On May 18, 2016, the Department of Health and Human Services
("HHS") issued a final rule implementing Section 1557 of the Patient Protection and Affordable Care Act
("ACA"), which prohibits discrimination on the grounds of
race, color, national origin, sex, age, or disability in certain
health programs and activities. Effective July 18, 2016, the final
rule, "Nondiscrimination in Health Programs and
Activities" ("Rule"), will require entities covered
by the Rule to comply with certain accessibility requirements
applicable to their use of technology in the provision of
services.
The Rule applies to: (i) to every health program or activity, any
part of which receives federal financial assistance provided or
made available by HHS; (ii) health insurance plans and
marketplaces; and (iii) HHS itself. The Rule defines "HHS
financial assistance" broadly, to include almost all types of
financial benefit transfers, among them grants, loans, credits,
subsidies, or transfers of real or personal property (but excludes
Medicare Part B payments). Key points of the Rule include the
following:
First, the Rule requires entities covered by the Rule to make
all programs and activities provided through electronic and
information technology (e.g., a website) accessible for individuals
with disabilities, unless doing so would impose undue financial or
administrative burden. In addition, such entities must provide
appropriate auxiliary aids and services when necessary to ensure an
equal opportunity for persons with disabilities to participate in
and benefit from the entity's health programs or activities.
Auxiliary aids and services include qualified sign language
interpreters, captioning, large print materials, screen reader
software, text telephones, and video remote interpreting services,
among other things. In short, entities covered by the Rule must
take appropriate steps to ensure that communications with
individual with disabilities are as effective as communications
with others, in accordance with Title II of the Americans with
Disabilities Act of 1990 and related regulations.
Second, entities covered by the Rule must take reasonable steps to provide
meaningful access to individuals with limited English proficiency
eligible to be served or likely to be encountered in their
health programs and activities. This includes providing language
assistance services, such as oral language assistance or written
translation, free of charge and in a timely manner.
Third, entities covered by the Rule must comply with certain
procedural requirements. Specifically, the Rule requires applicable
entities with 15 or more employees to have a grievance procedure,
to identify at least one individual accountable for coordinating
the regulated entity's compliance, and to have a written
process in place for handling grievances.
In addition, entities covered by the Rule that operate
websites must post on the website notices of nondiscrimination and taglines that alert individuals with limited
English proficiency to the availability of language assistance
services. Such taglines must be posted in at least the top 15 non-English languages spoken in the state in
which the entity is located or does business.
For health care providers operating in the digital health industry
as well as for software and other technology vendors working with
health care providers, the Rule may create a number of new
challenges. Website accessibility has likewise been the focus of
increasing litigation activity, and a number of high-profile
settlements have emphasized the potential risks entities may face
by failing to address technology-based accessibility issues.
Providers would be well advised to review their websites and other
customer-facing technology with counsel to determine the
applicability of the Rule to their activities, as well as any
broader accessibility considerations and exposure.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.