CEOARE Comments to Department of Health and Human Services on Nondiscrimination in Health Programs
Dylan Nicole de Kervor
Acting Assistant Secretary for Planning and Evaluation
US Department of Health and Human Services
Office for Civil Rights
Attn: 1557 NPRM (RIN 0945-AA17)
Huber H Humphrey Building, Room 509F
200 Independence Avenue, SW
Washington, DC 20201
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October 3, 2022
RE: Docket HHS-OS-2022-0012, Nondiscrimination in Health Programs and Activities – Section 1557
Dear Assistant Secretary Nicole de Kervor,
CEO Action for Racial Equity (CEOARE) is pleased to provide input on the US Department of Health and Human Services (HHS, or the Department) Office of Civil Rights proposed rule on Section 1557 of the Affordable Care Act (ACA). We commend HHS on its mission-driven commitment to enhance the health and well-being of Americans and its increased focus on health equity. In this letter, we seek to provide input on proposed § 92.211 of the rule, seeking to codify specific provisions regarding accessibility of telehealth services.
As reported in the HHS Report by Samson et al. describing trends in use of telehealth by Medicare beneficiaries in 2020, there was a 63-fold increase in telehealth visits in 2020 compared to 2019, and behavioral health visits via telehealth showed the largest increase during that same time. For Black beneficiaries, the change in telehealth visits was 60 times higher from 2019 to 2020. Telehealth has clearly become a critical care pathway for access to healthcare and mental health services during this challenging time and the waiving of previous statutory limitations have been critical to expanding access to care.[1]
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About CEOARE
CEOARE is a national fellowship composed of over 100 signatory companies that unites the talent and resources with diverse expertise, across multiple industries and geographies, to advance public policy in four key areas — healthcare, education, economic empowerment, and public safety. Our mission is to identify, develop, and promote scalable and sustainable public policies and corporate engagement strategies that will advance racial equity, address social injustice, and improve societal well-being, with a focus on issues that disproportionately and systemically impact Black Americans. From a healthcare perspective we are familiar with the research and data that social determinants of health disproportionately negatively impact Black Americans. We believe a significant root cause of these adverse health and related outcomes for Black Americans is structural racism. From a policy perspective, decisions being made now about obstacles to equitable telehealth access may reinforce or deconstruct some of these structural obstacles. We also acknowledge the need to close the digital divide and the importance of connecting the disconnected, particularly addressing the need for high-quality internet access, affordability and adoption for Black Americans. The Census reports that 36.4% of Black households do not have a computer or broadband access.
One of CEOARE’s policy focus areas we identified to advance equitable access to health care for Black Americans is equity in telehealth expansion. Our work in advocating for equitable telehealth expansion is guided by our foundational principles through a racial equity lens:
- ENDORSE the elimination of inequitable restrictions and obstacles to coverage for inclusive telehealth services,
- PROMOTE and AMPLIFY research that demonstrates the impact of telehealth expansion on Black patients,
- COLLABORATE with and ADVOCATE for the Black community to enable cultural humility, user-centered telehealth design and implementation, and
- EDUCATE and ENGAGE patients and providers on digital health literacy, which can help foster adoption, trust, and accountability.
We write to provide input on the proposed draft with the lens of racial equity and request that HHS consider these comments as part of the rule-making process. At a high-level, we will comment on:
- The proposed overall approach and whether covered entities and others would benefit from a specific provision addressing accessibility in telehealth services, for individuals with disabilities and individuals with limited English proficiency (LEP).
- What such a provision should include, and why the proposed provisions related to information and communication technology (ICT), effective communication for individuals with disabilities, and meaningful access for LEP individuals are insufficient.
- Challenges with accessibility specific to telehealth and recommendations for telehealth accessibility standards that would supplement the ICT standards and effective communication requirements, including the range of technology available for accessing telehealth, including user-friendly design, as well as security and privacy requirements (e.g., when using public Wi-Fi access).
CEOARE Comments
In proposed § 92.211, HHS addresses nondiscrimination in the delivery of health programs or services via telehealth modalities. Specifically, the proposed rule clarifies the affirmative responsibility of covered entities to confirm that discrimination does not exist in the delivery of telehealth services, including the responsibility to confirm that services are accessible to individuals with disabilities and individuals with LEP. Although telehealth services are implicitly included in the discrimination prohibition for covered entities, pursuant to this Section, HHS is seeking input on whether there should be specific provisions on the accessibility of telehealth separate from other sections of the rule applicable to ICT and LEP services. HHS is also seeking input on telehealth accessibility challenges and recommendations for appropriate standards.
CEOARE applauds HHS for including this discussion and acknowledging the importance of telehealth in the current healthcare landscape. The COVID-19 pandemic spurred historical levels of adoption and use of telehealth services across healthcare programs and activities. While previous 1557 rules have addressed non-discrimination and accessibility in ICT for disabled populations, these policies are largely focused on the end goal of creating, manipulating, storing, displaying, receiving, or transmitting electronic data and information. Telehealth services, however, extend beyond this definition. While ICT, as described above is largely intended to facilitate access to information in a program or activity, telehealth is different in that in many cases, a telehealth visit is the activity to which access is needed. As a result of this difference, factors like digital literacy and the availability of various telehealth modalities (e.g., audio-visual, audio-only, synchronous and asynchronous) play a significant role in determining the level of access available. In a recent perspective piece entitled, “Reducing Disparities in Telemedicine: An Equity-Focused, Public Health Approach,” the authors highlight the critical importance of addressing community-level obstacles with community-based solutions, including digital literacy. [2] According to a report from the US Department of Education published in 2018 describing digital literacy across the US,[3] the ability to navigate devices and telehealth programs is central to the achievement of high-quality telehealth care. This applies both for individuals with disabilities and the LEP population.
In proposed § 92.4, HHS aims to provide more detail in the definition of “limited English proficient individual” to explain that a LEP individual may be competent in English for certain types of communication (e.g., speaking or understanding), but may still be a LEP individual for other purposes (e.g., reading or writing). Similarly, we believe that while an individual may have services available to them through telehealth and may have the necessary access to translation and other interpretation services, we also recognize that an individual may have digital literacy obstacles, and telehealth modality restrictions that may prevent that individual from actually accessing those telehealth services. Therefore, we encourage HHS to provide additional language to account for these obstacles.
We also encourage HHS to consider that the implications of this proposed section extend beyond its impact on discrimination with relation to accessibility for LEP and disabled individuals. As a newly expanded healthcare service delivery tool, telehealth can provide many opportunities to increase access to healthcare for populations that have historically faced significant accessibility restrictions, including Black Americans, lower income individuals and other marginalized groups. However, in line with Lau and Knudsen,2 we believe that it is important that this expansion be accompanied by policies that protect and support access to telehealth services that promote equitable standards and consider the social determinants of health and community-level needs.
As such, we recommend HHS take action on the following:
- Move forward with the promulgation of a new § 92.211 specifically establishing minimum standards to prohibit discrimination in the delivery of telehealth services;
- Consider the importance of digital literacy as the Department assesses standards for meaningful access to health programs and activities; and
- Evaluate the impact of discrimination and accessibility obstacles in accessing telehealth services based on race/ethnicity, sex, gender, socio-economic status, insurance status, tribal affiliation, and other identities that may impact access.
Thank you for the opportunity to provide comments and highlight the importance of equitable access to modernized healthcare for Black Americans. We recognize this proposed rule as part of a broader administration-wide strategy to create a more equitable health system that can result in better accessibility, quality, affordability, and innovation and we look forward to the opportunity to serve as a resource on these issues. If you have any questions, please do not hesitate to contact Roz Brooks via email at roslyn.g.brooks@ceoactionracialequity.com.
Sincerely,
CEO Action for Racial Equity
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Citations
[1] Samson LW, Tarazi W, Turrini G, Sheingold S. Medicare beneficiaries’ use of telehealth in 2020: trends by beneficiary characteristics and location [Internet]. Washington (DC): Department of Health and Human Services, Office of the Assistant Secretary for Planning and Evaluation; 2021 Dec [cited 2022 July 6]. Available from: https://aspe.hhs.gov/sites/default/files/documents/a1d5d810fe3433e18b192be42dbf2351/medicare-telehealth-report.pdf
[2] Lau J, Knudsen J. Reducing Disparities in Telemedicine: An Equity-Focused, Public Health Approach. Health Aff (Millwood). 2022;41(5):647-50.
[3] Mamedova S, Pawlowski E, Hudson L. A Description of US Adults Who Are Not Digitally Literate. [Internet]. Washington (DC): Department of Education, Stats in Brief: 2018 May [cited 2022 July 6]. Available from: https://nces.ed.gov/pubs2018/2018161.pdf.
