Mandating Telehealth Accessibility in Light of Covid-19
September 20, 2022
The pandemic has highlighted various inequities experienced by people with disabilities, especially internet inaccessibility. The Americans with Disabilities Act (ADA) was passed before the internet was commonly used; consequently, there is no explicit language addressing website—much less telehealth—accessibility. In July, HHS and the Department of Justice jointly issued Guidance on Nondiscrimination in Telehealth which states that telehealth accessibility is required not only by the ADA, but also by the Rehabilitation Act, the Civil Rights Act and the Affordable Care Act. However, the Guidance is not legally binding.
According to the Centers for Disease Control and Prevention (CDC), 26 percent of Americans have a disability (e.g., mobility, cognition, hearing, vision). Although the Americans with Disabilities Act (ADA) requires that health care services be accessible to persons with disabilities (PWDs), many experience serious access barriers. Expanded use of telehealth during the COVID-19 pandemic has mitigated some of these barriers (e.g., transportation for persons with mobility disabilities), but also exacerbated others (e.g., communication for persons with hearing disabilities).
Even before COVID-19, PWDs were at a substantially greater risk for adverse health outcomes compared to their nondisabled peers. During the pandemic, between January 2019 and November 2020, persons with intellectual disabilities were six times more likely to die from COVID-19 than the general population. Despite these staggering disparities, health care accessibility for PWDs is still insufficient. A Department of Health and Human Services (HHS) February 2022 Issue Brief specifically addressing disparities in telehealth utilization did not even include disability status as a distinguishing criteria.
The pandemic has highlighted various inequities experienced by PWDs, especially internet inaccessibility. For those disproportionately impacted by COVID-19, inaccessible care amplifies negative outcomes. But the legal requirements for inaccessible telehealth platforms are unclear because telehealth, by definition, is completely virtual.
The ADA was passed before the internet was commonly used. Consequently, there is no explicit language addressing website—much less telehealth—accessibility. On July 29, 2022, HHS and the Department of Justice (DOJ) jointly issued Guidance on Nondiscrimination in Telehealth (“Guidance”). Per the Guidance, telehealth accessibility is required not only by the ADA, but also by Section 504 of the Rehabilitation Act (RA), Title VI of the Civil Rights Act (CRA), and Section 1557 of the Affordable Care Act (ACA). However, the Guidance is not legally binding.
DOJ has directed entities to two standards for website accessibility: Web Content Accessibility Guidelines (WCAG) and Section 508 of the RA. But the RA applies only to federal agencies and WCAG is not legally binding—a 2022 study found at least 96.8 percent of 1,000,000 websites non-compliant with WCAG (e.g., had low contrast text).
Inexplicit DOJ regulation has enabled ongoing litigation regarding website accessibility. Inconsistent litigation over ADA coverage of non-physical locations (e.g., online-only telehealth platforms, such as Teladoc) has led to varying accessibility standards:
- ADA standard. Some federal jurisdictions (1st, 2nd, and 7th Circuits) have applied the ADA to non-physical places because the statute covers services of places of public accommodation rather than at such places. Therefore, some online-only telehealth platforms are covered by the ADA.
- No standard. Other jurisdictions (3rd, 6th, and 11th Circuits) have limited their interpretations of “places of public accommodations” solely to physical locations. Therefore, the ADA does not apply to some online-only telehealth platforms.
- Nexus standard. In the 9th Circuit, non-physical places are subject to the ADA only if there is a sufficient connection between the online location and a physical place. Under this “nexus standard,” the applicability of ADA accessibility standards is uncertain.
Because inaccessible telehealth platforms are not necessarily subject to liability, they are not incentivized to accommodate PWDs. Under the inconsistent ADA litigation and lack of DOJ regulation, telehealth-based inequities will persist.
Although the Guidance suggests filing complaints with DOJ, a review of recent resolutions shows only 37 non-education-related website accessibility disputes since 2016. Still, the Guidance indicates that this issue is gaining national recognition. In fact, DOJ has announced its intent to publish a Notice of Proposed Rulemaking (NPRM) in April 2023 to address website accessibility. Additionally, on August 4, 2022, HHS issued a Proposed Rule to strengthen nondiscrimination provisions of ACA Section 1557, including ones on telehealth.
This document was developed by Madisyn Puchebner, J.D. Candidate ’23, Legal Researcher, and reviewed by Leila Barraza, J.D., MPH, Senior Consultant, Network for Public Health Law – Western Region Office at the Sandra Day O’Connor College of Law, Arizona State University.
The Network for Public Health Law provides information and technical assistance on issues related to public health. The legal information and assistance provided in this document do not constitute legal advice or legal representation. For legal advice, readers should consult a lawyer in their state.
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