The use of telemedicine has exploded over the last few years. The COVID-19 pandemic spurred a shift from in-person services to services provided by telemedicine. As healthcare providers and patients experience the added convenience of telemedicine in some circumstances, some of the large-scale shifts to telemedicine will likely become permanent. However, with increased use comes increased scrutiny from regulators. The Department of Health and Human Services (HHS) Office of Civil Rights (OCR) and the Department of Justice (DOJ) recently released guidance regarding the provision of telehealth services to individuals with disabilities or with limited English proficiency.
Collectively, several federal laws generally prohibit discrimination on the basis of disability, race, color, and national origin, among other bases. Federal regulations also generally require covered health programs or activities provided by covered entities through electronic or information technology to be accessible to individuals with disabilities unless doing so would result in undue financial and administrative burdens or fundamental alteration of the health program. According to the joint guidance, “A health care provider’s failure to take appropriate action to ensure that care provided through telehealth is accessible can result in unlawful discrimination.”
HHS and DOJ’s guidance generally directs providers to make exceptions to their telemedicine policies or to make special accommodations to individuals with disabilities or limited English proficiency, such as allowing extra time for familiarization with the telemedicine platform or for communication with the provider, allowing caregivers or others to be present during a telemedicine visit, adding additional capabilities or support for functions like real-time captioning or screen reader software, and use of language assistance services. A provider’s obligation to accommodate disabilities over telemedicine is generally the same as when providing in-person services.
Healthcare providers should remember that, during the pandemic, HHS waived many of the other federal requirements surrounding telemedicine, such as waivers of some communications security measures under HIPAA and waivers that allowed telemedicine by simple telephone call where it might normally require two-way synchronous audio-video communications. Providers should be cognizant of how and when these waivers end, as well as how these waivers affect the accessibility of the telemedicine modalities the provider is using.
For over 35 years, Wachler & Associates has represented healthcare providers and suppliers nationwide in a variety of health law matters. If you or your healthcare entity has any questions pertaining to telemedicine or healthcare compliance, please contact an experienced healthcare attorney at 248-544-0888 or wapc@wachler.com.