By Craig Konnoth, JD, M.Phil., Wendy Netter Epstein, JD, and Max Helveston, JD
Despite upping the stakes of America’s partisan divide, the pandemic has prompted bipartisan support for at least one cause — the rapid rollout of telehealth, which allows people to see their doctors by videoconference or telephone.
In last week’s executive order, the Trump Administration reaffirmed its commitment to the use of telehealth. While telehealth may be, in many ways, a panacea for access to healthcare, particularly in COVID times, we should be concerned that patients of color may be left behind.
After moving at a snail’s pace for a decade, due to reluctance from insurance payers and medical providers, the pandemic provided the spark telehealth needed to take off. Now, the federal government has taken steps to ensure that Medicare and Medicaid will pay for telehealth visits, and all fifty states and Washington, D.C. have followed its lead. Private insurers have done the same, either voluntarily or because state governments have required coverage during the pandemic.
Support from both parties likely means that telehealth is here to stay. The HEALTH Act, introduced in June, would permanently expand Medicare telehealth benefits. In a June letter to the Senate Majority and Minority leaders, thirty Senators from both sides of the aisle implored Congress to “expand access to telehealth services on a permanent basis.” And another bill titled “Protecting Access to 4 Post-COVID–19 Telehealth Act of 2020” was introduced later in the summer.
Individuals seem to be embracing telehealth. Consumer studies have shown a drastic increase in the number of individuals who report having access to remote care. And the majority of people who have used telehealth services have reported high satisfaction with the experience.
As legal scholars who study health policy and health inequities, we are excited about the idea that people of color — who experience greater health burdens, but less healthcare access — could perhaps gain the most from telehealth expansion. Black Americans are more likely to have multiple chronic illnesses than white Americans and have lower life expectancy. And now, Black Americans have contracted COVID-19 at three times the rate as white Americans, and are substantially more likely to die from it — in some places, by a factor of five to seven times. These realities are in part a function of longstanding and deep systemic inequalities. Thanks to historical segregation and housing policies, Black people are substantially more likely to live in areas with limited access to primary care physicians and specialists, and where the quality of health care that is available is low.
And yet there are reasons to question whether telehealth actually will live up to its promise to even the playing field. Pre-pandemic data suggests that community health centers, which disproportionately serve Black and Latino populations, are less likely to have telehealth practices. Many have reported difficulty rolling out telehealth. Black Americans may also have more difficulty using telehealth technology because of less access to a stable internet connection, lower rates of smartphone adoption, and less digital literacy. Early studies have found that Blacks are substantially less likely to use online healthcare portals than whites. And patient surveys have shown Blacks to be less satisfied with their telehealth experiences than their white peers and more likely to express concerns about confidentiality, privacy, and the physical absence of the healthcare provider — concerns justified given the historic violations the community has experienced through the healthcare system.
How can this be avoided? Instead of reflexively forging ahead and ignoring the effect of widespread telehealth adoption on existing inequities, Congress and the administration should ensure that vulnerable communities in particular can access these new services. This will require significant technology investment in community health centers, training programs for communities of color, and distribution of technology such as smartphones or tablets within these communities. Certain cities, like San Francisco and New York, have adopted these programs to good effect. As of now, no legislation incorporates these measures.
The COVID-19 response has been replete with examples where assistance for vulnerable individuals has left Blacks behind. As renowned critical race theorist John Powell has explained, just because a benefit is made available, does not mean that everyone will be able to access it no matter the position from where they start. The solution is to change the background circumstances that disproportionately affect certain groups, so they too can share in society’s benefits. A health system that makes things better for those who are already well protected, but disregards the vulnerable, is no healthcare system at all.
Craig Konnoth is a law professor at the University of Colorado Law School and Faculty Director of the Health Data & Technology Initiative at the Silicon Flatirons Center. Wendy Netter Epstein is a law professor at the DePaul University College of Law and Faculty Director of the Jaharis Health Law Institute. Max Helveston is a law professor at the DePaul University College of Law and Associate Dean of Academic Affairs & Strategic Initiatives.
