HHS and DOJ provide guidance on nondiscrimination in telehealth

The Department of Health & Human Services (HHS) and the Civil Rights Division of the Department of Justice (DOJ) have jointly published guidance on how telehealth providers can comply with nondiscrimination laws. The Americans with Disabilities Act (ADA) and other federal laws require health care providers to make their services accessible to people with disabilities (such as vision, hearing or intellectual disabilities) and people with limited proficiency in English. The new guidance describes how these antidiscrimination laws apply to telehealth services.

The departments discuss the example of a physician who offers telehealth services to patients generally, but excludes patients with intellectual disabilities. The physician can't make the blanket assumption that such patients will be unable to use the online platform required for telehealth. Office staff may need to discuss the patient's needs in advance of the appointment and adjust customary procedures, such as allowing the disabled person to have a support person assist with the telehealth appointment.

Patients who have hearing or visual disabilities may also require accommodation. The guidance provides several examples:

• A physical therapy practice that provides remote training sessions to patients may need to make sure the telehealth platform allows a sign language interpreter to join the session
• A mental health provider may need to ensure that the provider's telehealth platform can support real-time captioning for patients who are hard of hearing
• A dietician who uses a web-based platform to provide written dietary recommendations may need to assure that the instructions are compatible with a blind patient's screen reader
• A physician who provides remote consultations through a video platform may need to provide a consultation by phone for a visually disabled person who requests that option.

Health care providers that receive federal financial assistance, such as federally qualified health centers, are required to take reasonable steps to provide meaningful access to their services for patients who have limited proficiency in English (LEP). In the context of telehealth, this may require selecting a telehealth platform that can include a telephone or video remote interpreter as part of the patient's telehealth appointment.

Ensuring access is not a new issue for health care providers, who have long experience with the need to assure that physical facilities and office procedures accommodate patients with disabilities. The new guidance makes clear that telehealth raises unique issues, and providers should devote careful attention to how they can best serve these populations with new technologies.

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Published: 13 September 2022 13 September 2022

Last Updated: 13 September 2022 13 September 2022

• telehealth
• telemedicine
• Americans with Disabilities Act
• disabilities
• limited English proficiency
• nondiscrimination

OCR's guidance on HIPAA compliance for telehealth in the post-Covid future

When the Covid pandemic began, many health care providers wanted to make use of telehealth to continue providing care while limiting exposure. However, providers worried that remote communications technologies could violate the Health Insurance Portability and Accountability Act (HIPAA) Privacy and Security Rules. In March 2020, the Office for Civil Rights (OCR) notified health care providers that it would use enforcement discretion in applying HIPAA so that care could be furnished remotely as long as reasonable precautions were taken to protect confidentiality. However, this notification will expire when the Covid public health emergency (PHE) is no longer in effect.

On June 13, 2022, OCR published guidance on how providers may continue to use audio-only telehealth once the PHE expires. OCR notes that health care providers must use reasonable safeguards to limit incidental disclosures of protected health information (PHI), by using a private office if available, or if not, by avoiding use of a speakerphone. OCR also states that if the patient is not known to the provider, the provider must verify the identity of the patient, either orally or in writing (which could include using electronic methods).

OCR notes that the HIPAA Security Rule does not apply to audio-only telehealth services if the provider is using a landline, because the information transmitted is not electronic. However, electronic communication technologies do require compliance with HIPAA Security. This would include smartphone apps, Voice over Internet Protocol (VoIP) technologies, and messaging services that electronically store audio messages. Providers using these technologies should address the vulnerabilities in their security risk analysis, including whether risks can be mitigated with use of encryption. OCR points out that the HIPAA rules apply only to the health care provider end of the communication: the patient may use any telephone system they choose.

Finally, OCR addressed when a provider must have a business associate agreement (BAA) with a vendor providing telecommunications services (TSP). If the TSP has only transient access to PHI being transmitted, no BAA is required because the TSP is merely a conduit. However, if the service provided by the TSP includes storing recordings or transcripts, then a BAA is needed.

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Published: 21 June 2022 21 June 2022

Last Updated: 21 June 2022 21 June 2022

• telehealth
• telemedicine
• HIPAA
• HIPAA Privacy Rule
• HIPAA Security Rule

Employer health plans increased telemedicine coverage during 2021

The Kaiser Family Foundation (KFF) released its annual survey of employer-sponsored insurance on November 10, 2021. The survey reflects health benefits offered in 2021 by private and non-federal public employers with three or more workers: over 155 million persons. For 2021, KFF found that 95% of firms with 50 or more employees covered some health care services provided through telemedicine, up from 85% in 2020 and 67% in 2018.

Among firms offering telemedicine benefits, 79% of large firms (200 or more employees) and 61% of small firms made some changes to their telemedicine benefits. Many employers (66% of large employers and 47% of small firms) increased employee communication about telemedicine resources. Benefit changes included expanding the number of services covered through telemedicine (35% of large firms and 19% of small firms); expanding the number or types of telemedicine providers (33% of large firms and 19% of small firms); expanding coverage for additional modes of delivering telemedicine, such as by phone (36% of large firms and 30% of small firms; and expanding the settings or locations where covered persons may use telemedicine (28% of large firms and 22% of small firms). Some employers eliminated or reduced cost-sharing for telemedicine services (27% of large firms and 15% of small firms).

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Published: 11 November 2021 11 November 2021

Last Updated: 11 November 2021 11 November 2021

• telehealth
• telemedicine
• health insurance

OIG reports most Medicare beneficiaries using telehealth had an established relationship with a provider

The Office of Inspector General (OIG) of the Department of Health and Human Services published a data snapshot dated October 2021, examining telehealth utilization by Medicare beneficiaries from March to December 2020. During this period, 26 million Medicare beneficiaries (39% of all Medicare beneficiaries) received at least one telehealth service. The OIG found that 84% of Medicare beneficiaries received all their telehealth services from providers with whom they had an established relationship. For office visits, 83% of beneficiaries had an established relationship. Office visits were the most common type of telehealth service, accounting for nearly half of all telehealth services (45.5 million office visits). Beneficiaries receiving home visits via telehealth were the least likely to have an established relationship with their provider (34%). However, home visits were only 1% of all services provided via telehealth.

There were some differences in telehealth utilization between beneficiaries in traditional Medicare and Medicare Advantage plan enrollees. This is not unexpected, since Medicare Advantage plans had greater flexibility to cover telehealth services prior to the pandemic. During the study period, one third of beneficiaries in traditional Medicare received telehealth services compared to 45% of Medicare Advantage enrollees. A slightly larger percentage of traditional Medicare beneficiaries (86% compared to 81%) had an established relationship with the telehealth provider compared to Medicare Advantage enrollees, except for physical, occupational and speech therapy. Both traditional Medicare and Medicare Advantage beneficiaries with established provider relationships had an in-person visit with the provider an average of four months prior to the first telehealth service.

Comment: this study should be reassuring to policymakers who worry that expanding telehealth eligibility permanently would open the floodgates to Medicare fraud. It suggests that Medicare beneficiaries are generally using telehealth as an adjunct to regular provider relationships.

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Published: 24 October 2021 24 October 2021

Last Updated: 24 October 2021 24 October 2021

• telehealth
• Medicare