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Excerpted from: Mary Crossley, Black Health Matters: Disparities, Community Health, and Interest Convergence, 22 Michigan Journal of Race and Law 53 (Fall, 2016) (246 Footnotes) (Full Document)


MaryCrossley“Black Lives Matter” has grown from a social media trend, to a protest chant, to an organized movement. Originating as a call to action after the justice system acquitted the killer of seventeen-year-old Trayvon Martin in 2013, it has become the rallying cry for protests against state violence against Blacks, and against racism in U.S. society. It has inspired various collective actions protesting racial injustice, including a series of “die-ins” staged by medical students across the country in December 2014. Those students recognized the impact of police brutality on the health and lives of Black people and framed it as a public health issue.

Some medical student activists went further, connecting protests about institutional racism in law enforcement to concerns about bias and racism in medicine. The medical academy soon joined in. Editorials and opinion pieces in leading medical journals, such as the New England Journal of Medicine (“NEJM”) and the Journal of the American Medical Association (“JAMA”), called for renewed focus on addressing persistent racial disparities in health and health care, and highlighted potential areas for physician intervention.

Racial health disparities were not a new discovery for these journals in 2015. In 1985, the Heckler Report, a report by the federal government's Task Force on Black and Minority Health, shone a light on the existence of health and health care disparities. That same year, the NEJM published research on disparities in childhood mortality. Five years later, JAMA published a report by the American Medical Association's Council on Ethical and Judicial Affairs, decrying treatment disparities as unjustifiable and calling for their elimination. In the three decades since the medical profession and the federal government first formally acknowledged racial health disparities as an issue, policymakers, researchers, and health professionals have devoted significant and sustained attention to the problem. Researchers have identified racial health disparities, unpacked their causes, and tracked their trajectories. In that time, however, health disparities have not been eliminated, or even significantly reduced.

The sluggish progress of efforts to eliminate racial health disparities justifies frustration and the sense that little has changed in three decades. Recent developments in the health system landscape, however, provide renewed hope and new avenues for elimination of those disparities. The passage of the Affordable Care Act (“ACA”) in 2010 introduced systemic reforms in health care, including provisions meant to reduce disparities. Recent and projected changes in how providers are paid for health care emphasize the quality and value of care, seeking to supplant the traditional focus on volume as the basis for payment. Increasingly, health equity--the absence of unjust disparities emerging as a critical aspect of quality, suggesting the potential value of leveraging reimbursement methods to apply pressure for more equitable care.

This Article examines how the intersection of a new requirement for tax-exempt hospitals under the ACA and value-based payment reforms creates a new avenue for addressing disparities. Specifically, it argues that the ACA's creation of the Community Health Needs Assessment obligation (“CHNA”) for tax-exempt hospitals could play a valuable role in reducing health disparities in local communities by making hospitals aware of how their financial interests align with the interests of advocates and Black community members seeking to reduce health disparities.

The CHNA requirement calls for tax-exempt hospitals to regularly assess the health needs of their communities and implement strategies that respond to those needs, and makes this process a condition of federal tax-exemption for the hospitals. Internal Revenue Service (“IRS”) regulations implementing this requirement direct hospitals to solicit and consider input on needs from minority communities and encourage partnerships with community-based organizations to address community health needs. Given these instructions, infusing an emphasis on tackling disparities into this new obligation seems an obvious strategy for reducing disparities.

However, nothing in the ACA or the regulations implementing the CHNA requirement requires tax-exempt hospitals to focus on disparities in their communities as they conduct their CHNAs; the hospitals are free to focus instead on other types of health needs. Preliminary reviews of hospitals' initial compliance with the new requirement suggest that, in fact, most hospitals paid little attention to disparities. Some hospitals, however, did complete their assessment process with an eye to health equity and are deliberately pursuing strategies to respond to the disparities they found in their communities. This preliminary evidence of how hospitals are complying with the CHNA requirement raises a question: Why, given the significant regulatory flexibility hospitals enjoy in assessing health needs, should hospitals choose to pay serious attention to racial disparities? What could prompt hospitals to seize the opportunity to make progress toward racial health equity in their communities?

Few think that any easy fix exists for racial disparities in health and health care. Racial justice has never come easily in the United States. But Professor Derrick Bell, one of the pioneers of the Critical Race Theory movement, theorized that steps towards racial justice are most likely to occur when those steps also advance the self-interest of the White majority. Bell originally developed the theory to describe how White interests during the Cold War explained the Supreme Court's decision in Brown v. Board of Education, holding racially segregated public schools unconstitutional. As applied to efforts to reduce racial health disparities, this interest-convergence theory suggests that health care providers and payers will embrace disparity-reducing efforts when their economic interests converge with the health justice interests of Blacks and other minorities. The increasing prevalence of value-based, rather than volume-based, methods of paying for health care is shifting providers' incentives and creating more reasons for them to invest in improving community health. Accordingly, hospitals may face scenarios where efforts to advance health equity in their communities can also yield financial benefits to the hospital.

Consequently, this Article argues that, because the CHNA requirement creates a potentially powerful catalyst for the convergence of interests between hospitals and health justice advocates, the time is ripe to involve hospitals as meaningful partners in efforts to address instances of health inequality in their communities. Because relatively few hospitals to date have recognized this potential for convergence, further action is needed to make the alignment of interests clearer. Community and health justice advocates, the federal government, and researchers all have critical roles to play in forging this convergence of interests so that this opportunity is not wasted.

This Article proceeds as follows:

Part I briefly describes the problem of racial health disparities in the United States, emphasizing how deeply embedded, damaging, expensive, and enduring those disparities are.

Part II delves into Professor Derrick Bell's interest-convergence thesis and preliminarily considers its potential application to engaging hospitals as partners in reducing racial health disparities.

Part III describes what the CHNA requirement obliges hospitals to do and how the regulations implementing that requirement makes it a tool well-suited for identifying and addressing disparities; it also examines evidence suggesting that, in their initial efforts to comply with the CHNA requirement, most hospitals have not paid much attention to disparities.

Part IV returns to the interest convergence theme, making the business case for hospitals to invest in disparities-reduction programs and providing examples of interventions that could simultaneously reduce disparities and provide hospitals with a financial return on their investment. Acknowledging that many hospitals have not yet recognized their self-interest in combating disparities,

Part V identifies three avenues for action--by health justice advocates, federal regulators, and researchers--that could help foster interest convergence and thus encourage hospitals' engagement in efforts to address health disparities.

. . .

Health disparities represent a significant strand in the fabric of racial injustice in the United States--a strand that has proven exceptionally durable. Despite the investment of many millions of dollars, three decades of research and programming have produced only limited progress in narrowing the health gap between Whites and racial and ethnic minorities. Those disparities embody the devaluation of Black health that parallels the devaluation of Black lives.

According to Professor Derrick Bell, opportunities to advance racial justice may be greatest when interests in racial progress converge with the interests of the powerful majority. The ACA's new CHNA requirement and the movement in health care toward value-based payment methods may produce such a convergence of interests between advocates for racial health justice and tax-exempt hospitals. The CHNA requirement provides health justice advocates with an opportunity to engage hospitals as valuable partners in efforts to reduce racial health disparities by appealing to hospitals' financial interests in an evolving health care landscape. Community health advocates, researchers, and the federal government should all help to “forge fortuity” so that this opportunity for measurable progress toward eliminating racial health disparities is not wasted.

Professor, University of Pittsburgh School of Law.