Law360 (July 22, 2020, 6:13 PM EDT) --
Telehealth providers often use various types of technology available to provide services — both synchronous (i.e., live, real-time) and asynchronous (i.e., store and forward). While there are many benefits and potential pitfalls to such a transition to telehealth services, one potential problem that is oftentimes overlooked is whether the technology needed to access telehealth services is accessible to individuals with disabilities.
A failure in this regard may provide an opening for potential plaintiffs to assert claims against telehealth providers for failure to provide access to individuals who are blind or have low vision, or for failure to provide effective communication to individuals who are deaf or hard of hearing.
The obligation to make telehealth services accessible is grounded in Title III of the Americans with Disabilities Act. The ADA requires places of public accommodation, including health care providers, to provide auxiliary aids and services necessary to achieve effective communication with individuals with disabilities, in order to provide them equally effective communication as is provided to individuals without disabilities.
Section 1557 of the Affordable Care Act may also require covered entities to provide effective communications for individuals with disabilities. Accessibility to telehealth technology arguably is covered by this Title III obligation.
Risk of Lawsuits Stemming From Inaccessible Technology
Many health care providers, like other businesses, have already faced the onslaught of private demand letters and putative class action lawsuits filed in both state and federal court against both for-profit and nonprofit businesses based on the theory that their websites or mobile applications are inaccessible to individuals with disabilities.
As those who have confronted these lawsuits may know, the current state of the law has led to businesses even being subject to duplicative actions in certain jurisdictions; primarily, New York, California and Florida. No matter where the provider may have physical offices, where a patient can obtain treatment even though physically located in another state — which telehealth makes possible — they could risk exposure in any state in which the services may be used.
These ADA Title III lawsuits and demand letters have not subsided with the COVID-19 pandemic, as users have increasingly resorted to using the internet for many aspects of their daily lives. People with visual disabilities use screen reader technology to operate websites and/or mobile applications, and people with hearing disabilities read captions.
Accordingly, any health care providers that operate with and/or rely on technology and, in particular, any providers of telehealth services, should carefully and promptly consider developing/maintaining websites, platforms and/or mobile applications that are accessible to individuals who have a hearing or visual disability.
This means, in practice, that telehealth providers must substantially conform their technology to the Web Content Accessibility Guidelines 2.1 Levels A and AA, confirming such status by human-based code and user/assistive-technology testing.
Telehealth providers should also consider the accessibility of third-party content when they are using external resources to provide their patients with access to information and tools such as patient educational resources, electronic health records and/or scheduling platforms. The reality is that, while the telehealth provider may not own or maintain these external resources, should a user of the telehealth platform be unable to access information or their health records, or to schedule an appointment, because of an inaccessible external resource, the telehealth provider itself may nevertheless be embroiled in litigation.
Moreover, it may face liability because Title III provides for joint and several liability in such an instance despite a telehealth provider's potential claim against the vendor for any damages resulting from such a suit. Such a claim would be premised on breach of contract or warranties or other bases.
As such, it is essential that any contracts telehealth providers enter into with their vendors obligate the vendor to make, and maintain, the telehealth companies' websites, mobile applications and/or systems accessible to individuals with disabilities (i.e., substantially conform them to WCAG 2.1 at Levels A and AA). These contracts should also contain indemnity provisions. This way, to the extent that such a claim arises, the telehealth company is in a position to demand that the vendor indemnify it.
Providing Effective Communication Through Telehealth Services
Another topic of frequent litigation, both by the U.S. Department of Justice and private plaintiffs, is health care companies' alleged failure to provide access to effective communications for individuals who are deaf or hard of hearing, resulting in a patient being unable to receive information from, or convey information to, the health care provider. The typical claims filed in this context are those asserting that a health care provider has failed to provide a patient with access to a qualified sign language interpreter.
In order to minimize the significant exposure which can flow from such a claim, telehealth providers should make sure that they have in place policies that will allow patients to effectively communicate with medical professionals. This includes providing patients with access to American Sign Language interpreters or video-remote interpreters for patients who require them, in addition to providing interpreters for individuals who require them for limited English proficiency, or real-time captions.
The health care provider is also obligated to accommodate caregivers or companions accompanying the patient should they require such accommodations, even when the patient does not. As such, if a caregiver or companion requires interpretive services, the telehealth provider must provide that accommodation without charge.
Assessing Potential Exposure and Privilege Issues
Technology platform and app audits can provide a telehealth provider with information as to any failure of its telehealth technology to meet WCAG 2.1 Levels A and AA guidelines. Such compliance audits are often done under the direction and guidance of legal counsel experienced in such matters to maximize the basis for the audit to properly fall within attorney-client privilege as essential to counsel's provision of a legal assessment of compliance and any prudent remediations.
The recent, dramatic shift to telehealth from traditional in-person care provides yet another opportunity for potential plaintiffs and claimants to bring lawsuits asserting that the technology is inaccessible to them or that they are unable to effectively communicate with their health care providers. Given that health care businesses and providers are continuing to face a seemingly endless stream of demand letters and lawsuits for both of these issues, it is critical to consider these issues with increased urgency with respect to telehealth services.
Frank Morris Jr. and Shira Blank are members at Epstein Becker Green.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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