In responding to the most recent draft of the Section 1557 regulations, a variety of commenters noted that there were many accessibility issues associated with covered programs and services that also touched on patient confidentiality and privacy.
A blind patient is asked to complete required new patient documentation for their doctor. That documentation is inaccessible. Visual assistance is provided by a third party (nurse, friend, administrator) who helps the patient complete the forms. When this occurs, the blind person is “is forced to rely on a third party for assistance and, regardless of their personal relationship, disclose confidential information to that person such as the patient’s medical history, illnesses, medications, and history of disease or genetic patterns running in the patient’s family” (81 FR 31427).
It would seem that the HHS Office of Civil Rights (OCR) is going to take a relatively dim view of this approach as an effective accommodation and alternative.
In particular, the OCR notes that the rule incorporates the relevant ADA requirements present in 28 CFR 35.160(b)(2) which note that ‘‘[i]n order to be effective, auxiliary aids and services must be provided [to individuals with disabilities] . . . in such a way as to protect the privacy and independence of the individual with a disability” (81 FR 31427).
The OCR then reminds covered entities that in considering access to electronic information and technology “confidentiality of health information is a critical issue, and covered entities must ensure that the private health information of individuals with disabilities is appropriately protected.”
Accordingly, SSB would view any provision of alternative communication services that fail to protect the privacy of people with disabilities in a highly skeptical light.
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