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Electronic Health Records Accessibility

As part of 45 CFR Part 170 the U.S. Department of Health and Human Services (“HHS”) maintains a specification for certified Electronic Health Record (EHR) technology. In late 2012, the HHS published any updated set of certification criteria for the 2014 EHR certification standards covering electronic medical records.

Under 45 CFR 170.204 these standards adopt, by reference the accessibility requirements of the Web Content Accessibility Guidelines (WCAG) 2.0, Level A. These guidelines apply to any EHR components that allow patients to “View, download, and transmit to 3rd party” as defined under 47 CFR 170.314(e)(1). Broadly the WCAG standards apply to “information that is viewable to the patient or their authorized representative through the capabilities EHR technology includes that would enable them to electronically view, download, and transmit their health information to a 3rd party.” In general, SSB recommends organizations adopt a conservative view of these requirement and assume that all components of consumer facing applications EHR applications should be accessible to users with disabilities pursuant to the WCAG A requirements.

Organizations should note that the 2014 certification requirements define WCAG A compliance which is generally the minimum level of accessibility needed to access specific information. HHS contemplated requiring a higher level of compliance with the requirements as part of the Notice of Proposed Rulemaking (NPRM) associated with the health records. In the rulemaking overview associated with the final rule HHS “decided to require Level A conformance instead of Level AA.” As some commenters noted starting at Level A will provide a baseline from an accessibility perspective and one on which we can build in future rulemakings. Accordingly, we would like to express our intention to propose requiring Level AA in our next rulemaking cycle and encourage EHR technology developers to take the steps necessary to be on a path towards Level AA conformance.” Based on this guidance SSB strongly recommends that organizations assume that future rulemaking activities will require conformance with the broader set of requirements defined under WCAG 2.0 AA.

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