AHLA's Speaking of Health Law

Digital Health Equity: Narrowing the Digital Divide by Ensuring a Fair, Equitable, and Just Opportunity to Access Digital Health

July 12, 2022 AHLA Podcasts
AHLA's Speaking of Health Law
Digital Health Equity: Narrowing the Digital Divide by Ensuring a Fair, Equitable, and Just Opportunity to Access Digital Health
Show Notes Transcript

Harvey Tettlebaum, Partner, Husch Blackwell LLP, speaks with Priya Bathija, Vice President of Strategic Initiatives, American Hospital Association, and Sarah Swank, Counsel, Nixon Peabody LLP, about the concept of digital health equity and its legal implications. They discuss digital health equity as a social determinant of health, examples of barriers to digital health equity, the legal opportunities and pitfalls of expanding digital health equity, and the role of health lawyers in the debate over digital health equity. Priya and Sarah authored an article for AHLA’s special edition of the Journal of Health and Life Sciences Law dedicated to “Emerging Issues in Health Equity in the United States: Legal, Legislative, and Policy Perspectives.”

To learn more about AHLA and the educational resources available to the health law community, visit americanhealthlaw.org.

Speaker 1:

This episode of ALA , speaking of health law is brought to you by HLA members and donors like you for more information, visit American health law.org .

Speaker 2:

So we are doing a podcast on , uh, which derives from the journal of health and life sciences law, special edition that we , uh , published just a , uh , few weeks ago , uh , for American health law association. And , uh , I'm Harvey TBA . I'm one of the co-editors , uh , we have two wonderful speakers who are going to talk on the topic about which they wrote, which is in the journal. And we certainly hope that you take a look at the, and read the entire article, but this will give you a good highlight of what was in the article and , uh , get you into it. Our, our , um , the two folks we have today are PREA Bethe and Sarah Swank and Pilla is vice president of strategic initiatives at the American hospital association, where she leads the American hospital Association's effort in that regard, the value initiative, which guides hospitals, as they promote value and affordability. She also leads the organization's work on maternal and childcare , the societal factors that influence health and as a member of the American hospital Association's health equity strategies team pre is also an adjunct professor at the lo Loyola university, Chicago school of law, where she teaches healthcare payment and policy. Sarah Swank is a healthcare attorney in the Washington DC office of Nixon Peabody, providing advice to hospitals, healthcare providers, telehealth, startups , and associations regarding regulatory and health policy issues. Sarah advised some of the first ACOs and telehealth programs in the country and continues that work supporting clients with additional focus on innovative approaches to value based care, health equity , uh, uh, AI clinical research, remote patient monitoring, and other market disruption solutions. So let's get into the topic at hand here, which is , uh , health equity with digital health and , uh , Prya . Could you kind of get us into this by telling us what is digital health equity

Speaker 3:

Mm-hmm <affirmative> health equity . Sure . Harvey, and thank you so much for having us today and for that introduction. Um, I think the best place to start when thinking about digital health equity is by understanding what health equity is. Um, and health equity has been defined as the attainment of the highest level of health for all people. Um, or you could also describe it as the situation in which everyone has a fair and just opportunity to be as healthy as possible. Um, so then when you look at this in the context of digital health equity, it's the fair and just opportunity to engage with digital health tools , um, that can support good health outcomes. Um, so this includes access to technology that's needed to use mobile health apps, patient portals, and telemedicine, and it also includes digital health literacy, which is the ability to , um, obtain process and understand digital services and information. Sarah, do you have additional thoughts to add?

Speaker 4:

I agree with you Priya . I think , um, when you look at health equity , uh , digital health equity, you need to look at health equity as well. And , um , it, it reminds me of going back to when telemedicine and telehealth were new and those were new definitions. A lot of times the industry was ahead of where the government was in , in defining , uh , the , those technologies. And ultimately it got, it was tied to a government definition around reimbursement, and we've seen those , uh , definitions evolve over time. And I think the same with health equity as, as well. Um , you know, the government now is looking to define health equity. Uh , if you look at the executive order that came under out of the Biden administration , um, they look to defining terms such as health equity and underserved communities and looking for, for example, the consistent and systematic fair , just an impartial treatment of, of all individuals. And what's interesting about that definition is that this definition is being tested under the ACO reach model through the CMS innovation center, which is a payment , uh , reform and value based , uh , test. And so it'll be interesting to see what happens with this definition and , and how it's, how it's measured going into the future.

Speaker 3:

Yeah. And Sarah , I'll just add, because your comments made me think of this. Um, a lot of times people are referring to sort of digital health equity as a social determinant of health or a super determinant of health. Um, and I think it is important to acknowledge that, you know, both digital health literacy and access to technology are societal factors that influence the health of individuals and communities. Um, and aha has set forth a framework that explains how these societal factors of health can be addressed at the individual community and systemic levels. Um, so when we're defining or looking at digital health equity, I think it's important to understand that there's a play at all three of those levels. Um, and we need to look at how we can address this as a social need so that we're improving access and literacy for individual patients. Um, we also have to look at how we can address it at the community level as a social determinant of health. And then we need to look at the underlying or systemic issues , um , that need to be addressed to really improve outcomes in the long term . Um, so I think it's helpful to put it in those three levels too, as we think through what digital health equity actually is.

Speaker 4:

Yeah. I think that's great because to piggyback off of that, when you think of social determinants of how , and we think about food insecurities, we think about housing and we're, and we're seeing more and more , uh , people trying to address those, those issues that are societal issues, that impact , um , health and the acknowledgement that that healthcare is now that's , uh , so , um , consistent with just not just like bricks and mortar healthcare , like going to an office or going into a hospital, but also that part of your care is now virtual. And you know, what we see in our, our clients and we're seeing across the industry is that that's happening in all parts of healthcare . That it's not just , um, it's not just going into an office, but there's a virtual component to care now. And if we don't , um, start addressing these issues, we may be leaving whole groups of people behind , uh, that will not have the same access to care as others. And , and that's where the equity part comes in.

Speaker 2:

So, Sarah , um , we're having this conversation now and , uh , what do you see sort of on the horizon at this point, because as you pointed out and is pre-app appoint out , uh , these definitions are changing and most importantly, the entities that are changing them are the entities that pay for the care. And so , uh , could you comment on that?

Speaker 4:

Yeah, I think there's a couple things. One is to look, you know, CMS just put out their 10 year health equity plan. And if you think about it, CMS is one of the biggest, if not the biggest insurer in the United States and putting out these the five pillars and , you know, just to , to give a sneak preview of that, you know , one of the pillars is , is really around access, you know, how can people access care? And it's sometimes it's hard to, you know, we talk about, you know, disparities and equity and underserved communities and social determinants and health, and these are, are really important terms and they can sound sometimes really academic and , and so it's nice to give, give examples of like, what does that really mean? Like where do we think that this may actually come to pass? And so I like to use the example of , for example, somebody coming into the emergency room and they could have a barrier because they use a different pronoun than what their care provider gave them. And that could create a barrier. It could be their race, it could be their gender. It could be that they're in a rural community. And if somebody comes into an ER with a heart attack, shouldn't their outcomes be the same shouldn't they be able to leave that hospital with the same outcomes, the same services wrapped around them , and shouldn't, they ha be treated in a way that's fair, just and impartial, which is the definition coming out of the outta CMS. And so that to me is, is where we may be headed with payment. So if you're responsible for a population of people, not just responsible for that ER visit, but for a population of people and you get paid, for example, on the capitated basis, it will be important to reach those people. And, and CMS has said, if you look at , for example, the ACO reach program, I was talking about where they're gonna test this, where , where reach the Ian reach is equity. You know, the idea would be, well , you can't lemon drop and cherry pick. So the fruit salad is you can't drop the people that are gonna cost a lot are gonna be difficult in your mind to care for them . And you can't just pick the ones that you think are good. And so that means caring for everybody. And if we have more information around and more data that , and more ways to track this through quality and other initiatives, this only not only becomes, you know , a quality issue, but it will also land into compliance and also maybe not being paid for the services that you're providing.

Speaker 3:

Yeah. And Sarah , I agree with everything that you said and, and kind of just wanna take it up one level outside of just payment models and looking at the payment scheme. But if we just think about all the changes we saw in the pandemic and how we saw this incredible shift to using digital solutions, whether that was a mobile app or patient portal or telehealth to reach people, to give them the healthcare that they need , um, it became a critical access point. Um , and so when we think about digital health equity, if individuals don't have access to that technology, we know that that could have , um , significant health consequences. So, you know, the FCC has so much data that shows that areas that have lower broadband connectivity, which is a key access to this technology. Those residents have higher rates of obesity, diabetes, and unnecessary hospitalizations. Um , and this lack of technology isn't just directly coming through in the healthcare field, it's also influencing , um , other factors that can impact our health. So the ability to apply for employment or housing or other assistance programs , um, all areas of our lives are so tied to technology and digital solutions. Um, and we saw that increase everywhere during the pandemic, right? So now that those that don't have access to technology or broadband or digital literacy, they're not gonna have the same access to food or education or economic stability, or the ability to socialize and engage with others in their community. Um, so as we move into the future, like now is really the time where we need to figure this all out from a health equity and a digital health equity perspective, because it's going to become more and more important to how individuals live their lives and how healthy they can be.

Speaker 4:

Um, you know, Preya one of the things I think also that's really important that you , you , you said it is , you know, this , this expansion of telehealth , the expansion of digital health . I mean, what if we thought about where we started before the pandemic and where reimbursement was? I mean, we're talking about some rural hospitals and where the patients at was maybe in a hospital, you know, not at home. Um , so just the idea that, that the technology could expand to different care settings and another thing just to go back and think about it. I know it feels like history and it's only been a couple years, but the idea that per provider types that could provide telehealth services was so expanded. Um, there was , uh , the idea that nurses and , um, therapists and psychiatrists and , and , and , and others could provide services. And we really have seen that with mental health, you know, the idea of this , the twin pandemic of mental health and how that's really changed , um, the face of care for those types of services and behavioral health services and addiction services. And , and, and yet there's those that don't have access. And so again, we go back to that , um, I think, you know, another thing is just looking at where , where reimbursement is headed, you know, Harvey, you asked , like , where are we headed with this? I mean, some things to think about is that , that now you can be a reimbursement, not only for telehealth, but also virtual visits, like check ins with your doctors that you didn't have before , uh , remote patient monitoring, and now remote patient therapeutic , um, codes, which will just give like a lot of data at the fingertips of doctors , um, that could be, you know, really expand access , um , as , as well, to be able to have like real time data. This is really amazing cutting edge , uh , technology, but yet if you don't have a device or you don't have to use a device, or you don't have broadband, then that data is not gonna be there for your own care. And also, I like to comment on this too, which is it won't be there for clinical research or, or into the EHRs, which we're applying AI on to, to try to figure out like care models. And so just the lack of that data for , um , underserved communities into those kind of places is gonna change evidence based medicine and how we treat people and it's gonna change, you know, and , and we can , where we can get this type of information into databases to about everybody. Then I think we can really, that's where the change will be. So digital health equities is not even just about the , having the device and knowing how to use it, but it is almost like a , um , flipping healthcare on , on its path , ultimately.

Speaker 2:

So Priya , what do you see as some of the barriers to face , uh , related to digital solutions that Sarah's been talking about?

Speaker 3:

Yeah, so I think the thing that most people jump to when they think of barriers here is broadband access and, and that's a really real barrier. Um, at the end of 2019, the FCC estimated that 14.5 million Americans lack access to fix broadband service at threshold speeds. Um, and then if you look at those that don't have broadband at the speeds needed to actually support these digital solutions, that number is even higher. Um, and it's not just broadband infrastructure. Um, even in places that may have infrastructure available, there are many of Americans, many millions of families that can't afford it. So right now, according to the us census bureau , um , 13.9% of urban households and 19.2% of rural households don't have a broadband subscription. So broadband is a significant barrier. Um, we also know that outside of broadband, another barrier is access to the technology needed to operate digital solutions. So many individuals still don't have smartphones, which I <laugh> seems unreal to me. Um, but 40% of Medicare beneficiaries, for example, don't have a smartphone and a wireless data plan. So without that technology , um, they're not able to take advantage of these solutions. Um, and then the last barrier I wanna address is one that we talk about less frequently, but it's equally as important and that's digital health literacy , um, or the ability to use process and understand technology. Um, so if you think about most digital health solutions that are available, most of them are only in English. So those that can't speak English, can't use those solutions , um, in another way to look at it, they're also often written at high reading levels. So individuals who are not literate or at a higher level of literacy, aren't going to be able to use them as well. Um, there are also many cultural barriers , um, or a lack of training and knowledge that can lead to discomfort when using these digital solutions that can stand in the way. Um, but we have seen a lot of hospitals develop workarounds to address each of these and actually improve access, which has been really promising. Sarah . I don't know if you have anything to add on , on the barriers.

Speaker 4:

Yeah, I agree with you. I think , uh , when we look at the idea of, we used to talk about cultural competency and cultural navigation, and that was, you know , going out into communities, understanding culturally, how people access or think about their own healthcare as individuals. And what we need to do right now is to think about that in a , in a digital way, in a way that, how do people access or think about digital care? It could be that digital care opens up more access. Maybe people feel more comfortable, you know, on a telehealth visit, for example, than going into an office. Or it may be that there are , um , barriers like you talked about, or , or it just could be an uncomfortableness with technology. Like not maybe it's literacy, or maybe it's just, I don't feel comfortable talking to my clinician, you know, sharing into my laptop. I'd prefer to be silly with them . I'd say one of the, one of the areas that I think CMS acknowledged that there are times when people will not use a help a telehealth visit or would have trouble because of broadband or , or , or digital literacy is the idea of having a telephonic visit. So that, there's the idea that digital may not just be , um, seeing a video on the screen or , uh , talking to somebody in that way, but that there are gonna be times where people, our internet drops out, maybe we're having technical difficulties, like could be on a podcast, could be on a zoom call, could be on your telehealth visit. And so that there will be a need to have backup ways to, to , to have care , um , even in a digital world.

Speaker 2:

So there's one barrier that you all have not discussed and that's payment. Cause it seems to me that what we're really talking about, cuz after all, it's always about the money. And so when the government or other third party payers decide they wanna limit the quantity , uh , for example , uh , how do you all see that coming down?

Speaker 4:

Yeah. I mean, I think one thing to think about, I mean, one example would be with addictive addiction services and, and you know, one of the other crisis we have going on, which is the opioid crisis, which, you know, I don't believe has gotten any better since the pandemic and in fact likely has gotten much worse. And so when we think about that, there's some really great access that happened, which was the idea that you didn't have to drive into an office necessarily , um, where you used to have to have an in person visit, you know, as part of your treatment and some of that changed. Um, but if we look at, say, for example, somebody who would like to do a lot of their visits virtually that may not work by payer, by payer , state, by state . Um, and also as the waivers start falling away, as we leave this public health emergency, there may , there will likely be a renewed look at, you know, what is the right care model? Like how often do you go in and payers may not want to pay for all those virtual visits. Maybe it's too easy. Are they getting banged for their buck? Is it decreasing cost and increasing quality? And if the answer is doing these all virtually is not, then there might not be payment for some of those visits .

Speaker 3:

Yeah . And , and I was gonna touch on this later, but I'll just bring it up now. Um , there's a huge advocacy component here, right? To how we can ensure continued payment in the future. Um , and I think providers have a role to play in that advocacy piece and developing policies that allow increased use of technology outside of the public health emergency. And that's gonna need to happen at the local state and national levels. Um, so policies that allow for continued use and payment of telehealth , um , policies that strengthen , um , healthcare providers capacity and ability to provide those solutions. Um , so at the federal level, aha is advocating for investments in infrastructure and for increased federal funding, coverage and reimbursement for expanded use of telehealth and new technologies. But there's a lot that still needs to play out. Um, when we talk with healthcare leaders, they, they say to us, you know, well, the genie is out of the bottle, right? Like we've done all of this telehealth. We have to find a way to pay it. Um, and so that's where that ad advocacy is gonna be critical as we move forward to make sure , um, that as we evaluate what happened during the public health emergency, we are making the right arguments to continue payment in the future.

Speaker 2:

So Sarah , uh , what do you see as the legal pitfalls in expanding digital health equity?

Speaker 4:

Yeah. And you know , I , it's interesting cuz I , anyone who's ever heard me talk about telehealth or telemedicine, one used to be called or digital health. I always say like, there's a lot of legal pitfalls, but there's also a lot of opportunities. And , and I feel like in this scenario, when we talk about digital health equity, it it's really nice to frame it in that way, but there are, there all , there are legal consequences , um, as well to not , uh , ensuring that there is digital health equity. So first of all, thinking about what is access like there are, you know, office for civil rights, enforces, federal access laws, states have access laws. There are discrimination laws. We have the American with disabilities act and others . So we know that their access laws sitting on the books, we know that CMS and their equity plan is looking at access as one of their main pillars or one of their pillar pillars. And so what does access look like in a digital health age? So Priya , you gave example of, you know, the ability to be able to understand the platform that you're on. Like maybe it's not in the right language or the right. Uh , it's not the right grade level, you know, that creates an a , that could create an access issue. Um, you know, and so one of the things really to look at is no different than you do. Any other access on audit is to start auditing access in a digital age. Don't just look at your, your physician office, your hospital, your skilled nursing facility, or other healthcare , you know, brick and mortar and go and look at how, how is access happening on a digital platform? I think another one that's a barrier, but we're seeing , you know , we've seen change over the years, which is fraud and abuse. You know, originally, if you think about it, it was , uh , there was no guidance from the OIG, for example, on transportation, even like the idea that you would like you could a hospital give a taxi voucher like that was, you know, when we were first looking at population help and like, how do we get somebody, you know, back to their home or back to their, you know, their , and , and could be paid for transportation if they didn't have the means to do that. And now we're looking at fraud abuse , like, do you have the technology need, and can you give it can, can a hospital, for example, give it out to give , uh , technology out to your patients. And we've really seen, we've seen changes in the anti kickback statue and , and other safe harbors around that, but it's still not a , a slam dunk. You can't walk around, you know, handing out free technology to everybody. It really needs to be done in a thoughtful way and, and in a legal and compliant way. Um, I think another thing to think about as , as a , as a barrier, which you , I think you brought up Harvey was , was payment, but also the idea that there may be not just payment, but if things are being measured and you're getting paid off of them, there's compliance issues that are gonna come down the road around , uh , health equity , um, knowing that certain demographics are, are in a certain way. Um, you know, I , I remember Harvey when, when quality was first being measured and I got this question, could, could there be a lawsuit based on, you know, published transparent quality data. And if that quality data now includes health equity, it , it could, it , it could create a different picture for people. And then, you know, finally, I I'd like to say when we , when we think about telehealth, you know, the OIG also is looking at telehealth te fraud and fraud that's done in telehealth. And so once you get paid for something, then there's more likely to be , um , enforcement actions and review , um, by the federal government and other , uh , enforcement agency.

Speaker 2:

Great . You have

Speaker 3:

No, I , I think Sarah set , you know, set forth some of the key barriers and, and our article goes into more detail and even more , um, and I can just tell you from, you know, my seat at the aha, it's really around those policy implications and payment that we, we discussed already.

Speaker 2:

And it would be helpful if , uh , the government would actually define quality, wouldn't it ?

Speaker 4:

Yeah. We'll see.

Speaker 3:

See ,

Speaker 4:

As we'll see what happens because , you know, there are Z codes and , and pre , and I talk about them in , in the article and, and we've , we've talked about them and there's a lot of folks that say that , that they need to be refined. Are they collecting the right information? You know, how will the information be used? Will it be used? It could be used in a wonderful way to be able to track certain quality, but if it quality like any quality metric, if it's not well defined or defined properly, it can , it can create problems. Also , uh , quality measures top , top out . I mean, it'd be wonderful for a health equity measure to top out top out means at some point everyone's at like the 99 percentile and it should not measure anymore. It's just part of healthcare . Um , so I mean, 90, that's a wonderful way to think about what the future of health equity quality looks like, but there are a lot of, of people out there, innovators, the government that are out looking at at these , um , at how do you measure this properly. And then what do you do with this data legally once you have it, you know , um , as well, like don't wanna measure something and then create additional biased or problems in the system when you're trying to solve those problems and biases in the system

Speaker 2:

Pre uh , uh , what do you see technology doing are able to do to eliminate or reduce inequities and the delivery and access to healthcare ? Maybe you can get some examples as well.

Speaker 3:

Yeah. So I , I think technology can do incredible things in this space around health equity and reducing disparities. Um, especially if you're looking at how healthcare can healthcare providers can better address the societal factors that influence health. Um, and I'll just use telemedicine as an example , um, telemedicine can eliminate the need to figure out transportation to get to healthcare or the costs associated with that transportation or the time that transportation may take. Um, individuals won't need to find people to help take care of their kids or other family members. Um, if they need to go to a doctor's appointment , um, telehealth can be done on demand. Um, it can increase access to specialists. It reduces waiting times or the chance of catching a new illness if you're waiting for a long period of time in a physician's office. Um, so it has tremendous advantages and all of those can ultimately improve , um , access to not only healthcare , but to health, right. Which is what we're really trying to do when we're looking at health equity. Um, and given that promise and that potential, we just need to raise awareness on some of the downsides of that, right? Because without this access to technology or digital literacy, we're creating this digital divide, the more that we rely on technology as a solution for health equity. And so that's why, you know, Sarah and I wrote this article, that's why we wanna keep talking about this topic, because as much as it technology has promise, we just need to make sure that we're doing it in the right way.

Speaker 4:

Yeah. And I think, you know, this has been for pre something that we care a lot about. It's, it's been something that we think needs to be said and talked about and continue to , to talk about because it's not going to be like a one fix it once and we're done, right. I mean, these are, we're talking about systems and , uh , and not just the healthcare system, other systems that interact with our healthcare system, and we're talking about individuals and society, and these are complex issues, right. They're not something that get easily solved, you know, with one new code added to a quality metric. Right. So, so we're , we realize that this conversation will have to continue and , and will continue , um, moving forward. And , um, you know, and, and technology will move forward too. Like we talked about, we talked with smartphones. I mean, I remember when smartphones or news or iPads were new and we were saying, oh, no , people in another country could do a telehealth visit, or you could be across the country. I mean, we don't know what the next technology will bring , um, what the next , uh , innovation will bring. And we just don't like, like you said , we , the idea is not to leave anyone behind from it. And I , and then just to hit this home and not to leave their data behind either, like, if their data is part of the , what we're measuring, what we're looking at, how clinical research is done , um, how , how healthcare is built. Um, that's important to understand how to , how to care for people. Um, you know, we can use the example of some of the dermatology studies that were done with AI in Europe. And they said, look, AI's wonderful at detecting skin cancer. And then some of these studies came over the us and they said, AI is horrible at detecting skin cancer. And you know, what the difference was, it was the skin pigments that the AI was used to being tested on. AI needs a lot of data and the data ended up not having lots of skin, pigments, skin color . Um, and so there we go, that , that the AI wasn't great, cuz it didn't have the right data to feed it. And that that's the, that's what we need to make sure we're, we're working again . We are working to make sure that's there and , and you know , the AI missed standards standards that came out, you can Google them , uh , that, that talk about bias in , in AI and , and how we get there and all the different ways we get there as well.

Speaker 2:

So let me depart a little bit based on what you all have been saying recently. I think it was yesterday or the day before apple came out with some new , uh , upgrades of some of its existing products. I don't know if you saw that announcement or not, but a lot of these were in the healthcare area, being able to measure , uh , things like , uh , heart rates and various other indicators of healthcare . So do you all see that this kind of increased technology, which is not terribly inexpensive, could in some way , increase the inequities in the sense that instead of having the kind of healthcare that we've traditionally had, where people don't feel well and they call up their healthcare provider or they go to the hospital or the ER, where this data is being fed into their provider on a continuous basis. And at some point in time, it triggers a red flag for the provider and the provider then reaches out to the patient to say, Hey, I think you need to come in, or you need to look at this or even using this kind of technology is able to do that. Is that in and of itself because of the expense of this technology, those that can afford it will get better healthcare than those who don't. What do you all think about that?

Speaker 4:

Yeah . I mean, one of the things, so if we talked a little bit about remote patient monitoring and remote , um , therapeutic services and the fact that these are now billable , um , services under Medicare, if you follow the rules properly. Um, and yes, I think if you don't have the tech access to technology, whether it's this real time feedback , um, you know, some of the, the pluses of that are yeah, you doctors say, yeah, I get a lot of data. Sometimes it feels like a fire hose though. And there's like too much data and it's like trying to get through all the data. Um, and so this is where, like, for example, technologies like artificial intelligence that can lay over these technologies can actually maybe bring some more narrowed , um , viewpoints to be able to do point of care service in that way. But like I keep saying, if you're , if the , the data, the AI isn't trained on different type types of, of , uh , underserved communities, if the technology's not, you know, given or are not accessible , um, yeah, they'll be left out just like any other technology solution and , and whatever the next technology solution is. If it's not available to everybody, then they could, they could possibly left out.

Speaker 3:

Yeah. And I think that's why it's so important to underscore the fact that this work is not just one and done, which I think Sarah mentioned earlier , um, new technology is coming out at rapid fire pace. Um, the number of startups and healthcare apps that are out there to try to help gather data and make sense of that data in terms of a healthcare diagnosis. Um, it , it's, it's really incredible how fast everything is changing. And so it's really important that as we think through these, that we make the commitment to say, this is an important issue for us, and we're gonna look at it, you know, as we develop and implement solutions, we're gonna look at it one month after we've done that one year after we've done that two years after we've done that, so that we can look at the data and see who is using what, and who is benefiting and who is not benefiting, and then adjust implementation of these digital solutions to make sure that, you know, all patients in a community have access to them. Um, so it , that initial sort of commitment is important. It's really important to look at it as a healthcare provider or technology company as you're implementing one specific solution, but it's also so important to keep going back to it, to make sure that you're , you're keeping up with the technology and you're maintaining access.

Speaker 2:

So PRI let's talk about rural , uh , America . Do you see the issues of inequity and the delivery of access to health different in rural America, from the issues facing the minority community in urban America? And if so, how are the solutions different?

Speaker 3:

So I think there are definitely different challenges. However, I think they end up having the same type of impact. So let me just give you an example to sort of prove out that that thought in a rural area, you may not have access to certain types of clinicians or specialists. Um, they just don't practice there and you need to drive a long distance to get to them, which can be a barrier to getting access to specialty care. Um, in urban areas, you may have specialists, but you still can't get to them, right? You may still have issues with public transportation, the costs , the time associated with the number of bus or train routes that you have to take to get to a specialist. So you end up having the same result, which is the inability to have access to that specialist. Or if you look at this another way , um, in rural areas, you might not have access to broadband. So you can't access digital tools in an urban community. You may have a grid and access to that broadband, but you can't afford it. So at the end of the day, it's the same sort of problem, right? You can't access the digital solutions. Um, so I think that we have to look at sort of what are the impact of these challenges rather than just the challenges themselves, because then many of the solutions , um, are actually pretty similar, right? So we talk about a number of common solutions that can be taken to improve health equity. So for example, collecting data, stratifying it and developing programs that match the needs of your patients and populations based on that data or addressing the individual social needs or social determinants within your actual community , um, implementing cultural humility and implicit bias training , um , working with others in the community to address the problems that exist. And so all of those solutions really can be used regardless of whether you're an urban community or a rural community to solve a variety of different problems. Um, so I think it's just really important. And I'll say it again to really just look at the impact. Some of these things are having not the actual cause of them and then try to solve for that impact.

Speaker 4:

I think, you know, one thing that would be interesting to see, so again, I , I talked about the ACO reach program through the CMS innovation center. They'll be requiring , uh , the participants to have health equity plans, and they'll be due in 20, early 20, 23. And they'll be templates that are available, I think this fall. And so it'll be interesting to see what those templates look like with CMS is looking at for health equity, and then to see if the different ACOs in different regions, whether it's urban, rural with different populations, do those plans look different or not, and then if they are different or they're the same, what was the impact? Right. Um, but I do think that when we talk about in cultural competency and others, it's just really understanding that different populations, access technology differently as well. But it is the idea that some of these solutions will be scalable, right. That they could that once we solve them , they can scale to all , uh , like to a lot of underserved communities. Um, but, but to acknowledge that some communities, the solution might not work. So , um , for example, somebody with a particular disability, it may not be that same solution may not work as , as somebody else. Um, but, but it's nice to acknowledge that , um, that some of these solutions we, we just saw , we saw them once and it solves it for a lot of millions of Americans and that that's, you know , could make a big impact.

Speaker 2:

Let's talk about lawyers and , uh , what roles do health lawyers play in digital health equity. And , and why is it part of our responsibilities , health lawyers , uh , to work in this area?

Speaker 4:

One thing to say is , it's gonna , it's gonna take everybody, right? So we, we need to think about this. Why is it our job? I mean , we have our job to look at our, our legal analysis, our morals and our ethics, that's built into our ethical code. Uh , but knowing that there will be a potential enforcement that healthcare's headed this way, payments headed this way. I think it's imperative that we understand what health equity is and where, where our clients will be facing , uh , opportunities and challenges. But, but what can we, how do we do that? Right? I mean, as lawyers, we usually are asked a question, a legal question, and then we give a legal response. So if no one ever asked us about health equity, we could just say, well, I never had to answer that no one ever asked me whether you're in house or you're , maybe you're at a go , you're a government agency. Maybe you're a law firm lawyer. No one asks me that question, but maybe it's our duty. And this is one of the things we, we talk about our article to , to actually ask the question. So, so for example, what does , how does our board look? What's the composition of our board , um, you know, how , how do , what are our clinicians or , and our DEI strategy for our workforce? You know, have we have I, myself taken bias training are my bias, is impacting mine. How I'm giving legal advice? Am I missing anything right? Um , am I keeping up with all the trends that are happening in the industry and advising our boards or my clients about them ? Um, you know, how, what does my, like, if you're in house , for example, what does your legal department look like? Your compliance professionals? How are they trained? Um, are they diverse? Does your law firm have a diversity and inclusion , uh , initiative? Are you , how are you tracking it ? Are you measuring it? Um, but even like looking at like apology contract, like, how are you looking at it? Are you looking at it? Um , and asking those good questions about, well, how would this work for this population that you're trying to serve? Did you think about this other population and asking those good questions , um, and really understanding, you know, that you do have a role that you, maybe you shouldn't just wait <laugh> to , till somebody asks you that good legal question and, and to be proactive about your discussions. And then one thing that , and I have talked about , um , personally, is what can you do outside of your legal role, right. Can you sit on a board? Can you write an article, you know, for ALA, can you jump on a podcast about digital equity , right ? What can you do to help move the conversation board

Speaker 3:

For you ? Yeah . And Sarah , you know, as you indicated, we set forth so many steps that attorneys can take in the article. And I think , um, what I just wanna add here is that I encourage everyone that's listening to this, or who reads our article to think outside the box and to really realize the tremendous power that we have as attorneys in this health equity work. Um, one of my colleagues in this work, Daniel Daz , um , has always said that only policy can fix what policy has created. And it is so true. Um, the policies and laws we have in our country have played a huge role in perpetuating health, health inequities, and the work that we've talked about, you know, how we can address social needs or address social determinants within a community. They're , they're powerful, but they're really only a start and we're not gonna really see deep change until we change these policies and laws that have led to these inequities. And, and that's the role we have as attorneys. And I encourage everyone who's listening to read the entire special edition of this journal. Um, I really encourage them to read the article that we, that we wrote Sarah. Um, but I also, you know, if they can't make time for anything else, I think it's important to read the article , um, that starts out the journal that's that is entitled. We have met the enemy and he is asked , um, why the legal profession must commit itself to help equity and Harvey it's , it's written by a couple of your colleagues at hush Blackwell. Um, and it really discusses how the legal professional is gonna be critical in , um, how we pay for healthcare , how we use the law to protect from D discrimination , um, and how we all need to be working to improve diversity inclusion and equity in the legal profession. Um, so I think that there's a lot that we can do as attorneys as those that work in the policy space to make movement on health equity. But we really need to sort of think outside the box and understand the absolute power that we have as attorneys in this work.

Speaker 4:

Yeah. And I think keep this discussion going. I mean, you're listening to this podcast you're if you, you could reach out to Preya I , or anyone in that journal. I mean, we all love like to talk about this. There are people out there working on these issues, it's sort of like when ACOs running our health health was new , is that really happening or AI even recently, is that really happened. It is , this work is happening. And so you can be a part of it, which is, you know, be part of , part of the change. And I think that's a really, it's a , it's a really exciting , uh , time. And this is really like, if we really wanna close the digital divide, it's the time is really right now before we get too far ahead.

Speaker 2:

And don't think that you've heard everything that's in the article that Priya and Sarah wrote, because there's a lot more. And so you should absolutely, as they say, read the book and in this case read the journal because it really will get you thinking. And I think you'll find that it will stimulate you and , uh , get you committed to these kinds of issues. So Priya and Sarah , are there anything else that we need to talk about, where do we go from here or have you covered it all ?

Speaker 3:

I'd just like to sort of hone in on two things that we've, we've covered already as we move forward in this work. Um, I think it's really exciting to see the work from my perspective that hospitals and health systems are doing on health equity and specifically digital health equity. Um, but it can't be just the work that the is being done in this moment in time. Um, all of this work on health equity is a journey. It's not a one and done, it's not check the box. It is ongoing work that we need to continue doing into the future. Um, so we need healthcare providers , um, physicians, nurses, hospitals, and health systems. And we need our technology partners to sort of make this commitment to this health equity work and to keep coming back to it. As I said before , um, to look at it upon implementation of new technology, one year out, five years out, who's using it, how are we making sure that the people who need it most are gaining access to this technology opportunity to improve their health? Um, and then second, I just wanna harp on the advocacy piece again. Um, there is a lot of work that we need to do collectively as a healthcare field to ensure that payment aligns with where our healthcare delivery system is moving. Um, we need to work together to make sure that we don't have to put that genie back in the bottle when it comes to all the increased virtual care and other types of services that we adopted throughout the pandemic. Um , so I just really wanted to hone in on those two things again. Um , I think we have a lot of potential for the future, but there is work to be done.

Speaker 4:

Yeah , I guess I would add that . I hope that some of the words that we use that feel very academic, that we can also tell some of the stories, because I think we talk about health equity and social determinants of health. But when at the end of that is a person that didn't have the health outcome that they should have. And so if you look for example, at black maternal health, and we talked about how many people die, that it's life or death in certain cases, that's where we saw health policy change. So I would hope that we, our language evolves as this evolves as we are on this journey that is talking about. And also I'd like to leave the audience with this is hard work. We're gonna see things we don't like about ourselves, our organizations. Um, sometimes we might have to do things under privilege and hire attorneys to work on it, and that might not feel great. Um, but we have to do that hard work or it will not make a change. And so I , I think I'd rather be on the side of making that change and doing the hard work it's coming anyway. So we might as well start it now and, and be , um, and , and use it in a way to be innovative and, and equitable.

Speaker 2:

Well, thank you PR and thank you, Sarah . And of course, thanks to ALA for giving us this opportunity to this podcast. And again, we encourage you to access the journal. It is free. It is online and it is currently available. Thank you.

Speaker 1:

Thank you for listening. If you enjoy this episode, be sure to subscribe to ALA speaking of health law, wherever you get your podcasts to learn more about ALA and the educational resources available to the health law community, visit American health law dot .