Abstract

Excerpted From: Mary Crossley, Affirmatively Furthering Health Equity, 89 Brooklyn Law Review 495 (Winter, 2024) (359 Footnotes) (Full Document)

The COVID-19 pandemic opened the eyes of many Americans to the existence of unjust healthdisparities. Early pandemic reporting recounted higher rates of infections and deaths among Black people in cities including Milwaukee, New York City, and New Orleans. As the pandemic progressed and vaccines first became available, vaccination rates lagged in communities of color, leaving them less protected against illness and death. Two years into the pandemic, BlackAmericans were still being hospitalized for COVID-19 at rates higher than the rest of the population and facing disparities in diagnosis and treatment of long COVID. People with disabilities have also faced numerous disparities during the pandemic, including elevated rates of illness and death, barriers to vaccination and care, and discrimination. Media reporting explained that these worse health outcomes did not flow from innate genetic or physiological differences. Rather, they were products of social and economic influences that made some people more likely to be exposed to the virus (because they lived in multigenerational homes or crowded housing, or worked as essential workers), less likely to seek care (because they were less likely to have health insurance or a job that permitted sick leave), and more likely to suffer bad outcomes once infected (because of higher rates of underlying health conditions).

Experiencing worse health was not new for Black people, disabled people, and members of other groups that society has marginalized. Reporting about the social and economic sources of pandemic healthdisparities did not surprise researchers, activists, and policy makers who have long sought to address unjust healthdisparities in the United States. The harsh light that the pandemic cast on these disparities, however, energized and added urgency to efforts to disrupt the structural features that lead to them. That disruption's goal is to advance the cause of health equity, where “everyone has a fair and just opportunity to be as healthy as possible.”

This article proposes a new mechanism to advance that cause, one that targets actors in the healthcare sector. Specifically, it argues for articulating an obligation for actors who receive federal healthcare funding to take affirmative steps to further health equity. To be sure, many structural features relating to employment, housing, education, transportation, environmental hazards, and food insecurity contribute to healthdisparities. Eradicating healthdisparities will require broad-ranging and sustained initiatives that reach beyond the healthcare sector. But dismantling discriminatory practices and addressing structural barriers within that sector is a necessary, if not sufficient, step on the road to health justice.

The proposed obligation to “affirmatively further health equity” (AFHE) is novel in several regards. Existing antidiscrimination statutes supply its foundation, but AFHE extends beyond conventional contemporary implementations of those laws. This extension is imperative because prohibiting intentional discrimination--even if vigorously enforced--fails to reach aspects of the twenty-first century healthcare industry that create or reinforce disparities. Establishing an AFHE obligation would enable civil rights laws to promote health equity, not simply prohibit intentional discrimination by healthcare actors.

The proposed AFHE obligation is unabashedly legal in character. Many discussions of how to address healthdisparities revolve around reforms to economic, social, or health policy to eliminate or mitigate the structures that feed healthdisparities. These range from arguments for paid sick leave, to enacting protections against unjust evictions, to reforming school discipline. In the health arena, proposals span the spectrum from reforming Medicaid policy, to extending coverage to incarcerated people, to infusing antiracist content into medical education. A legal obligation to affirmatively further health equity might prompt recipients of federal healthcare funding to embrace advocacy for policy innovations along these lines, but fundamentally it would require them to act to advance health equity in their own domains. In other words, an AFHE obligation assigns actors within the healthcare sector roles to play in making healthcare more equitable.

Other legal scholars, activists, and policy makers have proposed law-based (or at least law-adjacent) interventions for addressing healthdisparities. For example, Angela P. Harris and Ayesha Pamukcu argue for “a civil rights of health initiative” in which civil rights advocates deploy public health knowledge and evidence to satisfy antidiscrimination law's “intent” requirement by building a record from which intent can be inferred. To address how implicit bias contributes to healthdisparities, Dayna Bowen Matthew advocates for amending Title VI of the Civil Rights Act to recognize a private right of action to sue for disparate impact discrimination and to adopt a negligence standard of care in disparate impact cases. Nearly two decades ago, Kevin Outterson made the legal case for health-specific reparations based on a history of unequal government treatment persisting during the lives of BlackAmericans who are still alive today. More recently, Wendy Netter Epstein argued for a federally imposed and funded health equity mandate involving actors across a range of sectors working collaboratively to address social determinants of health. By and large, the proposed AFHE obligation could fruitfully coexist with and complement these suggested interventions. It goes further, however, by establishing a legal expectation that public and private actors who receive federal healthcare dollars should take steps themselves to undo the harms of healthdisparities.

Inspiration for this obligation comes from housing law. Since 1968, the Fair Housing Act (FHA) has directed the Department of Housing and Urban Development (HUD) to administer its “programs and activities relating to housing and urban development in a manner affirmatively to further the [FHA's] policies.” Congressional recognition of the federal government's historical role in enshrining racially segregated housing prompted this directive to act affirmatively to advance fair housing. For nearly half a century, HUD's implementation of the directive was halting, but in 2015, the Obama Administration promulgated a rule establishing concrete obligations accompanying receipt of federal housing funds. The Affirmatively Furthering Fair Housing (AFFH) Rule required HUD grantees to engage in a data driven assessment of fair housing issues in their communities and establish fair housing goals on an ongoing basis. The AFFH Rule sought to ensure that grantees--at the very least--would no longer use federal housing funds in ways that ignorantly (or indifferently) perpetuated patterns of residential segregation. More ambitiously, the AFFH Rule also meant to support efforts to advance integrated and equitable housing opportunities in communities across the United States.

Much as government actions helped produce racially segregated housing, government action has produced or contributed to healthdisparities and segregated healthcare, both historically and today. Examples of government complicity range from the overt (a hospital construction program explicitly countenancing “separate but equal” hospital care) to the more subtle (structuring and funding the Medicaid program in a fashion that limits access to providers). Thus, as in the housing context, a history of enabling discriminatory healthcare supplies a moral predicate for requiring that, going forward, government dollars be used in ways that will remedy the harms of segregated and unequal healthcare.

An important legal distinction exists between the housing and healthcare contexts, however. The FHA's statutory language explicitly directs the HUD Secretary to affirmatively pursue fair housing. Civil rights laws applicable to healthcare settings lack similarly explicit directives. Those statutes, however, have been interpreted to prohibit disparate impact discrimination. The Department of Health and Human Services (HHS) should develop guidance for recipients of federal funds regarding affirmative steps they should take to ensure that their policies, practices, and operational decisions do not produce disparate impact discrimination. Informal agency guidance would not be legally binding on funding recipients. However, it could signal to healthcare actors that they face enforcement action by HHS if they fail to address policies producing a disparate impact and simultaneously support actors' efforts to avoid or repair such inequitable results.

The creation of an AFHE obligation would doubtless provoke opposition, perhaps even legal challenges. Opponents might argue that it exceeds HHS's statutory authority or runs afoul of constitutional constraints. Other objections to agency guidance establishing an AFHE obligation may be more political or pragmatic in nature, suggesting, for example, that HHS is ill-equipped to produce guidance adaptable to the diverse range of healthcare actors that receive federal funding. These arguments are to be reckoned with but do not overcome arguments in favor of an AFHE obligation.

An AFHE obligation would not be a silver bullet for eliminating healthdisparities. But it could go far in establishing the expectation that federal funding cannot be used in a way that perpetuates healthinequity. As President John F. Kennedy explained the need for Title VI of the Civil Right Acts: “Simple justice requires that public funds, to which all taxpayers of all races contribute, not be spent in any fashion which encourages, entrenches, subsidizes or results in racial discrimination.” Moreover, an AFHE obligation would bolster the efforts of those actors in the healthcare sector that are already engaging in initiatives to advance health equity and establish similar efforts as the norm, rather than the exception.

The article proceeds as follows: Part I presents an overview of the obligation that federal housing grantees have to “affirmatively further ... fair housing.” This obligation, which originates in the language of the FHA and was fleshed out in the Obama Administration's AFFH Rule, provides the inspiration for the AFHE obligation that this article proposes. By providing examples of how government policies have produced, entrenched, or subsidized healthinequity, Part II draws a parallel to how the government's complicity in supporting racialresidential segregation justified the FHA's affirmative obligation. In so doing, it supplies the moral foundation for establishing a health equity affirmative obligation on the part of those who receive federal healthcare funding. Part III draws upon Professor Olatunde Johnson's work examining “equality directives,” civil rights tools that leverage federal funding to prompt recipients to engage in forward-looking planning to increase racial equity in their respective domains. That part goes on to identify several antidiscrimination laws that offer foundations for HHS to issue an equality directive for healthcare. Part IV describes several existing planning or equity-oriented obligations that healthcare actors are already subject to and suggests that these precedents might supply a partial template for crafting a healthcare equality directive. Part V considers and responds to several potential objections to an AFHE obligation.

[. . .]

Each year, the federal government spends billions of dollars on healthcare, making payments to hundreds of thousands of health sector actors. By elucidating how federal funding and policy have contributed to persistent healthdisparities in the United States, this article makes the case that receipt of federal funding should come with some responsibility for working to ameliorate those inequities. Antidiscrimination laws provide a legal foundation for HHS to issue guidance directing healthcare funding recipients to take steps to affirmatively further health equity. In doing so, HHS could use as models obligations to engage in assessment and planning that already exist in the healthcare industry. Attaching this obligation to take steps to help remedy healthinequities to the receipt of federal funds is a matter of “[s]imple justice.” The resulting sector-wide commitment to eliminating healthdisparities is a necessary component of achieving health justice.

Professor of Law and John E. Murray Faculty Scholar, University of Pittsburgh School of Law.