Abstract

Excerpted From: Thomas Wilson Williams, Owning Health Equity: Entrepreneurship, Capital, and Community-owned Health Equity, 55 Seton Hall Law Review 127 (2024) (344 Footnotes) (Full Document)

Health equity is a core value of the American Public Health Association (APHA). The APHA defines health inequity as “the uneven distribution of social and economic resources that impact an individual's health ... [that] often stem [s] from structural racism or the historical disenfranchisement and discrimination of particular marginalized groups, including racial and ethnic minorities, low-income populations, and members of the LGBTQ community.” The terms inequity and disparity are often used interchangeably. Both concepts identify the structural origins of widescale, disproportionate health outcomes in the general population. The APHA and other organizations like it confront health disparities and inequities focused on the role of public entities. A concerted effort to center small-firm entrepreneurship around correcting health disparities and inequities has not been well explored.

This gap in practice and scholarship is troubling; it fails to acknowledge the nuanced ways public and private actors intersect and rely upon one another more broadly in funding health entrepreneurship. Funders often assume basic science research, translated into commercial products, will increase life expectancy, ameliorate health outcomes, and create wealth. In some cases, they are absolutely right--clustered regularly interspaced short palindromic repeats' (CRISPR's) promise in eliminating sickle cell disease provides one such example. Technological innovation in health care is often deemed mission critical and looked to as the sole means of improving human health. This focus on high-technology innovations means that low-technology, lower-cost, more equity-focused innovations often receive less attention and funding. Little thought is paid to those left behind by technological innovation and its impact on overall health equity.

Despite its flaws, technology-focused health care innovation illustrates the important role that small businesses play in pushing health care innovation forward. This Article posits that appropriate health-equity-focused incentives can lead to the introduction of high-impact, low-technology (low-tech) innovations anchored in small businesses. These low-tech innovations, it posits, can reduce disparities. To do so, any incentive program must acknowledge the complexity and risks of entrepreneurship and structural barriers to entry for groups experiencing health disparities. A basic assumption of this model is that the individuals most impacted by health disparities are also the most likely to understand their impact, community needs, and individual experiences connected to differential health outcomes.

This Article focuses on the intersection of private ordering and public good. Private actors and government institutions have good reason to invest in low-tech innovations in health to eradicate disparities. The return on investment includes job creation, increased understanding and overall improvement of population health, and long-term economic returns related to overall increases in health. Both democratic institutions and private actors have a role to play in correcting health care disparities. Government responsibility is based on its call to serve all citizens. On the private side, research institutions and health systems, often receiving government funding, acknowledge their abuse of marginalized populations and its long-term impacts on their health and trust in health care systems. This creates a moral responsibility on their behalf to correct these historic wrongs, but it is increasingly clear that they either cannot or will not do so alone.

This Article supplies a model of health equity entrepreneurship illustrated through a case study assessing the role small firms should play in mitigating maternal mortality incidence. Maternal mortality disparities are one area in which supported health equity entrepreneurship can and should directly impact such disparities, with private ordering augmenting other efforts to advance health equity through more traditional public law efforts. Other areas in which to consider the role of small entrepreneurs in mitigating health disparities are as vast as the disparities themselves and could reach to diagnosis and treatment of prostate cancer, the process and evaluation of organ transplant allocations, and Alzheimer's-disease-related mitigation.

While this Article is primarily focused on the work of midwives, it does not discount the important role that doulas play in ongoing efforts to mitigate racial disparities in maternal care as health equity entrepreneurs themselves. Creating equitable health care systems and outcomes will require a broad coalition and innovative solutions that intersect with and reinforce complementary efforts. Doulas and midwives are an example of such a framework, as both play a role in ameliorating Black and American Indian maternal mortality and morbidity statistics.

Doulas are appropriately recognized for the role that their work plays in improving maternal health outcomes. A doula's primary role during labor, birth, and the postpartum period is to provide critical support to women and families. Like midwives, doulas are certified professionals, though professional nurse midwives require a higher level of certification and education than doulas. Certification is available through numerous organizations, including DONA International, the Childbirth and Postpartum and Professional Association (CAPPA), Lamaze, Bradley, and the International Childbirth Education Association (ICEA). ICEA, for example, offers two pathways to certification, one for experienced doulas and another for new entrants. Training covers client engagement, labor as a process, comfort measures, dealing with unusual circumstances, and business-related matters.

Doula health equity entrepreneurship also deserves greater support. Doula entrepreneurs face obstacles similar to midwife entrepreneurs, including ensuring payment for services by insurers, which is necessary to build a market for their services. Black and American Indian doulas also face similar barriers to lending to start and maintain small businesses as Black and American Indian midwives do, but they generally require less capital to get off the ground. Concerns regarding capital reflect the critical role it plays in the success of existing small firms and new businesses. Members of the U.S. House of Representatives proposed federal legislation requiring coverage of doula care through Medicaid in early 2021; representatives introduced legislation focused on diversifying the perinatal workforce the same year. That legislation, however, does not consider the entrepreneurial support necessary to create a diverse birth workforce that includes both doulas and midwives who can serve the vast and growing swaths of the country deemed maternal care desserts, which thrive in urban and rural communities alike.

The fact that both midwife and doula entrepreneurs encounter the same barriers to work in health equity attests to the need for a health equity entrepreneurial framework, such as the one presented in this Article. This Article presents a health equity entrepreneurship model through the lens of midwifery. Midwives can provide a full complement of perinatal care, though state laws can limit their ability to provide the full scope of care within their abilities. Basic perinatal care is becoming increasingly and critically compromised across the country. In these maternal care deserts, doulas are not able to provide the valuable complementary care they are known for because the basic care that serves as a foundation for their supportive services is inaccessible. Similarly, many technologically innovative tools can only complement care.

Technological innovation is and should provide a complement to low-cost, high-value, non-technological or low-tech innovation in health care delivery; the two should work in concert. This requires federal health agencies, private research institutions, and private citizens to recognize technological innovation's limits, including the ways that limited access to basic care undermines such innovations' effectiveness. In fact, technological innovations in health care can often exacerbate existing health-related inequities and disparities. Princeton sociologist Ruha Benjamin's first work, The People's Science, explores these themes. This Article aims to integrate small-firm entrepreneurship into that work, recharacterizing well-understood but underutilized practices as important low-tech innovations.

The framework presented in this Article requires further exploration in future work. The argument should not be seen as limiting the need for the creation of hospitals in care deserts. This Article buttresses a reproductive justice framework of health care delivery to ensure that all individuals have choices in the care they are able to access, regardless of their location. For some women, that will mean care under a midwife outside of a hospital, and for others, it will mean obstetric care in a hospital setting; others will seek the care of midwives within hospital infrastructure. Options regarding reproductive care should be available to all women at all times. Health care systems have known for decades that maternal mortality and morbidity for Black women is pervasive. They have done little to correct it. Because of that, reproductive justice is a foundational pillar in the framework presented.

Access to the capital needed to create the system this Article advocates for is the second challenge, especially given recent legal challenges to programs focused on providing resources to small business owners who are women, people of color or both. Small businesses access capital through traditional bank lending, home equity, friends and family, and other informal networks. Tech companies and start-ups often access private capital through venture and angel funders or networks that can be more difficult to access. This system creates difficult, but not insurmountable, barriers to capital access, especially for Black and American Indian and Alaska Native women. Public law systems that attempt to remedy inequitable funding allocations within existing systems, including through the United States Small Business Administration, are regularly met with swift legal action. Recently, many of those challenges have led to injunctive relief for plaintiffs--often White men seeking access to these resources. Federal courts struck down the Paycheck Protection Program's attempt to ensure access to capital funds for people of color and women during COVID-19, ruling that preferential treatment of applicants of color and female applicants was unconstitutional. That decision is one of several federal court decisions in the last several years that have sought to prohibit government programs that attempt to provide support to groups directly harmed by racial and gendered animus. The plaintiffs in these cases have filed suits challenging programs (i) implementing corrective measures to remedy poor implementation of previous remedial programs and (ii) to remedy what they deem imbalances in access to funds and non-economic small business assistance. This Article argues that ensuring capital flows to marginalized entrepreneurs focused on improving health requires reimagining the role of banks and other private actors to push this work forward and the ways investors characterize and understand return on investment for these endeavors.

Even the most well-intentioned and well-structured systems can be subject to fraud and other forms of abuse, especially those that provide money. This is true in both public and private markets. While this Article does not attempt to proactively correct for such abuses, it recognizes that these risks must be managed in any system. Fraud and abuse are present in the current U.S. health care system. Considerable federal resources are allocated to prosecute and fine individuals and companies found to be violating those laws.

This Article starts by providing a theoretical framework for health equity entrepreneurship. Part I provides an overview of racial disparities in maternal mortality and morbidity, borrowing from the work of legal scholar Khiara Bridges. Part II engages in a brief exploration of the limits of technological tools and innovations in ameliorating health. Part III situates midwifery as a necessary antecedent to the deployment of technological innovation in remedying the mortality crisis and as a U.S. health care innovation. Finally, the Article considers possible incentive structures and mechanisms through which private and public actors can be urged to engage and fund health equity entrepreneurs and entrepreneurship. The novelty of this Article lies in its exploration of incentives and small-firm entrepreneurship as a basis for complementary efforts necessary to eradicate health care disparities and inequities and as a means to empower historically medically underserved communities to spearhead this work.

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Small businesses cannot single-handedly correct for the ultimate causes of health disparities affecting historically medically underserved communities in the United States. For Black Americans and American Indians, there is strong evidence that the ultimate causes of these disparites include a long history of racism, both internal and external to health care systems. Small businesses can and should be utilized in correcting inequities where there are identifiable causes entrepreneurs can remedy in the short term. Exploration of health-equity-based entrepreneurial models and infrastructure that include incentives should become central to mitigation efforts. Structured incentives ensure entrepreneurs can create access to care and other solutions. These incentives can additionally aid in the validation of low-cost innovative interventions and understanding of physician-patient mismatch in maternity care. Once validated, the model should be incorporated more widely and quickly, incorporating lower-cost, non-technological innovations in care to complement technological innovation.

Small businesses play an important role in the American economy and have been relied on in creating public benefits, from COVID-19 vaccines to orphan drugs. Private firms have been prompted to do so through the creation of public and private incentive-based programs. There is no reason to believe the same cannot mitigate health disparities. Private and public actors can each play a role in incentivizing health equity entrepreneurship. Mitigation of disparities serves the interests of health care systems, payors, and individual and community health, reducing overall costs of care. Incentives should aim to engage members of the communities most burdened by disparities as the entrepreneurs correcting for these inequities because they understand the disparities best. The framework should also acknowledge their limited ability to access resources necessary to start and maintain businesses.

To be effective, such programs must provide appropriate incentives for health equity entrepreneurs that combine financial and non-financial supports. Financial components must focus on reasonably anticipated costs of entry into markets and ongoing supports to ensure access to services for communities. Payor compensation structure is essential to factor into calculation of economic and non-economic supports. Appropriate non-financial incentives can aid navigation of complex regulatory structures and the risks and pitfalls of entrepreneurship more generally. Taken together, these structures can provide communities burdened by health disparities the opportunity to correct for them.

These incentives must be coupled with appropriate oversight and data collection structures that allow for ongoing review of programs and their impacts on health outcomes and patient and practitioner experiences. While this piece focuses its case study on application of health equity entrepreneurship to midwifery-based maternity care, the basic model and its rationale are applicable to many other health disparities. Each merits its own nuanced consideration and reimagining of health equity entrepreneurship as a basis through which to correct for long-standing problems affecting the health of women and people of color who are and have been medically underserved in this country. This Article hopes to begin to construct a portion of that discourse.

Thomas Wilson Williams, J.D., M.BE (Bioethics), is an Assistant Professor of Law at American University Washington College of Law.