Is your EHR ready for the ADA?
■ Physicians risk lawsuits if they fail to make electronic resources accessible to disabled patients.
By Alicia Gallegos — Posted April 1, 2013
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After twisting her ankle, Anne Taylor visited a Maryland health care clinic, where she was given a computer tablet and asked to fill out her medical history electronically. But Taylor could not perform the task. She is blind, and the tablet had no way of recording medical information without typing.
“Obviously, I couldn't do it, so I had to get help from the clerk,” said Taylor, director of Access Technology for the National Federation of the Blind in Maryland. “In a sense, I was giving my personal data to essentially a stranger. I didn't have any choice. I wanted to get my injury looked at.”
Such an experience is becoming more common for impaired patients as more medical practices move to electronic health records and electronic resources. Too often, health professionals do not consider whether disabled patients or employees are able to use electronic equipment such as EHRs, public websites and e-tools until a problem arises, legal experts say.
Recent legal challenges and settlements related to violations of the Americans with Disabilities Act highlight the problem of noncompliant e-data. In January, the 8th U.S. Circuit Court of Appeals found Creighton University School of Medicine in Nebraska liable for not providing reasonable software accommodations to a student with a hearing impairment. The medical school said it already had provided adequate education alternatives to the student.
In 2011, the American Cancer Society agreed to make its website available to people with visual and other impairments under a settlement with the American Council of the Blind. The council said the ACS was not making electronic informational materials, such as documents and brochures, available to people with disabilities.
In another case, the University of California, San Francisco Medical Center in 2006 agreed to improve the disability accessibility of its website under a settlement with San Francisco disability rights activist August Longo.
Paying closer attention to the requirements of the ADA and other access rules will help doctors avoid such violations and lawsuits, said Joseph R. Fields Jr., an ADA-defense attorney based in Florida. Taking proactive steps when implementing EHRs and other computerized systems will save physicians significant time and expense later, legal experts say.
“The electronic battleground is just starting,” Fields said. “Professional plaintiffs out there looking for bricks and mortar [violations] are running out of properties to sue. Businesses that are open to the public that have a website” or electronic resources must make them ADA-compliant.
Understanding the law
Under Title I of the ADA, employers must provide reasonable accommodations to disabled employees, including meeting their software and computer needs. That includes public entities and private businesses with more than 15 employees.
Medical practices and health centers must ensure that their public websites are accessible under the law's Title II and Title III, which cover practices' programs and services. There is no business size limitation to this provision.
“Unless it is closed to the public, it must comply with the ADA,” Fields said. “If you own a one-person hot dog stand that's open to the public, it has to be ADA-compliant.”
The ADA does not allow for punitive damages, but some states have separate accessibility laws that do. Attorneys general and state agencies also can sue for fines if violations are discovered.
Although the ADA is not clear about the extent to which websites and other technology must be accessible, that has not stopped lawsuits by disabled consumers. For example, in 2008, retail giant Target settled a lawsuit with the National Federation of the Blind for $6 million after a customer claimed that the store's website did not work with screen-reading software. The retailer admitted no wrongdoing. Legal observers say the landmark lawsuit opened the door for other plaintiffs to sue companies for noncompliant websites.
Health professionals who accept Medicaid and Medicare also are required under the federal Rehabilitation Act to provide accessible services to disabled patients.
Theoretically, that provision could be used “to sue a Medicare/Medicaid practitioner who refuses to provide accommodations to a person's disabilities,” Fields said. “So under that scenario, the health care professional could get it from two different directions.”
The Web Content Accessibility Guidelines provide a more detailed road map for making electronic tools available to impaired patients. The guidelines are part of a series of Web accessibility guidelines published by the World Wide Web Consortium, an international community that develops Web standards. The rules explain text alternatives and how general content can be changed to other forms, such as large print, Braille, speech, symbols or simpler language. In August 2012, the Dept. of Health and Human Services adopted the guidelines as the standard for meaningful use criteria for patients to view and download their health information.
Because the ADA lacks clarity on Web accessibility, the Dept. of Justice is working on new regulations on accessible Web-based information. The new rules are expected in 2013.
In the meantime, health professionals should not delay implementing systems that support the needs of impaired patients, said Lainey Feingold, a California disability rights attorney who works on technology and information access issues.
The Justice Dept. rules “will be helpful, but the law already requires websites to be accessible,” she said. “It's really important that the medical community doesn't wait.”
Making electronic tools useful
Any e-resource available to patients or employees must be available to people with disabilities, whether they are paying a bill online, scheduling an appointment on the Internet or listening to a webcast, said Robin A. Jones, director of the Great Lakes ADA Center, a federally funded technology assistance center in Chicago.
For people who are blind, that could mean making sure information interacts with an audio screen reader, she said. For the hearing-impaired or those with low mobility, it could mean making sure videos include captioning.
“Being able to navigate within a website becomes a huge barrier,” Jones said. “I can get to your home page and read your home page, but because you use images for all your tabs and you didn't label those tabs, I, as a [blind] person,” can't use the website.
Physicians and staff members cannot simply ask disabled patients to call them to read electronic information or request that they bring an interpreter to an office visit, said Christopher S. Danielsen, an attorney and director of public relations for the National Federation of the Blind.
“That's not acceptable,” he said. “It is the medical provider's job to accommodate the patient with a disability.”
Making EHRs accessible to staff is another consideration for physician practices.
“Employees need to be able to access the records,” Danielsen said. Health professionals must “acquire accessible software. If they don't, obviously their employee is not going to be able to do his or her job. That would be a violation of the ADA.”
The difficulty of making EHRs disability-accessible depends on the platform of each EHR, said Lauren Zack, director of user experience for athenahealth, which provides physician billing, practice management and EHR services. Accommodations for low-vision users include the design of alternative text, screen contrast and layout.
“We are paying particular attention to creating solutions that incorporate new technologies, such as speech recognition, to enable and support our users,” Zack said in an email. “We are focused on designing with use of clear, simple language for labels and on-screen assistance, which will enable unambiguous and accessible guidance.”
Technology access expert Gregg Vanderheiden said implementing accessible software is not significantly expensive if physicians include it at the start of their EHR process.
“Begin by asking EHR providers if their materials are accessible,” said Vanderheiden, a professor in the Industrial and Systems Engineering and Biomedical Engineering Depts. at the University of Wisconsin-Madison. “If you ask for something to be accessible when you first fit it, then the accessibility will be something they address, because they want to win the bid, and it won't cost very much. If you do your bid and then later need to make it accessible, the [inclusion] will be enormously expensive.”
Where to start accessibility efforts
Feingold suggests that medical practices conduct self-audits of electronic equipment and software to get an idea of what they need or might be missing. Contacting an ADA consultant also helps, Fields added.
“There are plenty of organizations out there that will do audits of the premises,” he said. “It's not that expensive — a couple hundred bucks. You're buying yourself insurance.”
Physicians should discuss with vendors how they plan to make EHRs or other e-tools accessible and ensure that such work is part of the implementation plan, Taylor said. They should not rely on the vendor to bring up the subject, she said.
After accessible software is in place, Danielsen suggests having a disabled person test the format to ensure that it works properly. Making sure medical technology is available to all patients and employees is not difficult, he adds, but it takes consideration and thoughtful planning.
“Listen to your patients. Understand the needs of your patients,” Danielsen said. “Not just the medical needs, but what they need to get the information that you have to offer and to interact with your office efficiently. Making sure accessible technology is used is in everybody's best interest.”