Affirmatively Furthering Health Equity

Key Question Being Explored in This Insight:

How can policies effectively bridge the gap in health disparities?

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Institution: University of Pittsburgh

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How can policies effectively bridge the gap in health disparities?

Image courtesy of interviewee. December 17, 2024

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This video discusses the concept of "affirmatively furthering health equity," emphasizing the need to address pervasive health inequities in the United States through a multi-faceted approach that involves all stakeholders in the healthcare ecosystem, including providers and payers. It illustrates the impact of structural factors on health disparities, particularly during the COVID-19 pandemic, where systemic issues exacerbated the vulnerability of marginalized communities, especially people of color.

The author provides examples highlighting how policies related to employment and housing have disproportionately affected people of color, leading to higher infection and mortality rates during the pandemic. The discussion also touches on historical discrimination in the healthcare system, referencing the Hill-Burton Act and its legacy of segregation. This video critiques current Medicaid policies that disadvantage racial minorities through lower reimbursement rates and highlights the Supreme Court's decision allowing states to opt out of Medicaid expansion, which has further limited access for low-income populations.

To promote health equity, the author suggests that the federal government could issue guidance for healthcare entities to understand and improve their policies regarding disadvantaged populations. This video guidance would encourage proactive measures to address health disparities rather than merely prohibiting discrimination. This video points out existing successful models from other sectors, such as housing policy, as potential frameworks for health equity initiatives. The overarching message advocates for recognizing health disparities as critical issues and the need to integrate equity considerations into healthcare operations and funding mechanisms.

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Here are five key points from the video regarding health equity in the United States:

1. **Affirmatively Furthering Health Equity**: The video emphasizes the importance of a multi-factor approach to health equity, highlighting that all stakeholders in the healthcare system, including providers and payers, need to work collaboratively towards eliminating health disparities.

2. **Impact of Structural Factors During COVID-19**: It discusses how structural inequities exacerbated health outcomes during the COVID-19 pandemic, particularly affecting people of color who were more likely to be in essential jobs with limited sick leave, thus increasing their risk of exposure and infection.

3. **Historical Convideo and Policy Issues**: The video outlines historical policies, such as the Hill-Burton Act and Medicaid, that have contributed to ongoing health disparities. It points out that discriminatory practices in healthcare and funding have persisted, affecting marginalized communities, especially people of color.

4. **Role of Civil Rights Laws**: There is a call for a reinterpretation of existing civil rights laws, particularly Title VI of the Civil Rights Act, to encourage healthcare providers to actively work towards health equity and avoid policies that may have a disparate impact on marginalized populations.

5. **Subregulatory Guidance and Technical Assistance**: The author suggests that the Department of Health and Human Services (HHS) should issue guidance to healthcare funding recipients to ensure they are aware of their obligations under civil rights laws, promoting actions that affirmatively advance health equity and providing support for implementing these initiatives.

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Here are key quotes from the video that summarize the major themes and points discussed regarding health equity and the systemic issues contributing to health disparities, particularly in the convideo of the COVID-19 pandemic:

1. **Health Equity Concept**: "The idea of affirmatively furthering health equity is that everyone within the healthcare ecosystem, providers, payers, can all play a role by taking steps to try to move towards health equity."

2. **Collaboration for Solutions**: "You know, the saying is, everyone rowing in the same direction? Only if that's the case do I think that we will really find solutions to make meaningful progress towards greater health equity."

3. **Impact of Structural Factors**: "During the Covid pandemic, structural factors led to increased exposure to the virus... they also led to decreased efforts towards protection and prevention."

4. **Examples of Vulnerability**: "For example, people of color were more likely to be in occupations that were deemed to be so-called essential workers... were less likely to have jobs sick leave, which meant that they were less able to seek testing or to seek treatment."

5. **Housing Disparities**: "People of color in the United States were more likely [to live in] crowded housing, where transmission would be more likely to occur."

6. **Effects of Racism**: "The broader legacy of structural and individual racism played a role here, had an impact during the pandemic... people of color and, particularly black people in the United States, have higher levels of distrust in both public health authorities and the medical profession."

7. **Historical Discrimination in Healthcare**: "The Hill Burton Act... essentially enshrined the separate but equal ideology in federal law."

8. **Medicaid and Disparities**: "The structure of Medicaid grants the state's substantial discretion in implementing the program... often been exercised to the detriment of racially minoritized groups."

9. **Call for Accountability**: "It would recognize that, that everyone who gets taxpayer dollars has a responsibility not to use those funds in discriminatory ways."

10. **Achieving Meaningful Change**: "I don’t imagine that this reorientation if accomplished, would by itself end health disparities... but I think that it could have a meaningful impact."

11. **Subregulatory Guidance**: "What I'm really calling for is for the agency to put out guidance reminding funding recipients that they're bound by Title VI and other anti-discrimination laws... taking steps to ensure that they are advancing health equity."

12. **Economic Impact of Health Disparities**: "Health disparities also have substantial impacts on healthcare costs broadly and on economic productivity."

These quotes encapsulate the core issues around health equity, the systemic barriers that exist, and the necessity for coordinated efforts across the healthcare system to address these disparities.

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Idea of affirmatively furthering health equity is the idea

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that health inequity is pervasive in the United States

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and requires kind of a multi-factor solution.

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But the idea of affirmatively furthering health equity is

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that everyone within the healthcare ecosystem, providers,

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payers, can all play a role by taking steps

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to try to move towards health equity.

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You know, these can be small steps,

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these can be large steps,

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but the idea is that only if

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everyone is really moving in that direction, the, the,

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you know, saying, is everyone rowing in the same direction?

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Um, only if that's the case do I think

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that we will really find solutions

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to make meaningful progress towards greater health equity.

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So during the Covid pandemic, structural factors led

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to increased exposure to the virus.

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They led to increased vulnerability to infection

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and serious harm from the virus.

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And they also led to decreased efforts towards

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protection and prevention.

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So I can give a couple of examples, right?

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Um, for example, in the area of employment

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in the United States, people of colors were people

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of color were more likely to be in occupations

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that were deemed to be so-called essential workers, right?

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So that they couldn't work remotely

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and avoid in-person contact with others.

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In addition, people of color were less likely to have jobs

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that provided health insurance or that

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provided sick leave, which meant that they were less able

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to seek testing or

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to seek treatment if they developed possible symptoms

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of COVID-19 and without testing, they were also less likely

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to isolate and prevent the spread of any infection from fam

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to family members or to other contacts.

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Now, when you think about housing as another example, people

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of color in the United States were more likely

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to live in multi-generational

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or crowded housing,

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where transmission would be more likely to be able to occur.

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And though, while it may not typically be thought of

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as housing policies, policies

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that produced a disproportionate representation

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of marginalized c I'm sorry,

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marginalized communities in congregate living settings

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also produced higher levels of infections and death.

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So here I'm really thinking of the concentration of people

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with disabilities in nursing homes

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or other congregate, living settings,

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and of the disproportionate representation of people

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of color, as well as people

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with disabilities in prisons and jails.

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Nursing homes and carceral institutions were really both

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absolute disasters, when it comes to the pandemic,

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especially early in the pandemic with respect to the number

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of infections and deaths.

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And, and I think these are the result

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of policy choices, right?

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So policies like the war on drugs

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or the hyper policing of communities of color,

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those were choices that led to the concentration of people

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of color in jails and prisons.

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Similarly, Medicaid policies.

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So Medicaid policies that favor the provision

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of care in institutional rather than community settings help

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explain why so many people with disabilities

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and frail older people who would prefer

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to live in their own homes

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or in the community, were still forced

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to live in nursing homes where they were exposed

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to the virus at higher levels.

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I think those are a couple of of concrete examples,

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but I think we should also remember that the broader legacy

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of structural and individual racism, played a role here,

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had an impact during the pandemic.

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Um, people of color and,

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and particularly black people in the United States,

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have higher levels

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of distrust in both public health authorities

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and the medical profession.

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And I think that that distrust reduced their

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willingness to seek care.

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And that distrust was really, reinforced by stories

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during the pandemic of people of color

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who were turned away when they sought treatment or testing

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or were otherwise discriminated against.

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That's one of the things that was really interesting to me

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as I, as I did this research,

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because, you know, what I learned was

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that the US government has gone from a,

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from the explicit sanctioning

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of discrimination in healthcare to policies that support

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or at least enable more subtle contributions

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to health inequity today.

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The really the most egregious example from the 20th century

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was the enactment in 1946

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of a law called the Hill Burton Act.

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And that act provided federal funds,

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for the modernization

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or the construction of hospitals

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that were built in accordance

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with plans created by the states.

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Now that law in its, its language, it officially

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provided that recipients

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of those funds could not discriminate based on race.

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But the statute also included, an exception,

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which provided that, the funding

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hospitals could be funded even if those hospitals

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provided care to black patients

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and white patients in separate facilities.

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As long as those facilities were equal.

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As with educational segregation,

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separate healthcare inevitably proved to be unequal.

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And really the Hill Burton Act was, you know, which

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provided for hospital funding was the only time in the 20th

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century that the separate

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but equal ideology was explicitly enshrined in federal law.

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Now, the exception to the law's anti-discrimination,

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mandate was struck down in as unconstitutional in 1963,

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and just a year later, title VI of the Civil Rights Act,

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prohibited recipients

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of federal funding from discriminating based on race, color,

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or national origin.

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And, and so that made it clear that overt discrimination

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or segregation would be prohibited by federal law.

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Now, once titled six was enacted, it was actually used

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to desegregate hospitals 60 years ago now,

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but the federal government has not vigorously applied

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that law to nursing homes or to individual doctors,

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although most providers in both those groups

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received federal funding.

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Even today, the nursing home industry in the United States

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is historically racially segregated.

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So, you know, those, that's a,

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that's a historical egregious example,

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but today there are still less egregious examples,

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and those can be found with respect to government,

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policies shaping insurance coverage

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and how that those have contributed to health disparities.

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And, and I'm gonna focus, I, you know,

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the paper I wrote has a number of different examples.

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I'll focus here for just a minute on Medicaid,

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which is the program in the United States,

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which is the public health insurance program

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for low income persons.

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And the structure of Medicaid grants,

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the state's substantial discretion

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in implementing the program.

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That discretion has often been exercised to the detriment

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of racially minoritized groups.

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And the way Medicaid works is

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that it's a joint federal state program

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where the Federal pro, government provides a lot

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of funding to states

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that develop their own Medicaid programs, consistent

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with federal, parameters.

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Now, one area where the states have significant discretion

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with respect to their Medicaid programs is in setting

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payment rates for providers,

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and specifically for doctors who provide care

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to Medicare Medicaid enrollees.

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As it's turned out, Medicaid payment rates are significantly

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lower than what doctors receive from either private health

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insurance or Medicare,

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which is another public health insurance program.

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And as a result, these low payment rates have contributed

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to many doctors saying,

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we're just not gonna provide treatment

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to Medicaid enrollees.

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And that, of course, decreases Medicaid

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enrollees access to care.

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I mentioned before that Medicaid is a program

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for low income individuals because people of color,

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and black people in particular in the United States are

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disproportionately low income.

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They're also disproportionately enrolled in Medicaid.

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And when doctors aren't willing to see Medicaid enrollees

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that disproportionately impacts people of color

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and limits their access to care, thereby contributing

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to health disparities, the Affordable Care Act was supposed

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to expand the groups of people who would be eligible

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for Medicaid coverage.

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And when Congress passed that law, they intended

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that expansion to be mandatory.

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But the Supreme Court, in one of its decisions,

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essentially made that mandate to expand.

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They made it optional.

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And the resulting LE decisions made at the state level about

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whether or not to expand Medicaid,

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and make it more freely available

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to low income residents have turned out at least in some

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cases, to be racially tinged.

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So all the states except for 10 at this point, have chosen

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to expand Medicaid.

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But of those 10, more than half that still refuse to expand

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are southern states with large black populations.

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And as a result, the ability

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to make these state level decisions about expansion have

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disproportionately left black Americans out in the cold

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with respect to the a CA, the ACA a's efforts to expand,

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insurance coverage.

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So restructuring those policies to produce health equity

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would require, you know, it,

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it could be done in a couple of ways.

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One would be to limit the state's role in Medicaid,

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make Medicaid a purely federal program.

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Yeah, I think that would be very hard to do politically.

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Mm-hmm. The other thing that already, the,

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the federal government, the agency that's responsible

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for administering the Medicaid program, the, for Medicare

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and Medicaid services known as CMS, yeah.

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It's already used doing what

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it is already taking many steps, I should say, to try

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to build equity enhancement into a lot of its dealings

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with the states in terms of the kinds of conditions

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that it places on grants that it makes to the states.

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Mm-hmm. So it's trying to encourage states, to,

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to reform some of these measures,

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but it really doesn't have a great deal of power to require,

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I think that establishing an expectation that recipients

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of federal healthcare funding an expectation

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that they will act

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to affirmatively further health equity could have several

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beneficial effects, right?

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Those, those could be ranged from, from practical effects

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to more kind of expressive effects.

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I think a starting point is to, to realize

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that today health disparities really are broadly recognized

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as a critical problem by healthcare providers and payers.

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And many are already voluntarily undertaking initiatives

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to try to address disparities,

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and they may see that as part

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of their MI mission if they're a charitable organization,

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or they may just see it as a sound business

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or kind of PR proposition.

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But by and large, I don't think they really see these

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efforts as part of their obligation under civil rights laws.

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They understand, I think those

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civil rights laws primarily is prohibiting them from

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intentionally discriminating on grounds like

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race or disability.

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Um, my point is really that

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because regulations that interpret those laws

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prohibit actions that have an adverse disparate impact on

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protected groups, I think it makes sense that the Department

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of Health and Human Services, which is the federal agency

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that actually provides funds to healthcare actors,

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I think it would make sense for them

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to give recipients guidance on what they need to do

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to avoid liability for disparate impact discrimination.

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And at least in some cases,

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what funding recipients will need to do is

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to take affirmative steps

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to inform themselves about the impact of their policies

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and actions, and then perhaps to adjust their policies

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or actions to avoid or maybe end a disparate impact.

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And, you know, HHS has already articulated

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that expectation in some very specific context, right?

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Kind of laying a foundation for

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what I'm suggesting could be a broader approach.

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And one example comes again from the pandemic.

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In July of 2020, the Office of Civil Rights,

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or OCR in the Department of Health

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and Human Services, it issued a bulletin reminding

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recipients of federal financial assistance

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that their response to the COVID-19 pandemic had to comply

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with Title VI and OCR R'S guidance, specifically

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identified steps that providers might need to take

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to guard against implementing policies

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or pro, practices that disproportionately

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excluded racial and ethnic minorities.

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So, for example, in establishing testing sites

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during the pandemic, the guidance suggested that

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recipients might wanna consider establishing walk-in testing

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sites and making those available in urban areas where racial

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and ethnic minority populations,

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might not have access to cars.

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That kind of guidance implicitly views Title VI

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as potentially demanding war from providers than simply

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avoiding intentional discrimination.

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Right? It it might also, the law might also require them

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to change a customary

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or a default approach to providing testing so

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that they will avoid a disparate impact.

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And that kind of reading of Title VI

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as sometimes requiring federal funding recipients

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to undertake affirmative efforts

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to avoid a disparate impact, it wasn't novel in 2022.

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Decades earlier, HHS was one of more than 20

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agencies that issued guidance

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to federal funding recipients about their Title VI

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obligations to people with limited English profe proficiency

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or LEP, back in 2020

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HHS guidance indicated that recipients of funding had

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to take reasonable steps to ensure that people

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with LEP could enjoy meaningful access to their programs.

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And according to Health

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and Human Services, those reasonable steps that they had

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to take would vary from recipient to recipient

301
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and from community to community.

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But the core message

303
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that H-H-A-H-H-S sent was

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that funding recipients should take steps to learn

305
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of language assistance needs

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and of resources in the populations that they served,

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and then those recipients should respond accordingly.

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Right? And I think that this obligation of healthcare

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providers and programs to take reasonable affirmative steps

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as needed to ensure meaningful language access,

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it's really actually been remarkably durable

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and it's today widely accepted.

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So, expanding this approach,

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if actors in the healthcare world understood that

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by accepting funds from the federal government,

316
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they have some obligation to inform themselves of

317
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how their policies and actions either impede

318
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or advance health equity,

319
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it could shape their decisions in Pro-Health

320
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equity directions.

321
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And, and I mean, I don't, I don't imagine

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that this reorientation if accomplished, would by itself

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end health disparities and achieve health health equity,

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but I think that it could have a meaningful impact.

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You know, it would recognize that, that everyone

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who gets taxpayer dollars has a responsibility not

327
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to use those funds in discriminatory ways.

328
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I think it would validate the efforts of those actors

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who are already taking steps to try

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to advance health equity, and it would also help level the

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competitive, playing field for them.

332
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I do think that this approach is based on

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existing legislative obligations,

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but it interprets them in a way that is better suited

335
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to both identifying

336
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and then uprooting the more subtle conduct

337
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that may not be intentional, intentionally discriminatory,

338
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but that today perpetuates health inequities.

339
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The Fair Housing Act was, was passed back in 1968,

340
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and it includes a provision that directs the Department

341
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of Housing and Urban Development known as hud.

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Um, it directs it to administer the programs funded

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by the Fair Housing Act in ways

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that affirmatively further fair housing.

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In other words, that federal agency is not just supposed

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to work to prevent housing discrimination

347
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or segregation going forward.

348
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It's also supposed to operate in a way that seeks

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to uproot existing barriers to fair housing.

350
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Um, and Congress really saw this requirement as a mechanism

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for undoing entrenched patterns

352
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of racially segregated housing in the United States,

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based partly on Congress's recognition

354
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that the federal government itself was complicit

355
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in creating segregation through its historical support

356
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for redlining and other policies.

357
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Now for decades, agency implementation

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of the Affirmatively furthering for Fair Housing Directive

359
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and the statute was pretty weak.

360
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They basically just said to people

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who were getting money from hud, you need to do some kind

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of study where you look,

363
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you analyze impediments to fair housing.

364
00:18:19.785 --> 00:18:23.085
Um, but, but the agency really didn't do any active

365
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monitoring of that process

366
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or require any real action by, funding recipients.

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But then in 2015,

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the Obama administration promulgated what's come to be known

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as the Affirmatively Furthering Fair Housing Rule,

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and it increased expectations for both the rigor

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and the empirical basis of grantees analysis

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of the obstacles to fair housing in their areas.

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Really, the Obama rule,

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provided for more active involvement by hud, by Housing

375
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and Urban Development, and the oversight of the grantees,

376
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goals and their, their priorities for

377
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how they were going to spend their funds.

378
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The rule also required community participation in

379
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grantees planning processes.

380
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And it was really a, a process oriented rule, right?

381
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It required that that certain steps be taken

382
00:19:20.665 --> 00:19:22.685
and certain constituency have

383
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constituencies have a voice in the planning

384
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of housing projects,

385
00:19:27.465 --> 00:19:30.165
but it didn't prescribe any particular outcomes.

386
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It didn't say, recipients, you have to take this step

387
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or this step, or this step

388
00:19:35.105 --> 00:19:36.645
to affirmatively further fair housing.

389
00:19:36.985 --> 00:19:38.085
You just have to study it.

390
00:19:38.085 --> 00:19:41.525
You have to figure out what you can do in your project.

391
00:19:42.465 --> 00:19:44.765
Now, I will say, not surprisingly,

392
00:19:44.825 --> 00:19:47.965
the Affirmatively furthering Fair Housing Rule did not

393
00:19:47.965 --> 00:19:50.005
weather the first Trump administration,

394
00:19:50.425 --> 00:19:53.325
but the Biden administration has largely reinstated it.

395
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Um, likely it will be undone again in the

396
00:19:56.645 --> 00:19:57.845
second Trump administration.

397
00:19:58.585 --> 00:20:02.965
And, and with respect to its relevance to my proposal

398
00:20:03.155 --> 00:20:06.405
regarding affirmatively furthering health equity, I'd say

399
00:20:06.405 --> 00:20:10.605
that the Fair Housing Act mandate is more of an inspiration

400
00:20:11.265 --> 00:20:14.445
for the proposed affirmatively furthering health equity

401
00:20:14.885 --> 00:20:17.085
guidance rather than a model, right?

402
00:20:17.245 --> 00:20:21.245
Because the Fair Housing Act, that piece of legislation

403
00:20:21.965 --> 00:20:26.205
explicitly calls for, excuse me, HUD

404
00:20:26.265 --> 00:20:29.325
to affirmatively further fair housing in the legislation

405
00:20:29.345 --> 00:20:33.175
itself, and no civil rights law applicable

406
00:20:33.175 --> 00:20:36.055
to the healthcare industry has that kind

407
00:20:36.055 --> 00:20:38.535
of explicit directive or authorization.

408
00:20:39.395 --> 00:20:42.295
But nonetheless, as I explore in the article I wrote,

409
00:20:42.455 --> 00:20:45.455
I think this process oriented approach could

410
00:20:45.485 --> 00:20:47.015
translate well to healthcare.

411
00:20:47.505 --> 00:20:49.845
Um, and in fact, some models for it already exists.

412
00:20:50.125 --> 00:20:52.525
I think I do have to start by acknowledging

413
00:20:52.525 --> 00:20:55.765
that I'd be more optimistic about the shorter term

414
00:20:55.875 --> 00:20:57.125
impacts of my article.

415
00:20:57.265 --> 00:21:00.205
If the US election had, produced a different outcome,

416
00:21:00.925 --> 00:21:04.205
I don't think that we are likely to see vigorous enforcement

417
00:21:04.205 --> 00:21:06.325
of civil rights laws in any setting,

418
00:21:06.355 --> 00:21:09.645
including healthcare under a second Trump administration.

419
00:21:10.345 --> 00:21:12.445
Um, that said, I think

420
00:21:12.445 --> 00:21:15.485
that the suggested approach may still offer some benefits,

421
00:21:15.485 --> 00:21:17.245
even this in, even in the kind

422
00:21:17.245 --> 00:21:19.965
of anti-regulatory environment that we're heading into.

423
00:21:20.545 --> 00:21:24.325
Um, and for that statement that I just made to make sense,

424
00:21:24.885 --> 00:21:28.565
I should emphasize that my proposal is for the issuance of,

425
00:21:28.625 --> 00:21:32.645
of what we would call subregulatory guidance.

426
00:21:33.385 --> 00:21:36.765
In other words, I am not proposing that Health

427
00:21:36.765 --> 00:21:39.405
and Human Services promulgate regulations

428
00:21:40.085 --> 00:21:43.445
articulating a legally enforceable obligation

429
00:21:44.185 --> 00:21:46.005
to affirmatively further health equity.

430
00:21:46.525 --> 00:21:47.925
I think that a step like

431
00:21:47.925 --> 00:21:52.285
that would doubtless prompt a court challenge based on,

432
00:21:53.505 --> 00:21:55.805
excuse me, recent Supreme Court precedent

433
00:21:56.565 --> 00:21:57.965
limiting regulatory authority.

434
00:21:59.165 --> 00:22:02.415
Instead, what I'm really calling for is for the agency

435
00:22:02.415 --> 00:22:05.535
to put out guidance reminding funding recipients

436
00:22:05.535 --> 00:22:07.375
that they're bound by Title VI

437
00:22:07.475 --> 00:22:10.815
and other anti-discrimination laws that these laws

438
00:22:11.375 --> 00:22:13.655
prohibit disparate impact discrimination,

439
00:22:14.355 --> 00:22:16.495
and expressing the agency's understanding

440
00:22:16.965 --> 00:22:20.575
that funding recipients should be informing themselves of

441
00:22:20.595 --> 00:22:23.615
how their policies and practices either advance

442
00:22:24.275 --> 00:22:25.895
or impede health equity,

443
00:22:26.155 --> 00:22:28.855
and then taking steps to ensure that they are advancing

444
00:22:29.435 --> 00:22:30.535
and not impeding.

445
00:22:31.795 --> 00:22:33.175
So the idea

446
00:22:33.205 --> 00:22:35.335
that the federal government should develop guidance

447
00:22:35.395 --> 00:22:39.015
or could develop guidance that takes seriously the idea

448
00:22:39.245 --> 00:22:42.135
that all funding recipients should somehow

449
00:22:44.155 --> 00:22:45.895
be acting to promote health equity,

450
00:22:46.555 --> 00:22:49.975
and that the agency could provide technical assistance

451
00:22:50.595 --> 00:22:54.255
to recipients or somehow otherwise facilitate their efforts.

452
00:22:54.975 --> 00:22:58.295
I think that that idea could gain some traction in

453
00:22:58.295 --> 00:22:59.415
the healthcare industry.

454
00:23:00.765 --> 00:23:03.745
As I said earlier, a concern about the impacts

455
00:23:03.805 --> 00:23:07.225
of health disparities is widespread among payers

456
00:23:07.245 --> 00:23:08.385
and providers today.

457
00:23:09.325 --> 00:23:11.585
The impact on the health and the wellbeing

458
00:23:11.585 --> 00:23:14.705
and the longevity of people for marginalized groups,

459
00:23:15.245 --> 00:23:16.825
is important.

460
00:23:17.405 --> 00:23:19.545
You know, that's the central concern to be sure.

461
00:23:20.875 --> 00:23:24.135
But health disparities also have substantial impacts on

462
00:23:24.135 --> 00:23:27.975
healthcare costs broadly and on economic productivity.

463
00:23:28.755 --> 00:23:31.455
So a 2018 paper estimated

464
00:23:31.455 --> 00:23:35.095
that eliminating racial health disparities would result in

465
00:23:35.095 --> 00:23:39.215
an annual increase of $135 billion

466
00:23:39.915 --> 00:23:42.935
to annual US gross domestic product.

467
00:23:43.375 --> 00:23:44.735
I still think that

468
00:23:44.735 --> 00:23:47.325
It's worth exploring the use of this kind of

469
00:23:47.875 --> 00:23:51.565
subregulatory guidance, particularly in areas

470
00:23:51.575 --> 00:23:54.605
where industry actors are already open

471
00:23:54.945 --> 00:23:56.365
to pro-social conduct,

472
00:23:57.065 --> 00:23:59.965
but might benefit from government technical assistance

473
00:24:00.225 --> 00:24:01.925
or facilitation of their efforts.

474
00:24:02.885 --> 00:24:05.365
I think that this would align with some discussions

475
00:24:05.365 --> 00:24:08.365
regarding kind of cooperative models of regulation,

476
00:24:09.065 --> 00:24:12.325
and that that may be a useful avenue for continuing

477
00:24:12.325 --> 00:24:16.525
to make progress during a period of regulatory retrenchment.

Towards Health Equity: Addressing Structural Inequities

00:00:00 - Idea of affirmatively furthering health equity is the idea that health inequity is pervasive in the United States and requires kind of a multi-factor solution. But the idea of affirmatively furthering health equity is that everyone within the healthcare ecosystem, providers, payers, can all play a role by taking steps to try to move towards health equity. You know, these can be small steps, these can be large steps,

00:00:34 - everyone is really moving in that direction, the, the, you know, saying, is everyone rowing in the same direction? only if that's the case do I think that we will really find solutions to make meaningful progress towards greater health equity. So during the Covid pandemic, structural factors led to increased exposure to the virus. They led to increased vulnerability to infection

00:01:03 - And they also led to decreased efforts towards protection and prevention. So I can give a couple of examples, right? for example, in the area of employment in the United States, people of colors were people of color were more likely to be in occupations that were deemed to be so-called essential workers, right? So that they couldn't work remotely and avoid in-person contact with others. In addition, people of color were less likely to have jobs

Impact of Policy Choices on Health Disparities During COVID-19

00:01:35 - provided sick leave, which meant that they were less able to seek testing or to seek treatment if they developed possible symptoms of COVID-19 and without testing, they were also less likely to isolate and prevent the spread of any infection from fam to family members or to other contacts. Now, when you think about housing as another example, people of color in the United States were more likely

00:02:04 - or crowded housing, where transmission would be more likely to be able to occur. And though, while it may not typically be thought of as housing policies, policies that produced a disproportionate representation of marginalized c I'm sorry, marginalized communities in congregate living settings also produced higher levels of infections and death. So here I'm really thinking of the concentration of people

00:02:35 - or other congregate, living settings, and of the disproportionate representation of people of color, as well as people with disabilities in prisons and jails. Nursing homes and carceral institutions were really both absolute disasters, when it comes to the pandemic, especially early in the pandemic with respect to the number of infections and deaths. And, and I think these are the result of policy choices, right? So policies like the war on drugs

Impact of Racism on Healthcare Access and Equity

00:03:06 - those were choices that led to the concentration of people of color in jails and prisons. Similarly, Medicaid policies. So Medicaid policies that favor the provision of care in institutional rather than community settings help explain why so many people with disabilities and frail older people who would prefer to live in their own homes or in the community, were still forced to live in nursing homes where they were exposed

00:03:36 - I think those are a couple of of concrete examples, but I think we should also remember that the broader legacy of structural and individual racism, played a role here, had an impact during the pandemic. people of color and, and particularly black people in the United States, have higher levels of distrust in both public health authorities and the medical profession. And I think that that distrust reduced their willingness to seek care.

00:04:10 - during the pandemic of people of color who were turned away when they sought treatment or testing or were otherwise discriminated against. That's one of the things that was really interesting to me as I, as I did this research, because, you know, what I learned was that the US government has gone from a, from the explicit sanctioning of discrimination in healthcare to policies that support or at least enable more subtle contributions

Legacy of the Hill-Burton Act and Healthcare Segregation

00:04:40 - The really the most egregious example from the 20th century was the enactment in 1946 of a law called the Hill Burton Act. And that act provided federal funds, for the modernization or the construction of hospitals that were built in accordance with plans created by the states. Now that law in its, its language, it officially provided that recipients of those funds could not discriminate based on race.

00:05:13 - which provided that, the funding hospitals could be funded even if those hospitals provided care to black patients and white patients in separate facilities. As long as those facilities were equal. As with educational segregation, separate healthcare inevitably proved to be unequal. And really the Hill Burton Act was, you know, which

00:05:41 - century that the separate but equal ideology was explicitly enshrined in federal law. Now, the exception to the law's anti-discrimination, mandate was struck down in as unconstitutional in 1963, and just a year later, title VI of the Civil Rights Act, prohibited recipients of federal funding from discriminating based on race, color, or national origin.

Challenges of Racial Disparities in Healthcare Funding

00:06:11 - or segregation would be prohibited by federal law. Now, once titled six was enacted, it was actually used to desegregate hospitals 60 years ago now, but the federal government has not vigorously applied that law to nursing homes or to individual doctors, although most providers in both those groups received federal funding. Even today, the nursing home industry in the United States is historically racially segregated.

00:06:43 - that's a historical egregious example, but today there are still less egregious examples, and those can be found with respect to government, policies shaping insurance coverage and how that those have contributed to health disparities. And, and I'm gonna focus, I, you know, the paper I wrote has a number of different examples. I'll focus here for just a minute on Medicaid, which is the program in the United States, which is the public health insurance program

00:07:13 - And the structure of Medicaid grants, the state's substantial discretion in implementing the program. That discretion has often been exercised to the detriment of racially minoritized groups. And the way Medicaid works is that it's a joint federal state program where the Federal pro, government provides a lot of funding to states that develop their own Medicaid programs, consistent with federal, parameters.

Challenges in Medicaid Payment Rates and Access to Care

00:07:45 - with respect to their Medicaid programs is in setting payment rates for providers, and specifically for doctors who provide care to Medicare Medicaid enrollees. As it's turned out, Medicaid payment rates are significantly lower than what doctors receive from either private health insurance or Medicare, which is another public health insurance program. And as a result, these low payment rates have contributed

00:08:16 - we're just not gonna provide treatment to Medicaid enrollees. And that, of course, decreases Medicaid enrollees access to care. I mentioned before that Medicaid is a program for low income individuals because people of color, and black people in particular in the United States are disproportionately low income. They're also disproportionately enrolled in Medicaid. And when doctors aren't willing to see Medicaid enrollees

00:08:47 - and limits their access to care, thereby contributing to health disparities, the Affordable Care Act was supposed to expand the groups of people who would be eligible for Medicaid coverage. And when Congress passed that law, they intended that expansion to be mandatory. But the Supreme Court, in one of its decisions, essentially made that mandate to expand. They made it optional. And the resulting LE decisions made at the state level about

Challenges in Medicaid Expansion and Health Equity

00:09:21 - and make it more freely available to low income residents have turned out at least in some cases, to be racially tinged. So all the states except for 10 at this point, have chosen to expand Medicaid. But of those 10, more than half that still refuse to expand are southern states with large black populations. And as a result, the ability to make these state level decisions about expansion have

00:09:52 - with respect to the a CA, the ACA a's efforts to expand, insurance coverage. So restructuring those policies to produce health equity would require, you know, it, it could be done in a couple of ways. One would be to limit the state's role in Medicaid, make Medicaid a purely federal program. Yeah, I think that would be very hard to do politically. Mm-hmm. The other thing that already, the,

00:10:24 - for administering the Medicaid program, the, for Medicare and Medicaid services known as CMS, yeah. It's already used doing what it is already taking many steps, I should say, to try to build equity enhancement into a lot of its dealings with the states in terms of the kinds of conditions that it places on grants that it makes to the states. Mm-hmm. So it's trying to encourage states, to,

Promoting Health Equity Through Federal Guidance

00:10:54 - but it really doesn't have a great deal of power to require, I think that establishing an expectation that recipients of federal healthcare funding an expectation that they will act to affirmatively further health equity could have several beneficial effects, right? Those, those could be ranged from, from practical effects to more kind of expressive effects. I think a starting point is to, to realize that today health disparities really are broadly recognized

00:11:26 - And many are already voluntarily undertaking initiatives to try to address disparities, and they may see that as part of their MI mission if they're a charitable organization, or they may just see it as a sound business or kind of PR proposition. But by and large, I don't think they really see these efforts as part of their obligation under civil rights laws. They understand, I think those civil rights laws primarily is prohibiting them from

00:11:55 - race or disability. my point is really that because regulations that interpret those laws prohibit actions that have an adverse disparate impact on protected groups, I think it makes sense that the Department of Health and Human Services, which is the federal agency that actually provides funds to healthcare actors, I think it would make sense for them to give recipients guidance on what they need to do to avoid liability for disparate impact discrimination.

Promoting Equity in Healthcare Policy Implementation

00:12:28 - what funding recipients will need to do is to take affirmative steps to inform themselves about the impact of their policies and actions, and then perhaps to adjust their policies or actions to avoid or maybe end a disparate impact. And, you know, HHS has already articulated that expectation in some very specific context, right? Kind of laying a foundation for what I'm suggesting could be a broader approach.

00:13:00 - In July of 2020, the Office of Civil Rights, or OCR in the Department of Health and Human Services, it issued a bulletin reminding recipients of federal financial assistance that their response to the COVID-19 pandemic had to comply with Title VI and OCR R'S guidance, specifically identified steps that providers might need to take to guard against implementing policies

00:13:31 - excluded racial and ethnic minorities. So, for example, in establishing testing sites during the pandemic, the guidance suggested that recipients might wanna consider establishing walk-in testing sites and making those available in urban areas where racial and ethnic minority populations, might not have access to cars. That kind of guidance implicitly views Title VI

Ensuring Equitable Access Through Title VI Compliance

00:14:04 - avoiding intentional discrimination. Right? It it might also, the law might also require them to change a customary or a default approach to providing testing so that they will avoid a disparate impact. And that kind of reading of Title VI as sometimes requiring federal funding recipients to undertake affirmative efforts to avoid a disparate impact, it wasn't novel in 2022.

00:14:35 - agencies that issued guidance to federal funding recipients about their Title VI obligations to people with limited English profe proficiency or LEP, back in 2020 HHS guidance indicated that recipients of funding had to take reasonable steps to ensure that people with LEP could enjoy meaningful access to their programs.

00:15:03 - and Human Services, those reasonable steps that they had to take would vary from recipient to recipient and from community to community. But the core message that H-H-A-H-H-S sent was that funding recipients should take steps to learn of language assistance needs and of resources in the populations that they served, and then those recipients should respond accordingly. Right? And I think that this obligation of healthcare

Expanding Obligations for Health Equity in Federal Funding

00:15:38 - as needed to ensure meaningful language access, it's really actually been remarkably durable and it's today widely accepted. So, expanding this approach, if actors in the healthcare world understood that by accepting funds from the federal government, they have some obligation to inform themselves of how their policies and actions either impede

00:16:06 - it could shape their decisions in Pro-Health equity directions. And, and I mean, I don't, I don't imagine that this reorientation if accomplished, would by itself end health disparities and achieve health health equity, but I think that it could have a meaningful impact. You know, it would recognize that, that everyone who gets taxpayer dollars has a responsibility not to use those funds in discriminatory ways. I think it would validate the efforts of those actors

00:16:38 - to advance health equity, and it would also help level the competitive, playing field for them. I do think that this approach is based on existing legislative obligations, but it interprets them in a way that is better suited to both identifying and then uprooting the more subtle conduct that may not be intentional, intentionally discriminatory, but that today perpetuates health inequities. The Fair Housing Act was, was passed back in 1968,

Uprooting Barriers to Fair Housing

00:17:13 - of Housing and Urban Development known as hud. it directs it to administer the programs funded by the Fair Housing Act in ways that affirmatively further fair housing. In other words, that federal agency is not just supposed to work to prevent housing discrimination or segregation going forward. It's also supposed to operate in a way that seeks to uproot existing barriers to fair housing. and Congress really saw this requirement as a mechanism

00:17:45 - of racially segregated housing in the United States, based partly on Congress's recognition that the federal government itself was complicit in creating segregation through its historical support for redlining and other policies. Now for decades, agency implementation of the Affirmatively furthering for Fair Housing Directive and the statute was pretty weak. They basically just said to people who were getting money from hud, you need to do some kind

00:18:16 - you analyze impediments to fair housing. but, but the agency really didn't do any active monitoring of that process or require any real action by, funding recipients. But then in 2015, the Obama administration promulgated what's come to be known as the Affirmatively Furthering Fair Housing Rule, and it increased expectations for both the rigor and the empirical basis of grantees analysis

Impact of Housing Policies on Health Equity

00:18:51 - Really, the Obama rule, provided for more active involvement by hud, by Housing and Urban Development, and the oversight of the grantees, goals and their, their priorities for how they were going to spend their funds. The rule also required community participation in grantees planning processes. And it was really a, a process oriented rule, right?

00:19:20 - and certain constituency have constituencies have a voice in the planning of housing projects, but it didn't prescribe any particular outcomes. It didn't say, recipients, you have to take this step or this step, or this step to affirmatively further fair housing. You just have to study it. You have to figure out what you can do in your project. Now, I will say, not surprisingly, the Affirmatively furthering Fair Housing Rule did not

00:19:50 - but the Biden administration has largely reinstated it. likely it will be undone again in the second Trump administration. And, and with respect to its relevance to my proposal regarding affirmatively furthering health equity, I'd say that the Fair Housing Act mandate is more of an inspiration for the proposed affirmatively furthering health equity guidance rather than a model, right? Because the Fair Housing Act, that piece of legislation

Translating Fair Housing Principles to Healthcare Equity

00:20:26 - to affirmatively further fair housing in the legislation itself, and no civil rights law applicable to the healthcare industry has that kind of explicit directive or authorization. But nonetheless, as I explore in the article I wrote, I think this process oriented approach could translate well to healthcare. and in fact, some models for it already exists. I think I do have to start by acknowledging

00:20:55 - impacts of my article. If the US election had, produced a different outcome, I don't think that we are likely to see vigorous enforcement of civil rights laws in any setting, including healthcare under a second Trump administration. that said, I think that the suggested approach may still offer some benefits, even this in, even in the kind of anti-regulatory environment that we're heading into. and for that statement that I just made to make sense,

00:21:28 - of what we would call subregulatory guidance. In other words, I am not proposing that Health and Human Services promulgate regulations articulating a legally enforceable obligation to affirmatively further health equity. I think that a step like that would doubtless prompt a court challenge based on, excuse me, recent Supreme Court precedent

Advancing Health Equity through Federal Guidance

00:21:59 - Instead, what I'm really calling for is for the agency to put out guidance reminding funding recipients that they're bound by Title VI and other anti-discrimination laws that these laws prohibit disparate impact discrimination, and expressing the agency's understanding that funding recipients should be informing themselves of how their policies and practices either advance or impede health equity, and then taking steps to ensure that they are advancing

00:22:31 - So the idea that the federal government should develop guidance or could develop guidance that takes seriously the idea that all funding recipients should somehow be acting to promote health equity, and that the agency could provide technical assistance to recipients or somehow otherwise facilitate their efforts. I think that that idea could gain some traction in the healthcare industry.

00:23:03 - of health disparities is widespread among payers and providers today. The impact on the health and the wellbeing and the longevity of people for marginalized groups, is important. You know, that's the central concern to be sure. But health disparities also have substantial impacts on healthcare costs broadly and on economic productivity. So a 2018 paper estimated

Exploring Subregulatory Guidance for Economic Growth

00:23:35 - an annual increase of $135 billion to annual US gross domestic product. I still think that It's worth exploring the use of this kind of subregulatory guidance, particularly in areas where industry actors are already open to pro-social conduct, but might benefit from government technical assistance or facilitation of their efforts.

00:24:12 - regarding kind of cooperative models of regulation, and that that may be a useful avenue for continuing to make progress during a period of regulatory retrenchment.

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