Excerpted From: Meighan Parker, Come As You Are?: Democratizing Healthcare Through Black Church-Telehealth Initiatives, 25 Columbia Science and Technology Law Review 108 (Fall, 2023) (261 Footnotes) (Full Document


MeighanParker.jpegTelehealth is disrupting and transforming the American healthcare system. Scholars suggest that telehealth can reduce health disparities by addressing obstacles to healthcare access, such as a lack of public transportation or shortage of healthcare professionals. These changes--this democratization of healthcare--are welcome. At the same time, however, this transformation threatens to leave some communities behind. Telehealth is not a one-size-fits-all solution to limited healthcare access. To truly democratize healthcare via telehealth, we must confront the challenges of bringing telehealth to people of diverse races, ethnicities, cultures, and socioeconomic backgrounds.

Telehealth's ability to provide quality care for Black communities effectively requires legal reforms that take account of what public health scholars call the “social determinants of health.” These determinants of health include medical mistrust and the digital divide. Medical mistrust is defined as “distrust of health care providers, the health care system, medical treatments, and the government as a steward of public health.” Medical mistrust is not only the converse of trust but is “more negative than the absence of trust” as it entails the “belief that the entity that is the object of mistrust is acting against one's best interest or well-being.” Researchers have found that compared to non-Hispanic white participants, non-Hispanic Black participants were 73% more likely to report mistrust in health professionals. Medical mistrust may impact telehealth accessibility and related health outcomes. Patients who do not trust health professionals may underutilize healthcare services, not adhere to suggested medication regimens, and have a lower quality of life.

Beyond medical mistrust, the digital divide, which refers to disparate computer and/or internet access across different demographics, is another determinant of health that create challenges to scaling up telehealth in Black communities. A University of Houston College of Medicine study showed that Black and Latinx patients were 35% less likely to use telehealth than white people. These results were attributed to the digital divide. The digital divide presents two obstacles to telehealth democratization: (1) racial minorities, lower-income individuals, and seniors are more likely to lack broadband access or the requisite equipment for a virtual appointment; and (2) low digital literacy generally makes it difficult to navigate online platforms to receive telehealth-care.

Drawing from the concept “come as you are,” which is frequently used in Black Churches to encourage and welcome people to church spaces, irrespective of their various social and economic dispositions for spiritual restoration and healing, I focus on Black communities in this Article and introduce two models for Black Church-Telehealth Initiatives as examples of how technology and community partnerships can help address certain determinants of health and democratize healthcare via telehealth. These examples provide a new way forward, building on assets, both cultural and physical, that already exist in the Black community.

Although Black Church-Telehealth Initiatives may take many different forms, this Article offers two models. The first model (“the Telehealth Clinic”) would aim to mitigate the impact of medical mistrust and to expand access to primary care and mental healthcare. The Telehealth Clinic would have three unique features: (1) a partnership between a Black Church and a local health system or clinic to establish a community-based telehealth clinic; (2) use of non-medical technology and any necessary Food and Drug Administration (“FDA”)-cleared or approved telehealth equipment (e.g., tele-stethoscope or other appropriate devices for primary care delivery) to facilitate virtual appointments with a remotely located physician, who is affiliated with the health system or clinic partner; and (3) assistance of medical personnel, qualified under applicable federal or state standards, to help patients connect to their providers. Moreover, the Telehealth Clinic would likely be in a space on the Church's property and leased to the healthcare provider.

A similar model has been established at a Black Church: in 2021, Atrium Health, a top-ranked health system based in North Carolina, developed a virtual clinic at Mt. Calvary Baptist Church's Community Life Center in Shelby, North Carolina. Mt. Calvary Baptist Church is a predominantly Black religious institution led by a Black pastor. According to Dr. Patty Grinton, medical director for Atrium Health's community-based care initiative, “Community Based Virtual Care allows our community members to access medical care within their rhythm of life. We are breaking down those barriers by meeting people where they are - in their community ....” Meeting people where they are--so that they can come to healthcare spaces as they are-- is key to democratizing healthcare.

This Article's Telehealth Clinic would go even further than Atrium Health's community-based clinic. First, the Telehealth Clinic would provide mental healthcare in addition to primary and specialized care. As discussed below, this Article advocates for the Church staff's involvement with the Telehealth Clinic's promotion as well as administrative activities, such as front desk responsibilities. The Telehealth Clinic would aim to engender more trust in the quality of care, healthcare professionals, and the health system more broadly by the direct involvement of Church staff with the provision of healthcare.

The second model for Black Church-Telehealth Initiatives (“the Designated Telehealth Space”) would be a more modest program designed to address the impact of the digital divide in some Black communities. As demonstrated in Part IV.B, the legal barriers to establishing partnerships between Black Churches and healthcare institutions to form a Telehealth Clinic may be too significant to overcome. If so, Churches may opt to host a Designated Telehealth Space and still leverage the Church's important role in healthcare promotion. Under this model, a Black Church would provide a Designated Telehealth Space for telehealth encounters. At the Designated Telehealth Space, community members may use non-medical technology, such as computers equipped with video-conferencing software and the Church's internet connection. The Church would not be directly involved in the provision of medical care; however, a Church administrator may be staffed to provide technical support to the Designated Telehealth Space's users. Administrative support may further expand access to telehealth by helping those with limited digital literacy connect to remote providers.

But some laws and policies impede these types of novel programs. In this Article, I analyze certain legal barriers to the democratization of healthcare through Black Church-Telehealth Initiatives.

It is important to note that the root cause of medical mistrust is systemic racism and discrimination within the healthcare system. These Black Church-Telehealth Initiatives are not a perfect solution to healthcare access disparities stemming from medical mistrust and the digital divide. Legal reform must primarily target diminishing the barriers to Black Church and healthcare institution partnerships and must address the root causes of medical mistrust in the healthcare system. At the same time, healthcare partnerships with trusted institutions, like Black Churches, should integrate community leaders in telehealth delivery and build trust with the surrounding community.

Focusing on these two models, this Article proceeds in three parts. Part II describes the history of medical mistrust in the Black community as well as its effect on health outcomes. Part III describes the rise in telehealth use and provides a brief historical account of Black Churches and their roles in Black communities. Black Churches may help mitigate medical mistrust because Black Churches historically have been the bedrock of many Black communities through the provision of religious services as well as programming related to education, job training, and so much more. Moreover, Black Churches are already important locations for providing healthcare and can help further democratize healthcare via telehealth, if certain legal barriers can be resolved.

Part IV.A briefly evaluates some substantial legal barriers to telehealth in general. Variation in state laws related to physician licensure requirements is a barrier to telehealth expansion. Because physicians generally must be licensed in each state where their patients are located, remote physicians must often complete burdensome application processes to obtain licensure in several states. Moreover, many states are relaxing the legal requirement for an in-person visit before a doctor-patient relationship can be established, allowing such relationships to be established via telehealth.

Part IV.B then evaluates legal hurdles and unresolved questions that are specific to providing telehealth at Black Churches. Because Black Churches are often trusted institutions, telehealth partnerships may be strengthened through integration of the Church's leaders and staff in the daily activities of the Telehealth Clinic. It is the trust in those individuals that may give more credence to the care delivered at the virtual clinic. But that very involvement may open the Church up to tort liability, under the apparent or ostensible agency doctrine, for the negligent acts of remote physicians. Furthermore, depending on the scope of the Church's involvement, health privacy and confidentiality risks may abound under both models. For example, the Church (as a “business associate” for the healthcare provider at the Telehealth Clinic) may fall under the purview of the Health Insurance Portability Accountability Act of 1996 (“HIPAA”). This Part also explores legal concerns that may arise when a healthcare partner's or the Church's religious doctrine places limits on the healthcare the Church may provide. Lastly, federal healthcare reimbursement limitations may prevent patients from using Designated Telehealth Spaces to meet with providers or discourage healthcare providers from establishing Telehealth Clinics.

“[J]ustice too long delayed is justice denied.” Reparations to Black Americans have been delayed and denied, but current reparation efforts-- including lawsuits seeking reparations--may finally begin the process to provide a measure of justice for past wrongs committed against Black Americans. Reparations are, in part, a program of redress for a “grievous injustice.” The grievous injustices against Black Americans include generations of enslavement and racial oppression.

Recent reparations lawsuits, such as the 2005 African-American Slave Descendants Litigation lawsuit, are an attempt to redress these injustices. The African-American plaintiffs alleged that slavery-connected companies engaged in past tortious conduct against the plaintiffs' slave ancestors, thus causing the plaintiffs as slave descendants to suffer current harm. But the lawsuit failed because the lower court ruled in part that the African-American plaintiffs lacked Article III standing. On appeal, the appellate court agreed that the African-American plaintiffs lacked Article III standing, declaring it was “impossible” to connect the past conduct of the defendants (various banks, insurance companies, and other private companies or their successors who profited from the slave trade and slavery) with the present financial and emotional harms of the plaintiffs (descendants of their enslavedBlackAmerican ancestors).

Admittedly, reparation plaintiffs seeking redress through the courts walk a difficult path because history shows the courts have often been a barrier to racial justice. Court-based redress is possible, though. For example, in 1878, a white jury in federal court awarded $2,500 in compensation to BlackAmerican plaintiff Henrietta Wood in her lawsuit against Zebulon Ward, a white man who had kidnapped and enslaved Wood decades prior to the jury verdict. Henrietta Wood had been sold as an enslaved person to William Cirode, but Mr. Cirode's wife, Jane Cirode, later moved to the free state of Ohio and registered Wood as a free person in 1848. But Mr. Cirode's daughter and son-in-law disagreed and connived with Zebulon Ward, a deputy sheriff, to kidnap Wood to re-enslave her, which Ward did working with “slave catchers” in 1853. Many years later, after regaining her freedom, she filed her lawsuit in 1871. Seven years later, in 1878, the jury found for Wood and compensated her for the kidnapping and re-enslavement.

Henrietta Wood's example reveals that courts can be an avenue for racial redress. Like Wood, present-day reparation plaintiffs, descendants of their BlackAmerican ancestors, can also seek redress through the courts. Recent epigenetic research can support their reparations-through-litigation effort. Researchers have identified four main mechanisms for the transfer of transgenerational trauma: (a) socialization or sociocultural, (b) psychodynamic relational, (c) family systems, and (d) genetic or biological.

This article explains how recent research on epigenetics (i.e., how environmental stimuli modify the expression of individual genes without changing the DNA itself as a pathway for transgenerational harm can aid federal reparation plaintiffs in meeting the Article III standing requirement at the pleading stage, thus making possible what the appellate court in African-American deemed “impossible.” Further, this article addresses the genetic or biological mechanism involving epigenetics to explicate how plaintiffs can file a tort lawsuit alleging present-day harm that has persisted across generations through epigenetic alterations. Section II below explains how new research on transgenerational harm through epigenetics is relevant to reparation lawsuits by helping bridge the divide between the defendants' past acts and the reparation plaintiffs' present harms. Section III delves deeper into how present-day federal reparation plaintiffs can use research on transgenerational harm through epigenetics to satisfy the constitutional threshold Article III standing requirement.

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Healthcare is quickly evolving, and telehealth is becoming an integral part of how our system delivers care. However, telehealth will not automatically help address health disparities in access to care or improve health outcomes. Therefore, with intentional community partnerships and programming, telehealth must account for the various determinants of health that obstruct access and weaken participation of marginalized and underserved communities.

Community partnerships like Black Church-Telehealth Initiatives have the potential to expand access to care. But, as this Article illustrates, legal barriers stand in the way, making it difficult to democratize healthcare through telehealth. State legal divergence and the impact of complex healthcare federalism principles on certain aspects of telehealth regulation create obstacles for widespread telehealth utilization.

As healthcare organizations partner with community organizations to expand access to telehealth, creative legal solutions will be required to subject those community organizations to important laws and policies including privacy and confidentiality laws without stifling innovation and collaboration. Broader trends towards increasing alignment of healthcare with religious organizations continue to highlight unresolved legal questions on the role of religious doctrine in the healthcare marketplace.

Lastly, underneath it all is the age-old, American debate about whether healthcare should be a privilege or a right. Who is eligible under either view? Moving forward, well-resourced, major health systems should collaborate with community stakeholders, such as Black Churches, and incorporate other measures to remedy historic failures like medical experimentation and contemporary challenges such as the digital divide and medical mistrust. The extent to which the healthcare system must identify and implement effective strategies to address these factors is based on deeply held ideologies regarding these opposing views of healthcare being a privilege or a right and beliefs about who can be left behind by inadequate programs and legal structures. Telehealth provides us with an opportunity to rebrand and transform the healthcare system's insufficient response to this debate to move towards establishing healthcare as a right for all. Courts have the opportunity to be a part of the reparations efforts to provide redress to Black Americans. During the enslavement period, the Dred Scott Court supported and strengthened slavery. During the post-enslavementJimCrow period, the Plessy Court supported and strengthened racial segregation. The current period could be the era of reparations based on advances in epigenetics research allowing reparation plaintiffs to plead reparation allegations that satisfy Article III's standing requirement. Allowing reparation lawsuits to proceed beyond the threshold standing requirement is a move away from justice denied to justice delivered for Black Americans.

Harry A. Bigelow Teaching Fellow, Lecturer in Law, The University of Chicago Law School; Juris Doctor, The University of Alabama School of Law; Master of Theological Studies, Harvard Divinity School; Bachelor of Science, Spelman College. Professor Chin teaches Race and the Law and other courses at Lewis & Clark Law School.