Applicable to all HIPAA compliant telehealth, chiropractors need to make sure that the technology platform that they are using is secure to avoid any inappropriate disclosure of patient information
Since the advent of the COVID-19 pandemic, many health care providers have begun offering telehealth options. Chiropractors cannot offer their traditional hands-on services, but can provide other services such as nutritional counseling where they will need to know HIPAA compliant telehealth.
But what happens in regards to compliance and the Americans with Disabilities Act (ADA)? What do chiropractors need to know?
William Dillon, managing shareholder of Gunster law firm’s Tallahassee, Fla., office, has lots of good advice. Besides being licensed to practice law in Florida and board certified by the Florida Bar in the area of health law, he is also a regular speaker for the Florida Chiropractic Association and has presented at their national conference.
Patients with disabilities may not be able to use HIPAA compliant telehealth in the way that DCs are accustomed?
As providers covered under Title III of the ADA, chiropractors providing telehealth services need to able to have “effective communication” with their patients who have a communication disability. The goal should always be to effectively communicate with a disabled patient to the same extent as they would with a patient without a disability.
In most instances, the chiropractor has the obligation to provide the auxiliary aids and services so that there can be effective communication. Auxiliary aids and services can be things like: qualified interpreters, assistive listening devices, video texts displays, etc. However, this can be a “facts and circumstances” type of issue in that a chiropractor would not be expected to provide an aid or service that would be result in an undue burden on the provider.
Chiropractors should, whenever possible, communicate with their patients in advance to discuss what type of assistive aid or service might be appropriate. Finally, chiropractors should also make themselves aware of any specific state laws that may require additional obligations.
If the DC can’t provide telehealth to someone with a disability, does that mean they can’t offer telehealth at all?
Chiropractors need to be very careful in providing HIPAA compliant telehealth — or any service for that matter — to individuals based on the individual’s disability status. Complaints of discriminatory treatment can lead to review by government regulators including, but not limited to, the U.S. Department of Justice Civil Rights Division.
What about providing telehealth to a patient whose caregiver may not have a disability?
The role of the companion or caregiver needs to be examined. For example, if the companion or caregiver is the patient’s legal guardian or otherwise empowered to make health care decisions for the individual, then denying a request to allow the guardian to be able to effectively communicate on behalf of the patient could be considered a possible violation.
What are the most important tips for offering telehealth that is compliant?
From the Title III, “Does the telehealth platform allow for effective communication with the patient?” would be a primary question. From a more general perspective, that would be applicable to all HIPAA compliant telehealth, chiropractors need to make sure that the technology platform that they are using is secure to avoid any inappropriate disclosure of patient information.
During the COVID-19 crisis, the HHS Office of Civil Rights have relaxed their enforcement activities and have indicated that they will not subject providers to penalties for the good faith provision of telehealth services. In determining “good faith,” it really is somewhat common sense.
Telehealth sessions, on the provider side, should still be conducted in locations that allow for appropriate privacy. From a security perspective, while providers have been given a lot of leeway, the big no-no is the use of “public-facing” remote technology such as TikTok or Facebook Live, that would allow others to view the treatment session.
Another common practice that chiropractors should adhere to is to provide patients with informed consent about telehealth and what to expect — the pros and the cons.
What should chiropractors definitely not do or say to patients with disabilities regarding telehealth?
Perhaps the one consistent recommendation that I would make would be to make sure that provider engages in dialogue with patient requesting an accommodation. Don’t just dismiss a request without going through a collaborative discussion.
The law requires that all patients be treated equally. Unless a provider can legitimately articulate why a request presents an undue burden for them, they need to use their best efforts work with the patient.