Guidance on Nondiscrimination in Telehealth: Federal Protections to Ensure Accessibility to People with Disabilities and Limited English Proficient Persons

Telehealth is an increasingly important way of delivering health care.  Many health care providers and patients have turned to telehealth during the COVID-19 public health emergency to reduce community spread of the virus, and it is now a more accepted way to provide and receive health care services.  The U.S. Department of Health and Human Services (HHS) and the U.S. Department of Justice (DOJ) are committed to ensuring that health care providers who use telehealth, including telehealth that is available 24/7, do so in a nondiscriminatory manner.

With this guidance, the HHS Office for Civil Rights (OCR) and DOJ’s Civil Rights Division (CRT) explain how various federal laws require making telehealth accessible by people with disabilities and limited English proficient persons. These laws include  Section 504 of the Rehabilitation Act of 1973 (Section 504),1 the Americans with Disabilities Act (ADA),2 Title VI of the Civil Rights Act of 1964 (Title VI),3 and Section 1557 of the Patient Protection and Affordable Care Act (Section 1557),4 (collectively, “federal civil rights laws”).  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.5

This guidance builds on work that HHS and DOJ have previously done to promote nondiscrimination and access in health care.  For example, HHS has developed a website for consumers and providers of telehealth that promotes access to patients, including those who face barriers accessing technology.6   The website has a health equity section that includes practical tips about how to improve access to telehealth, including making materials accessible in different formats and multiple languages and using assistive devices.

In addition, the HHS Health Resources Services Administration7 has an Office for Telehealth Advancement dedicated to expanding access to telehealth and promoting health outcomes, including funding the Telehealth Resource Center and providing grants to promote the equitable use of telehealth.8  OCR has issued guidance on use of telehealth9 and audio telehealth10 in keeping with HIPAA requirements.  OCR has also issued extensive guidance on non-discriminatory access to health care based on disability, race, color, national origin, sex, and age11 including during the COVID-19 pandemic.12

CRT has created resources describing the need for health care providers, among others, to communicate effectively with people with disabilities.13   In light of the COVID-19 pandemic, CRT issued a statement reiterating the obligations of health care providers to ensure equal access for people with disabilities and avoid disability discrimination.14   In addition, CRT operates a Barrier-Free Health Care Initiative in conjunction with U.S. Attorneys’ offices across the nation, which targets enforcement efforts to promote nondiscrimination in health care.15

The Resources section at the end includes additional information about telehealth, civil rights protections, and helpful tools for providers to understand their obligations and for patients to understand their rights in this area. All entities subject to Section 504, the ADA, Title VI, and Section 1557 should review their telehealth systems, policies, and processes, to ensure accessibility of their telehealth programs for all persons with disabilities and limited English proficient persons.

Telehealth and Civil Rights Protections

Telehealth takes many forms, including communication between a health care provider and a patient using video, phone, or other electronic means.  In addition to being used for remote health care appointments, telehealth is used in various other ways, for example by allowing patients to send information to health care providers for review and analysis, and by providers to monitor a patient’s health remotely.

Although telehealth has many advantages, accessing care via telehealth may present challenges for certain populations.  Sometimes these challenges, if not addressed, may result in these populations facing barriers and issues accessing this care.  Some examples may include:

  • A person who is blind or has limited vision may find that 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 that the video conferencing program their provider uses does not allow an interpreter to join the appointment from a separate location.
  • A limited English proficient (LEP) person may need instructions in a language other than English about how to set up a telehealth appointment.16

A health care provider’s failure to take appropriate action to ensure that care provided through telehealth is accessible can result in unlawful discrimination.17 Below, this guidance outlines steps that providers may, and in some cases must, take to help ensure accessible services to all individuals.

The federal civil rights laws discussed in this guidance prohibit discrimination on the basis of disability, race, color, and national origin, among other bases.  The following discussion includes a non-exhaustive list of examples of how these nondiscrimination protections apply in the telehealth context. 

A.   Protections against Discrimination for People with Disabilities

Disability Nondiscrimination: Federal law provides a general rule that no qualified individual with a disability shall, on the basis of disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a covered entity, or otherwise be subjected to discrimination by a covered entity.18

For example:

  • A health care provider who offers telehealth services violates the law by adopting a blanket policy of refusing to schedule telehealth appointments for any patients with intellectual disabilities because the provider wrongly assumes that these patients would have a hard time understanding how to navigate the online platform used for telehealth appointments.  The provider must offer these patients an opportunity to participate in telehealth appointments equal to that given to others.19

Reasonable Modifications for People with Disabilities.  Health care providers 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, to avoid discriminating on the basis of disability.20  

Examples of reasonable modifications that may need to be provided:

  • A physician’s office may need to offer additional time in advance of an appointment, to give a patient with an intellectual disability a chance to become familiar with the features of the telehealth platform.  During the visit, the provider should speak directly to the patient about their care, taking additional time as needed to ensure that the person understands what is being asked.  The provider should also use a platform that allows a support person to be present with the patient or log in from a third location.
  • A dermatology practice that typically limits telehealth appointments to 30 minutes may need to schedule a longer appointment for a patient who needs additional time to communicate because of their disability.
  • A doctor’s office that does not allow anyone but the patient to attend telehealth appointments would have to make reasonable changes to that policy to allow a person with a disability to bring a support person and/or family member to the appointment where needed to meaningfully access the health care appointment.

Effective Communication with People with Disabilities.  Providers must communicate effectively with people who have communication disabilities (including certain disabilities affecting speech or motor function) when providing care in person or through telehealth.21   This requirement applies to all communications, including about provider availability, records access, scheduling, and during appointments.22  Health care providers must provide communication aids and services when needed and at no cost to the patient.23  

Because communication needs can differ depending on the individual and their situation, effective solutions will differ too. The aids or services that are effective for the individual and convey accurate information between provider and patient may depend on the nature, length, complexity, and context of the communications and providers working with the patient to best determine what works for the patient.24

Examples of when communication aids and services may need to be provided, include but are not limited to:

For people who are deaf or hard of hearing:

  • A physical therapy practice that uses telehealth to provide remote training sessions to patients may need to provide a sign language interpreter who is qualified to interpret physical therapy instructions and techniques, including using any necessary specialized vocabulary, for a patient who is deaf.25   When an interpreter is necessary, the provider will need to make sure that their telehealth platform allows the interpreter to join the session.26   The provider may not require patients to bring their own interpreter.27
  • A mental health provider who uses telehealth to provide remote counseling to individuals may need to ensure that the telehealth platform it uses can support effective real-time captioning for a patient who is hard of hearing.  The provider may not require patients to bring their own real-time captioner.28

For people who are blind or have visual disabilities:

  • A dietician who uses a web-based platform to send written dietary recommendations to their patients may need to make sure the recommendations are screen-reader compatible for a patient who is blind.
  • A sports medicine practice that uses videos to show patients how to do physical therapy exercises may need to make sure that the videos have audio descriptions for patients with visual disabilities. A urologist who provides remote consultations through a video platform may need to provide a consultation by phone for a patient who requests that option due to a visual disability.

B.   Protections Against Discrimination for Limited English Proficient Persons

Race, Color, and National Origin Nondiscrimination: Federal law provides that no person shall, on the basis of race, color, or national origin, be excluded from participation in or be denied the benefits of services, programs, or activities receiving federal financial assistance, or be subjected to discrimination under any program or activity receiving federal financial assistance.29  The national origin protections prohibit discrimination against LEP persons.30

Meaningful Access for LEP Persons.  Recipients of federal financial assistance must take reasonable steps to ensure meaningful access for LEP persons31 in all aspects of care, including telehealth services.  This can include, but is not limited to, providing meaningful access regarding information about the availability of telehealth services, the process for scheduling telehealth appointments, and the appointment itself.

In many instances, language assistance services are necessary to provide meaningful access. As noted in both HHS and DOJ LEP guidance, language assistance services can include, but are not limited to, oral language assistance, performed by a qualified, competent interpreter or in-language communication with a bilingual employee; and written translation of documents, performed by a qualified, competent translator.32   When language assistance services are necessary to provide meaningful access, a recipient of federal financial assistance should clarify that any language assistance service offered is free to the LEP person.33

Examples of language assistance services include, but are not limited to:

  • In emails to patients or social media postings about the opportunity to schedule telehealth appointments, a federally assisted health care provider includes a short non-English statement that explains to LEP persons how to obtain, in a language they understand, the information contained in the email or social media posting.
  • When selecting a telehealth platform, a federally assisted health care provider takes reasonable steps to ensure that the telehealth platform can support the inclusion of a telephone interpreter or video remote interpreter as part of the call in order to provide meaningful access to the appointment for LEP patients.
  • An OBGYN who receives federal financial assistance and legally provides reproductive health services, using telehealth to provide remote appointments to patients, provides a qualified language interpreter for an LEP patient.  The provider makes sure that their telehealth platform allows the interpreter to join the session.  Due to issues of confidentiality and potential conflicts of interest (such as in matters involving domestic violence) providers should avoid relying on patients to bring their own interpreter.34

 

Special Note for Health care Providers Covered by the HIPAA Privacy, Security and Breach Notification Rules

HHS OCR supports covered health care providers’ use of non-public facing audio and video communication technologies to provide telehealth during the COVID-19 public health emergency.  In March 2020, OCR issued a Notification of Enforcement Discretion for Telehealth Remote Communications providing that OCR will not impose penalties against covered health care providers for non-compliance 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 exercise of discretion applies to telehealth provided for any reason, regardless of whether the telehealth service is related to the diagnosis and treatment of health conditions related to COVID–19.  OCR identified examples of non-public facing communication products that could be used to provide telehealth, and some best practices to ensure the continued privacy and security of individuals’ protected health information.  OCR also issued guidance in the form of frequently asked questions to clarify how OCR is applying enforcement discretion to support the good faith provision of telehealth and guidance on using remote communication technologies for audio-only telehealth that also applies when the Notification of Enforcement Discretion is no longer in effect.

Filing a Complaint

  • If you believe that a telehealth provider has violated your or another person’s civil rights or health information privacy rights, you may file a complaint with HHS at: https://www.hhs.gov/ocr/complaints/index.html.
  • If you believe that a telehealth provider has violated your or another person’s civil rights, you may also file a complaint with the Department of Justice at: https://civilrights.justice.gov/report/.

Both OCR and CRT share civil rights jurisdiction in some instances and work collaboratively to ensure complaints are addressed by the appropriate office. 

Resources

Department of Health and Human Services

Department of Justice, Civil Rights Division

Disability Resources

Limited English Proficiency (LEP) Resources

TIPS on hiring the right telephonic interpretation vendor, https://www.lep.gov/sites/lep/files/media/document/2020-03/TIPS_Telephone_Vendor_Selection.pdf

  • 1.  Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794.
  • 2.  Americans with Disabilities Act, 42 U.S.C. §§ 12132, 12182.
  • 3.  Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d – 2000d-7.
  • 4.  Section 1557 of the Patient Protection and Affordable Care Act, 42 U.S.C. § 18116.  While this guidance focuses on discrimination in telehealth on the basis of disability, race, color, or national origin, HHS notes that Section 1557 also prohibits discrimination on the basis of sex and age, and that covered entities are also prohibited from discriminating in the provision of telehealth services on those bases. HHS interprets and enforces Section 1557’s prohibition on the basis of sex to include sexual orientation and gender identity.
  • 5.  45 C.F.R. §92.104(a)
  • 6.  U.S. Dep’t of Health and Hum. Servs., https://telehealth.hhs.gov/ (last visited Jun. 21, 2022); see also Health equity in telehealth, U.S. Dep’t of Health and Hum. Servs., https://telehealth.hhs.gov/providers/health-equity-in-telehealth (last visited Jun. 21, 2022).
  • 7.  The HHS Health Resources & Services Administration (HRSA) sponsored a two-day National Telehealth Conference on May 16-17, 2022, bringing together public and private senior leaders to discuss telehealth best practices and lessons learned during the COVID-19 pandemic. See Health Resources & Services Administration and Telehealth.HHS.gov, National Telehealth Conference Summary Report, https://www.hrsa.gov/sites/default/files/hrsa/rural-health/topics/chsd-national-telehealth-summary-report.pdf (last visited July 26, 2022). The HHS Health Resources Administration sponsored a two-day National Telehealth Conference on May 17 and 18, 2022, bringing together public and private senior leaders to discuss telehealth best practices and lessons learned during the COVID-19 pandemic.
  • 8.  Office for the Advancement of Telehealth, Health Res. & Servs. Admin., https://www.hrsa.gov/rural-health/telehealth (last visited Jun. 21, 2022).
  • 9.  U.S. Dep’t of Health and Hum. Servs., FAQs on Telehealth and HIPAA during the COVID-19 nationwide public health emergency (March 20, 2020), available at https://www.hhs.gov/sites/default/files/telehealth-faqs-508.pdf.
  • 10.  U.S. Dep’t of Health and Hum. Servs., Guidance on How the HIPAA Rules Permit Covered Health Care Providers and Health Plans to Use Remote Communication Technologies for Audio-Only Telehealth (Jun. 13, 2022), available at https://www.hhs.gov/about/news/2022/06/13/hhs-issues-guidance-hipaa-audio-telehealth.html.
  • 11.  U.S. Dep’t of Health and Hum. Servs. Off. for Civ. Rts., HHS.gov, available at https://www.hhs.gov/civil-rights/index.html (last visited Jun. 21, 2022).
  • 12.  Civil Rights and COVID-19, U.S. Dep’t of Health and Hum. Servs. Off. for Civ. Rts., (last visited Jun. 21, 2022).
  • 13.  See U.S. Dep’t of Justice, Communicating Effectively with People with Disabilities,ADA.gov, available at https://beta.ada.gov/topics/effective-communication/ (last visited June 21, 2022); U.S. Dep’t of Justice, Effective Communication, ADA.gov, available at https://www.ada.gov/effective-comm.pdf (last visited June 21, 2022); see also, e.g., 28 C.F.R. §§ 35.160(a), 36.303(c).
  • 14.  See U.S. Dep’t of Justice, Statement by the Principal Deputy Assistant Attorney General for Civil Rights Leading a Coordinated Civil Rights Response to Coronavirus (COVID-19), Office of Public Affairs (Apr. 2, 2021), available at https://www.justice.gov/opa/pr/statement-principal-deputy-assistant-attorney-general-civil-rights-leading-coordinated-civil.
  • 15.  See U.S. Dep’t of Justice, Barrier-Free Health Care Initiative, ADA.gov (Apr. 13, 2013), available at https://www.ada.gov/usao-agreements.htm.
  • 16.  28 C.F.R. § 42.405(d)(2) (“Federal agencies shall also take reasonable steps to provide, in languages other than English, information regarding programs subject to title VI.”)
  • 17.  See, e.g., 42 U.S.C. §§ 12132, 12182(a); 42 U.S.C. § 2000d; 28 C.F.R. §§ 35.130(a), 35.160, 36.201(a), 36.303; 45 C.F.R. § 84.4(a), (b); 28 C.F.R. § 42.104; 28 C.F.R. § 42.405(d); U.S. Department of Health and Human Services, Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons, 68 Fed. Reg. 47,311, 47,316-17 (Aug. 8, 2003); U.S. Dept. of Justice, LEP Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons, 67 Fed. Reg. 41,455, 41,461-64 (June 18, 2002).
  • 18.  See, e.g., 42 U.S.C. §§ 12132, 12182; 29 U.S.C. § 794(a); 42 U.S.C. § 18116 (this statute prohibits discrimination on the basis of disability, among other characteristics, in health programs and activities receiving federal financial assistance, or programs and activities administered by either a federal executive agency or an entity created by Title I of the Patient Protection and Affordable Care Act); 28 C.F.R. §§ 35.130(a), 36.201(a); 45 C.F.R. § 84.4(a).
  • 19.  See, e.g., 42 U.S.C. §§ 12132, 12182(a); 28 C.F.R. §§ 35.130(b)(1)(ii), 36.201(a), 36.202(b); 45 C.F.R. § 84.4(b)(1)(ii).
  • 20.  See, e.g., 28 C.F.R. 35.130(b)(7)(i); 28 C.F.R. 36.302(a); Alexander v. Choate, 469 U.S. 287 (1985); Southeastern Community College v. Davis, 442 U.S. 397 (1979).
  • 21.  See, e.g., 28 C.F.R. §§ 35.160, 36.303; 45 C.F.R. § 84.52(d).
  • 22.  See, e.g., 28 C.F.R. §§ 35.160(a)(1), (b)(1), 36.303; 45 C.F.R. § 84.52(d).
  • 23.  See, e.g., 28 C.F.R. §§ 35.130(f), 36.301(c), 36.303.  However, if providing a particular aid or service poses an undue burden to the provider or a fundamental alteration to their program or service, the provider need not provide that aid or service.  See, e.g., 28 C.F.R. §§ 35.164, 36.303(a), (h); Alexander v. Choate, 469 U.S. 287 (1985); Southeastern Community College v. Davis, 442 U.S. 397 (1979).  Under these circumstances, the provider must instead pursue an alternative option, if one exists, that would not result in an alteration or undue burden, but would nevertheless ensure that, to the maximum extent possible, people with disabilities receive the service the provider is offering.  See, e.g., 28 C.F.R. §§ 35.164, 36.303(h).
  • 24.  See, e.g., 28 C.F.R. §§ 35.160(b)(2), 36.303(c)(1)(ii).
  • 25.  See, e.g., 28 C.F.R. §§ 35.104, 36.104; 45 C.F.R. §92.102(b)(2)(ii).
  • 26.  See, e.g., 28 C.F.R. §§ 35.104, 35.160(b), 36.303(a), (b), (c); 45 C.F.R. § 84.52(d).
  • 27.  See, e.g., 28 C.F.R. §§ 35.160(c)(1), 36.303(c)(2).
  • 28.  See, e.g., 28 C.F.R. §§ 35.160(c)(1), 36.303(c)(2).
  • 29.  Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d; see also Section 1557 of the Patient Protection and Affordable Care Act, 42 U.S.C. § 18116(a) (prohibiting discrimination on the basis of race, color, and national origin, among other bases).
  • 30.  See Lau v. Nichols, 414 U.S. 563 (1974) (holding that Title VI requires that LEP individuals be provided with meaningful access, and that a denial of such language assistance services constitutes national origin discrimination).
  • 31.  See 28 C.F.R. § 42.104(b)(2); 28 C.F.R. § 405(d) (noting that federal agencies shall take reasonable steps to inform the public, in languages other than English, about program subject to Title VI); see also Lau, 414 U.S. at 566-69; DOJ LEP Guidance to Recipients, 67 Fed. Reg. at 41,459 (“Recipients are required to take reasonable steps to ensure meaningful access to their programs and activities by LEP persons.”).  As the June 2002 DOJ guidance explains, “Under DOJ regulations implementing Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d, et seq. (Title VI), recipients of Federal financial assistance have a responsibility to ensure meaningful access to their programs and activities by persons with limited English proficiency (LEP).” 67 Fed. Reg. at 41,455 (citing 28 C.F.R. § 42.104(b)(2)).  To determine the extent to which language access services need to be provided, DOJ’s 2002 guidance outlines a four-factor individualized assessment. 67 Fed. Reg. at 41,459.  The June 2002 DOJ guidance’s intent is “to suggest a balance that ensures meaningful access by LEP persons to critical services while not imposing undue burdens” on smaller entities.” Id.
  • 32.  See 28 C.F.R. § 42.104(b)(3) (describing that appropriate data to collect to determine compliance with Title VI includes “use or planned use of bilingual public-contact employees service beneficiaries of the program where necessary to permit effective participation by beneficiaries unable to speak or understand English); 28 C.F.R. § 405(d) (noting that federal agencies shall take reasonable steps to inform the public, in languages other than English, about program subject to Title VI).  For further information about how to assess the competence of interpreters or translators, see DOJ LEP Guidance to Recipients 67 Fed. Reg. at 41,461-64; HHS LEP Guidance to Recipients 68 Fed. Reg. at 47,316-17.
  • 33.  DOJ LEP Guidance to Recipients, 67 Fed. Reg. at 41,462 (noting that “when oral language services are necessary, recipients should generally offer competent interpreter services free of cost to the LEP person); HHS LEP Guidance to Recipients, 68 Fed. Reg. at 47,320 (describing how “it may be important for the recipient [of federal financial assistance] to let LEP persons know that [language] services are available and that they are free of charge” once the recipient has decided that it will provide language services).
  • 34.  DOJ LEP Guidance to Recipients, 67 Fed. Reg. at 41,462 (noting that “when oral language services are necessary, recipients should generally offer competent interpreter services free of cost to the LEP person); HHS LEP Guidance to Recipients, 68 Fed. Reg. at 47,320 (describing how “it may be important for the recipient [of federal financial assistance] to let LEP persons know that [language] services are available and that they are free of charge” once the recipient has decided that it will provide language services).
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