Telehealth Discrimination Protection to Meet Requirements of New Federal Guidelines and Proposed Rule Implementing Section 1557 of the Affordable Care Act | Donelson Baker

As telehealth becomes more prevalent, the federal government has taken steps to protect against discrimination in telehealth and prevent accessibility issues that disproportionately affect people with disabilities and people with limited proficiency. of English (LEP).

  • On July 29, 2022, the Department of Health and Human Services’ Office of Civil Rights (HHS) and the Department of Justice’s Civil Rights Division (DOJ) jointly released guidance on non-discrimination in telehealth: Federal protections to ensure accessibility for people with disabilities and those with reduced mobility. People proficient in English (advice).
  • On August 4, 2022, the Department of Health and Human Services (HHS) proposed a new rule (the Proposed Rule) that would amend its regulations to implement Section 1557 of the Affordable Care Act, which prohibits discrimination based on race, color, national origin, sex, age, or disability in certain health care programs and activities.

The Guide derives its authority from various federal civil rights statutes and provides several examples of what providers can do to prevent unlawful discrimination in the provision of telehealth services. The proposed rule focuses on the accessibility required by Section 1557 of the Affordable Care Act, providing more information on the basis and scope of this authority, as well as the enforcement mechanisms that can be applied. against non-compliant providers. Notably, HHS is proposing to expand the definition of “federal financial assistance” to include Medicare Part B, extending the scope of Section 1557 protections to all health programs and activities administered by HHS. Consistent with this authority, CMS proposes to add a provision explicitly prohibiting Covered Entities from discriminating in their provision of telehealth services on any of the grounds protected by Section 1557 – race, color, national origin, age, disability, or sex. .

The guidance and the proposed rule underscore the increased emphasis on non-discrimination in telehealth. To avoid the application of federal civil rights laws, providers must take proactive steps to ensure that telehealth is accessible to all protected persons. More details on what this entails are included below.

Joint HHS and DOJ Guidance on Telehealth

The Guide explains that health care providers who fail to ensure people with disabilities and LEP people have access to care through telehealth services may be engaging in unlawful discrimination under several federal civil rights statutes. . These laws include Section 504 of the Rehabilitation Act of 1973, Americans with Disabilities Act, Title VI of the Civil Rights Act of 1964, Section 1557 of the Affordable Care Act, and HHS regulations. implementing section 1557.

Reasonable accommodations

To prevent unlawful discrimination, telehealth providers are required to provide reasonable accommodations under federal law. These accommodations could include the following changes to practices, policies and procedures to make telehealth care accessible to people with disabilities:

  • Provide extra time for appointments to patients with developmental disabilities to help these patients become familiar with the features of telehealth platforms and understand what is requested by the provider during the visit.
  • Use platforms that allow a support person to be present with the patient or to log in from another location.

Communication aids and services

The Guide also explains that federal law requires telehealth providers to offer patients free communication aids and services when needed to communicate effectively.. These communication supports and services vary according to patient needs and may include the following:

  • Provide a sign language interpreter and use a platform for the interpreter to join a deaf patient visit.
  • Use a platform capable of supporting effective real-time captioning for a hearing-impaired patient.
  • Provide patient recommendations on a compatible screen reader for a blind patient.
  • Provide videos with audio or paired descriptions, with telephone consultation for visually impaired patients.

Language support services

In order to prevent discrimination based on national origin and to provide LEP people with meaningful access to care, the Guide notes that language support services are often necessary and should be provided at no cost to the patient. Here are some examples of these services:

  • Provide a non-English statement explaining how to access information in emails or social media posts regarding scheduling telehealth appointments.
  • Use telehealth platforms that can support telephone/remote interpreters and allow them to participate in telehealth sessions.

Provisions of the Proposed Rule Implementing Section 1557 of the Affordable Care Act That Expands Its Coverage to Medicare Part B Funds and Telehealth

Section 1557 of the Affordable Care Act (ACA) applies to health programs and activities that receive federal financial assistance directly or indirectly from HHS or that are administered by HHS, and to any program or activity administered by an entity established under Title I of the Affordable Care Act. Law. This section does not apply to any employer with respect to its employment practices, including the provision of health benefits to employees.

Medicare Part B Application to Meet Federal Financial Assistance Definition

HHS’ longstanding position is that Medicare B funding does not constitute federal financial assistance for the purposes of coverage under federal civil rights laws enforced by HHS, including Title VI of the Civil Rights Act of 1964, Section 504 of the Rehabilitation Act of 1973, Title IX of the Education Amendments of 1972, Age Discrimination Act of 1975, and Section 1557 of the ACA. In the proposed rule, HHS reverses this position and proposes to include funds received under Medicare Part B within the definition of “federal financial assistance” by changing the definition of that term. The proposed definition and interpretation reflect HHS’s view that Medicare Part B payments constitute federal financial assistance and recipients subsidized by those payments.

In the past, Part B funds were excluded on the grounds that: 1) Part B funds were an “insurance or guarantee contract” that fell within the “federal financial assistance” exception of Title VI of the Civil Rights Act of 1964, and 2) no federal financial assistance is paid by HHS to a physician or other practitioner under Part B.

In the proposed rule, HHS explains that by enacting Section 1557, Congress made it clear that “insurance contracts” can constitute federal financial assistance. Additionally, at present, the majority of providers enrolled in Part B are participating providers who bill and are paid directly by Medicare for services provided to Part B beneficiaries. Part B funds are no longer applicable as they do not reflect the current operation of the program. In the proposed rule, HHS also notes its view that even nonparticipating providers under Medicare Part B are recipients of federal financial assistance because the services they provide to Part B recipients are funded by the program. HHS believes that participating and non-participating providers have a choice whether or not to certify compliance with civil rights laws as a condition of receiving federal funds.

Proposal to add a provision prohibiting discrimination in the provision of telehealth services

HHS notes that while there are benefits to people with disabilities from telehealth (e.g., lower cost of care, access to specialists, and lower exposure to communicable diseases), there are still barriers. access for this population.

To address this issue, HHS is proposing to add a provision explicitly prohibiting covered entities from discriminating in the delivery of its health programs and activities through telehealth services on any of the bases protected by the Section. 1557 – race, color, national origin, age, disability or sex. “Telehealth” is defined in the proposed rule as “the use of electronic information and telecommunications technology to support remote clinical health care, patient and health professional education, health public and health administration.

HHS provides that Section 1557 encompasses “communications regarding the availability of telehealth services, the process of scheduling telehealth appointments (including the process of accessing unscheduled on-demand telehealth calls), and the appointment you of telehealth itself”.

HHS specifically notes that the duty not to discriminate is to “ensure that these services are accessible to people with disabilities and provide meaningful access to programs for [Limited English Proficient (LEP)] This obligation also includes accessibility to platforms, the provision of effective communication to people with disabilities through appropriate communication aids and services, and language support services for LEP people.

HHS is seeking comment on this approach and whether Covered Entities and others would benefit from a specific provision addressing accessibility of telehealth services for persons with disabilities and LEP individuals, as well as what those provisions should include.

Implementing provisions

HHS is proposing to add a provision that the enforcement mechanism for Section 1557 is consistent with the mechanisms provided for in Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, section 504 of the Rehabilitation Act 1973 and the Age Discrimination Act. of 1975, and that individuals may sue to enforce their rights under Section 1557.


The guidelines and proposed rule hold telehealth providers accountable for ensuring that telehealth services are provided in a way that does not discriminate against people with disabilities or LEP people. Compliance will require further examination of telehealth platforms and workflows to ensure that appointments and services are accessible to all patients.

The deadline for comments on the proposed rule is October 3, 2022 at 11:59 p.m. ET. With a limited exception for provisions of the proposed rule that require changes to the design of health insurance or group health benefits, provisions that are finalized are proposed to take effect sixty days after the publication of the final rule in Federal Register.

Source link