform they are using can support effective real-time captioning for a patient hard of hearing. Provider may not require patients to bring their own real-time captioner.
- A sports medicine practice that uses videos to show patients how to do physical therapy exercises may need to ensure that the videos contain audio descriptions for patients with visual impairments.
People with LEP
The second area of guidance is the protection of LEP persons under Title VI of the Civil Rights Act of 1964 (Title VI). Under Title VI, no person shall be discriminated against or excluded from participation in or be denied the benefits of federally assisted services, programs, or activities on the basis of race, color, or his national origin.
For telemedicine services, the guidelines state that the prohibition of discrimination based on national origin extends to LEP persons. Namely, telemedicine companies must take reasonable steps to ensure meaningful access to LEP individuals. Such “meaningful access” includes providing information about the availability of telehealth services, the telehealth appointment scheduling process, and the appointment itself. In many cases, says HHS, language support services are necessary to provide meaningful access and comply with federal law.
These language assistance services may include measures such as oral language assistance by a qualified interpreter; communication in the language with a bilingual employee; or written translation of documents by a qualified translator
The DOJ and HHS have provided the following examples of “meaningful access” obligations:
- In emails to patients or social media posts about the possibility of scheduling telehealth appointments, a federally assisted healthcare provider includes a short non-English statement that tells LEP people how to get , in a language they understand, the information contained in the e-mail or publication on social networks.
- An OBGYN that receives federal financial assistance and legally provides reproductive health services, using telehealth to provide remote appointments for patients, provides a trained language interpreter for an LEP patient. The provider ensures that their telehealth platform allows the interpreter to join the session. Due to confidentiality issues and potential conflicts of interest (as in domestic violence cases), providers should avoid relying on patients to bring their own interpreter.
What if making these changes is expensive?
Although not directly addressed in the guidance, the cost of implementing accessibility measures is usually the responsibility of the business itself. Federal ADA regulations prohibit charging patients additional fees for the cost of providing American Sign Language (ASL) interpreters or similar accommodations. In fact, a Covered Entity may be required to provide an ASL interpreter even if the cost of the interpreter exceeds the fees received for the telemedicine service itself. With respect to LEP interpreters, HHS has issued separate guidelines stating that it is not enough to use “poor quality video remote interpreting services” or to “rely on unprofessional personnel.” qualified” as translators.
However, companies are not required to offer any assistance or service that places an undue burden on the company or requires a fundamental change in the nature of the services offered by the company. It is an important counterbalance in the act. Yet the threshold of what constitutes an “undue burden” on a business or a “fundamental change” in the nature of the services is unclear and requires factual assessment under legal requirements.
Telemedicine companies subject to the guidelines must heed the government’s warning and look into the elements in contact with patients. The first step is simply to have the website and application platform (specifically the online patient user interface) reviewed by a qualified third party to determine if its design and functionality is sufficiently accessible to people with disabilities. , as well as LEP people. This time is also a prudent opportunity to review the user interface to confirm that it complies with state telemedicine practice standards, e-commerce rules, electronic signatures or click-through laws and privacy/security requirements. As these laws have undergone rapid and significant changes during the public health emergency, it is recommended that these assessments be conducted on a periodic/annual basis.
If a company feels that the expense of making these product design changes to ensure accessibility would be prohibitive, it should check with experienced advisors to determine whether the changes would constitute an “undue burden” or a “fundamental change”. “. Otherwise, the federal guidelines make it clear that refusing to make reasonable modifications may be a violation of federal civil rights laws.