[ Thursday, January 09, 2025 ]
OCR's January 2025 "Dear Colleague" letter (slightly off-topic): As you know, the Office for Civil Rights is the HIPAA enforcement agency; but HIPAA is not all that OCR does, it also is responsible for enforcing anti-discrimination provisions of health-related laws and HHS rules, such as the notorious Section 1557 of the Affordable Care Act. And being a hyper-politicized department of still-current hyper-political executive administration (it seems to be in an internal competition with the Department of Education and the FTC to see who can be the most progressive/left-wing), it currently interprets those rules in a hyper-partisan fashion.
NOTE, importantly, this characterization does not apply to the HIPAA enforcement side of OCR, perhaps because HIPAA doesn't have the same capacity for partisan regulatory crusading as the general "civil rights" mandate of the rest of the office (although the partisanship does seep in where abortion is in play). So, I note that this comment is really OFF TOPIC for a HIPAA blog, but it's something that the healthcare industry needs to know about anyway.
On January 7, OCR issued a "Dear Colleague" letter outlining OCR's regulatory interpretation of how to apply Section 1557 and Section 405 of the Rehabilitation Act of 1973. This is not a regulation; regulations require the ability of the public to comment and complain. But when the regulatory tell you this is what they think the law requires, you don't have to believe them or do what they say, but you damn well better be prepared to spend a lot of money defending yourself from the regulatory process they can put you through. "The process is the punishment."
The letter starts out by pointing out how doctors hate people with disabilities, because "large proportions of practicing physicians hold biased
or stigmatized perceptions of people with disabilities, perceiving them to have a lower quality of
life because of their disabilities." So you know where it's coming from.
It then goes on to address a handful of areas where potential discriminatory practices might come into play:
- Medical Treatment Decisions: Treatment can't be limited or denied "based on biases or stereotypes about the patient’s disability,
judgments that the qualified individual will be a burden on others due to their disability, or on the
belief that the life of a person with a disability has lesser value than the life of a person without a
disability." But how can you tell if the judgment is based on a bias or stereotype versus an actual statistical probability (people with a certain disability are more or less likely to have a particular condition or respond in a particular way to a particular treatment, but are also socially prejudged for that condition or response)? There's obvious overlap there.
- Value Assessment Methodologies: OCR states that the Rehabilitation Act "prohibits recipients from using any value measure, assessment, or tool that
discounts the value of life extension on the basis of disability. . . ." And Section 1557 states that "covered entities may not discriminate on the basis of
disability in their health programs or activities through the use of patient care decision support
tools." Fair enough, but what if the disability is highly likely to result in a shortened life span for the individual?
- Accessibility of Kiosks: providers who have self-service kiosks must make sure that they are accessible to people with disabilities (access when sitting or standing, audio/visual access aids, etc.) and must have alternate methods (with the same access, convenience, and confidentiality as the kiosks). Other than making the kiosk less accessible to a non-disabled person, it seems that any alternate method will never be as accessible or convenient, and the methods that would make it more accessible or convenient would likely result in less confidentiality.
- Web Content and Mobile App Accessibility: providers with 15 or employees must make sure their web content and mobile applications are compliant with Web
Content and Accessibility Guidelines (WCAG) 2.1 AA by May 11, 2026; providers with fewer than fifteen
employees have until May 10, 2027.
- Medical Diagnostic Equipment: Sets standards for how much of your diagnostic equipment is "accessible" to the disabled (for example, a provider who weighs patients may need to purchase a wheelchair-accessible scale).
- Other Provisions: Providers need access to sign language interpreters or braille content. Care settings must be as "integrated" as possible (I assume this is a reference to racial integration, but the letter is unclear).
Jeff [12:49 PM]
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