Applicable Provider Types: All
Is Your Entity in Compliance?
Recent regulatory language makes clear that most healthcare providers must provide free auxiliary aids and services for patients with disabilities. This requirement stems from the U.S. Department of Health and Human Services Office for Civil Rights (OCR) and the Centers for Medicare & Medicaid Services (CMS) final rule published on May 6, 2024, on nondiscrimination (the 2024 rule) pursuant to Section 1557 of the Affordable Care Act (ACA). Section 1557 prohibits discrimination on the basis of race, color, national origin, sex, age or disability in health programs or activities that receive federal funding, including Medicare and Medicaid. As such, covered entities must take steps to ensure communications with individuals with disabilities are as effective as communications with nondisabled individuals. While this is a new nondiscrimination regulation, it aims to strengthen protections for individuals with disabilities in a way that is consistent with the Americans with Disabilities Act (ADA), which arguably may already have required such free aids and services in the healthcare setting.
Covered entities are required to furnish appropriate auxiliary aids and services free of charge to ensure effective communication for those individuals who request them. The 2024 rule requires accessibility to physical locations and accessibility of information and communication technology (ICT). Health programs and activities provided through ICT must be made accessible unless doing so would result in significant difficulty or expense, or fundamentally alter the specific health programs. The 2024 rule also includes a requirement that the covered entity make reasonable modifications, consistent with the regulations implementing the ADA, to ensure compliance unless doing so would fundamentally alter the nature of the health program or activity. Most of these requirements were in the 2016 rule, which was removed in a 2020 rule.
Covered entities, which includes healthcare providers participating in Medicare, Medicaid or contracted with a Medicare Advantage plan, among others, must comply with the requirements of the 2024 rule. Penalties for noncompliance can lead to fines, civil rights litigation or other corrective actions. OCR is taking this requirement seriously, having issued a Notice of Violation on Sept. 12, 2024 to a Puerto Rican hospital for failing to provide an interpreter and provide auxiliary aides and services to a patient who is deaf and undergoing a court-ordered psychiatric evaluation. Handwritten notes, gestures, and lip reading were insufficient means to comply with the rule. To ensure compliance with additional requirements and future effective dates of the 2024 rule for other required changes, please see our previous article on the 2024 rule and our previous Ounce of Prevention installment for requirements regarding individuals with limited English proficiency.
Pending litigation brought by the states of Texas and Montana and Tennessee, among others, has delayed the effective date and enforcement of certain portions of the 2024 rule, which expands unlawful discrimination on the basis of sex to include that based on gender identity and sexual orientation. Notices of appeal have been filed in all three key cases.
How to Confirm Compliance?
To assess you are ensuring effective communication and accessibility of technology and physical locations for individuals with disabilities, assess the required criteria under each question below:
- Do you provide services to patients who are deaf or hard of hearing remotely or on-site?
- Services must be free to the patients with disabilities.
- Appropriate auxiliary aids and services must be provided, which may include, but are not limited to, qualified interpreters.
- Are your interpreters qualified? Qualified interpreters, which include sign language interpreters, oral transliterators, and cued-language transliterators, must:
- Demonstrate proficiency in communicating in and understanding English and a non-English language (including American Sign Language or other sign languages); or another communication modality (such as cued-language transliterators or oral transliteration);
- Be able to interpret effectively, accurately, and impartially, both receptively and expressively, using any necessary specialized vocabulary or terms without changes, omissions, or additions and while preserving the tone, sentiment, and emotional level of the original statement; and
- Adhere to generally accepted interpreter ethics principles including client confidentiality.
- Are you providing auxiliary aids and services to patients who are blind?
- Auxiliary aids and services must be provided free of charge.
- Examples of services for individuals who are blind include: qualified readers; taped texts; audio recordings; Braille materials and displays; screen reader software; magnification software; optical readers; secondary auditory programs (SAP); large-print materials; accessible information and communication technology; and other effective methods of making visually delivered materials available to persons who are blind or have low vision.
- Have you verified compliance in all technology channels through which health activities and services are provided?
- All of the previous requirements must apply to ICT.
- Examples of ICT include information kiosks and transaction machines; telecommunication equipment; telehealth interfaces or applications; software; mobile applications; websites; videos; and electronic documents.
- Have you verified that your healthcare facility meets the physical accessibility requirements of the ADA?
- At a minimum, walk around your facility and consider if a patient with disabilities can navigate your facilities.
- Best practice: engage a building inspector to verify ADA compliance. Based on such findings, implement modifications as covered entities must make reasonable modifications, consistent with the regulations implementing the ADA, to comply with standards for accessibility of buildings and facilities.
- To the extent you answer any of the foregoing questions with a “no” or “unsure,” you should make changes to your procedures to come into compliance with the 2024 rule. The foregoing requirements are active as of the 2024 rule’s effective date of July 5, 2024.
If you need assistance ensuring that you are in compliance with the provision of free auxiliary aids and services to individuals with disabilities, McGuireWoods attorneys can assist.
Ounce of Prevention is a McGuireWoods series that details healthcare laws and regulations and offers tips on how providers can ensure they are in compliance. To recommend a topic for a future installment, email Gretchen Heinze Townshend at [email protected] or Tim Fry at [email protected].