Black Health Matters: Disparities, Community Health, and Interest Convergence

Mary Crossley October, 2016

Health disparities represent a significant strand in the fabric of racial injustice in the United States, one that has proven exceptionally durable. Many millions of dollars have been invested in addressing racial disparities over the past three decades. Researchers have identified disparities, unpacked their causes, and tracked their trajectories, with only limited progress in narrowing the health gap between whites and racial and ethnic minorities. The implementation of the Affordable Care Act (ACA) and the movement toward value-based payment methods for health care may supply a new avenue for addressing disparities. This Article argues that the ACA’s requirement that tax-exempt hospitals assess the health needs of their communities and take steps to address those needs presents a valuable opportunity to engage hospitals as partners in efforts to reduce racial health disparities. Whether hospitals will focus on disparities as they assess their communities’ health needs, however, is uncertain; preliminary reviews of hospitals’ initial compliance with the new requirement suggest that most did not. Relying on Professor Derrick Bell’s interest-convergence theory, this Article explores how hospitals’ economic interests may converge with interests in racial health justice. It presents two examples of interventions that could reduce disparities while saving hospitals money. The Article closes by identifying steps that health justice advocates, the federal government, and researchers should take to help, in Professor Bell’s words, “forge [the] fortuity” of interest convergence between hospitals and advocates for racial justice, and lead to progress in eliminating racial health disparities.

Introduction

“Black Lives Matter” has grown from a social media trend, to a protest chant, to an organized movement.¹ 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.² It has inspired various collective actions protesting racial injustice, including a series of “die-ins” staged by medical students across the country in December 2014.³ Those students recognized the impact of police brutality on the health and lives of Black people and framed it as a public health issue.⁴

Some medical student activists went further, connecting protests about institutional racism in law enforcement to concerns about bias and racism in medicine.⁵ 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,⁶ and highlighted potential areas for physician intervention.⁷

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.⁸ That same year, the NEJM published research on disparities in childhood mortality.⁹ 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.¹⁰ 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.¹¹ 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.¹²

The sluggish progress of efforts to eliminate racial health disparities justifies frustration and the sense that little has changed in three decades.¹³ 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 2010¹⁴ introduced systemic reforms in health care, including provisions meant to reduce disparities.¹⁵ Recent and projected changes in how providers are paid for health care emphasize the quality and value¹⁶ of care, seeking to supplant the traditional focus on volume as the basis for payment.¹⁷ Increasingly, health equity—the absence of unjust disparities¹⁸—is emerging as a critical aspect of quality, suggesting the potential value of leveraging reimbursement methods to apply pressure for more equitable care.¹⁹

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 taxexemption for the hospitals.²⁰ 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.²¹ Given these instructions, infusing an emphasis on tackling disparities into this new obligation seems an obvious strategy for reducing disparities.²²

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.²³ 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.²⁴ 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,²⁵ theorized that steps towards racial justice are most likely to occur when those steps also advance the self-interest of the White majority.²⁶ 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 interestconvergence 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.

I. Racial Health Disparities: Pervasive, Pernicious, Pricey, and Persistent

Much has been written about racial health disparities in the United States.²⁷ It is not this Article’s purpose to recount or summarize the full extent of the disparities in access to care, health indicators, and health outcomes that research has shown to exist. Instead, this Part of the Article describes briefly how those disparities are pervasive, pernicious, pricey, persistent, and impervious to legal remedy. Sketching the scope of disparities, their causes and effects, their financial cost, and their resistance to remedy sets the stage for considering the value of using a provision of the ACA to enlist hospitals as partners in reducing racial disparities.

A. Pervasive

Health inequality for Black people and other minorities is pervasive—it permeates measures of health care access, health status, and health outcomes. Disparities exist across the life span. At the beginning of life, Black babies are far more likely than White babies to be low birth-weight and to die before reaching their first birthday.²⁸ At the end of life, Blacks are less likely than Whites to choose hospice care or execute advance directives, often as a result of a “toxic distrust of the health care system.”²⁹ They also appear less likely to receive palliative care at the end of life, resulting in increased suffering.³⁰ Moreover, the years spanning those two points are fewer for Blacks than for Whites: life-expectancy for Whites exceeds that for Blacks by more than four years,³¹ according to data published in 2014. Many disparities persist even when researchers compare groups that have similar socioeconomic status.³²

Furthermore, disparities exist on various matters of life and death: Black women are more likely to die from breast cancer than White women,³³ and Black men are more likely to die from low-risk prostate cancer.³⁴ They also infect seemingly mundane aspects of medical care: Black patients spend more time traveling to, and waiting for, medical care than Whites.³⁵ A recent article in JAMA succinctly captures the range of disparities: “In the United States, compared with [W]hite individuals, [B]lack individuals have earlier onset of multiple illnesses, greater severity and more rapid progression of diseases, higher levels of comorbidity and impairment through the life course, and increased mortality rates.”³⁶

B. Pernicious

“Pernicious” describes both the causes and the effects of the health disparities that Blacks experience. Although researchers often seek to control for non-biological factors, such as socioeconomic factors and insurance coverage, to try to isolate a purely biological explanation for racial health disparities,³⁷ wide agreement exists that social determinants contribute significantly to health disparities.³⁸ Lower incomes, less schooling, higher unemployment, and residential segregation in poorer neighborhoods³⁹ all contribute to Blacks’ poorer health.⁴⁰ These social determinants of health are the products of racial discrimination in housing, employment, and mortgage lending, and of continuing institutional and structural racism in the United States.⁴¹ Another contributor to disparities is the disproportionate incarceration of Blacks and the resultant post-incarceration civil restrictions, which adversely affect the health of the offender and his family.⁴² Furthermore, racism can also harm health in stealthier ways. Mounting evidence indicates that simply being Black in a country where racism remains a powerful force can negatively affect one’s health.⁴³ Both the increased stress resulting from experiencing discrimination⁴⁴ and the experience of “stereotype threat”⁴⁵ in clinical settings have been shown to affect health.⁴⁶

Medicine, medical research, and public health have their own distinctive histories of racism and bias.⁴⁷ In making the case for reparations for Black health disparities, Kevin Outterson details the history of unequal and biased health care, typified by segregation and neglect, provided to Blacks from slavery until the present.⁴⁸ The infamous Tuskegee Syphilis Study exemplifies the continued instrumental use of Black bodies by the public health and medical elite, but it is far from the only example.⁴⁹ More recently, the landmark 2003 Institute of Medicine Report, Unequal Treatment: Confronting Racial and Ethnic Disparities in Health Care, found compelling evidence that providers’ racial bias, discrimination, and stereotyping contribute to treatment disparities.⁵⁰ Research demonstrates that physicians are subject to implicit bias,⁵¹ and leaders within the profession have begun highlighting the importance of addressing clinicians’ implicit bias as a means of addressing disparities.⁵² A 2016 study found that half of a sample of White medical students and residents held false beliefs about biological differences between Blacks and Whites, which contributed to racial bias in pain assessment and treatment recommendations.⁵³

Not only are the causes of racial health disparities pernicious, so are their effects. Most obviously, disproportionate rates of morbidity and mortality exact a human toll. In 2005, former U.S. Surgeon General David Satcher estimated that eliminating the mortality gap between Whites and Blacks would prevent more than 83,000 premature Black deaths each year.⁵⁴ Other, less obvious, effects on the social and political fabric also flow from pervasive health disparities. The Ferguson Commission’s 2015 report identified racial disparities in life expectancy and health care as factors contributing to racial unrest in Ferguson, Missouri.⁵⁵ Another recent study examined how higher mortality rates among Blacks decreased that group’s voting population, thereby lowering their influence in the political process.⁵⁶ Similarly, because Blacks as a group have a shorter life expectancy than Whites, they receive less value from participation in the Social Security system.⁵⁷ Fundamentally, because poor health presents challenges to educational attainment⁵⁸ and employment,⁵⁹ health disparities feed back into and reinforce lower socioeconomic status in a vicious cycle. In another vicious cycle, Blacks’ experience or awareness of discrimination in the health care system and medical research may result in mistrust, making them less likely to seek care or adhere to recommended treatment.⁶⁰

C. Pricey

Beyond their implications for social justice, racial health disparities also exact a heavy financial toll on society.⁶¹ One frequently cited study found that nearly a third of direct medical expenses incurred for African Americans, Asian Americans, and Hispanics were excess costs resulting from health inequalities.⁶² According to a recent study on the cost of disparities from 2003-2006, eliminating racial health disparities would have permitted a reduction of $229.4 billion in direct medical expenditures over a three-year time period.⁶³ The cost of those racial disparities grows much higher —more than one trillion dollars —when researchers include indirect costs associated with lost work productivity, illness, and premature death.⁶⁴ An earlier study estimated that disparities experienced by Medicare and Medicaid beneficiaries alone cost the federal government $17 billion in a single year.⁶⁵

D. Persistent and Impervious to Legal Remedy

The recognition of health disparities actually has a long history. That history has barely been altered by laws intended to advance racial justice. More than a century ago, W.E.B. Du Bois documented that Blacks suffered from some diseases at higher rates than Whites.⁶⁶ Moreover, he posited that the differences did not reflect physical inferiority on the part of Blacks, but represented “an index of a social condition,”⁶⁷ meaning the result of social and economic conditions. Nearly three-quarters of a century later, the government started paying attention to racial disparities, when the Heckler Report highlighted the extent of health and health care disparities for racial and ethnic minority populations.⁶⁸ Shortly thereafter, articles about disparities began appearing in leading medical journals.⁶⁹

After generations of inattention, the government, nonprofit sector, and researchers began ramping up the resources devoted to identifying racial health disparities and their causes. Recent efforts have begun focusing on interventions to address those disparities.⁷⁰ In 2003, Unequal Treatment: Confronting Racial and Ethnic Disparities in Health Care confirmed the extent of the disparities and concluded that racial bias and discrimination are contributing factors. The federal government has included reducing or eliminating disparities among the nation’s central health promotion objectives in its Healthy People 2000, Healthy People 2010 , and Healthy People 2020 public health plans.⁷¹

In introducing the 1985 report that has come to bear her name, Secretary of Health, Education, and Welfare, Margaret Heckler, sounded optimistic: “It can—it should —mark the beginning of the end of the health disparity that has, for so long, cast a shadow on the otherwise splendid American track record of ever improving health.”⁷² But, despite many millions of dollars invested in research and programming and much attention (or at least lip service) by policy makers over the past three decades, we appear still to be far from the goal of health equity.⁷³ The Healthy People 2010 Final Review assessed a decade of progress made with respect to specific health condition objectives and found that “[a]mong 169 objectives with data for racial and ethnic groups, health disparities, on average, decreased for 27 objectives and increased for 25.”⁷⁴ Most findings regarding racial disparities in the 2014 National Healthcare Quality and Disparities Report , issued by the Agency for Healthcare Research and Quality, are similarly discouraging.⁷⁵ Disparities between Whites and Blacks showed little improvement (and in some cases deterioration) on both measures of access and measures of quality.⁷⁶ This evidence clearly shows that the Heckler Report did not mark the “beginning of the end” of health disparities, as Secretary Heckler had hoped.

Unfortunately, these disparities have persisted despite the enactment of civil rights laws aiming to eradicate racial discrimination. Because many health care actors receive funding from the federal government, Title VI’s prohibition of recipients of federal funding from discriminating on the basis of race, color, or national origin⁷⁷ was the part of the Civil Rights Act of 1964 that seemed most promising for advancing racial health justice. In reality, the passage of Title VI in 1964 and of Medicare in 1965 combined to advance the dismantling of racially segregated health care. Because Medicare’s creation produced a generous stream of federal payments flowing to hospitals, the hospitals’ desire to maintain their federal funding prompted the desegregation of hospitals throughout the South, without the need for lawsuits or enforcement actions.⁷⁸

In fact, the story of hospital desegregation provides an example of the interest convergence theory described in Part IV, by illustrating how attaching conditions to a massive federal funding stream can prompt hospitals to pursue actions advancing racial justice.⁷⁹ Indeed, hospitals’ rapid and uncontested desegregation—once they realized that desegregation was in their financial self-interest because of the risk of losing federal Medicare payments—provides some historical precedent for this Article’s assertion that self-interest may encourage hospitals’ contemporary efforts to reduce racial health disparities.

And desegregation in the 1960s translated into improvements in Black health in some communities.⁸⁰ For example, researchers have found that federally mandated hospital desegregation led to better access to hospital care for Black infants, contributing to a steep decline in the Black infant mortality rate in the succeeding decade.⁸¹ Any early promise of Title VI reducing disparities, however, has faded over the past few decades.⁸² As blatant and overt racial discrimination by providers largely receded from view, disparities persisted, partly as a result of more subtle discrimination, implicit biases, and built-in structural features of the health care system. Title VI has proven ineffective in addressing these causes of disparities, particularly after the Supreme Court held in 2001 that Title VI creates no private right of action for plaintiffs alleging disparate impact discrimination.⁸³ That holding left administrative enforcement as the sole legal mechanism for addressing cases where providers’ actions disproportionately burden racial minorities, and administrative enforcement has been tepid.⁸⁴ As Professor Dayna Bowen Matthew wrote in 2015: “The current state of affairs is this: Anti-discrimination laws are largely unenforced or unenforceable against health care entities, while an overwhelming body of empirical evidence makes clear that discriminatory practices in health care abound.”⁸⁵

A natural response to the foregoing description of how damaging racial health disparities are is to question why they have proven so durable. Given their human and economic costs and the amount spent to study them, why has progress toward eliminating those disparities been maddeningly slow? Applying Professor Derrick Bell’s interest-convergence theory to the problem of health disparities suggests a reason, namely that progress will occur only when addressing disparities advances the interests of Whites and others in power.

II. Racial Health Disparitiesand Interest Convergence

A. The Interest Convergence Theory

The interest of blacks in achieving racial equality will be accommodated only when it converges with the interests of whites . . . Racial remedies may . . . be the outward manifestations of unspoken and perhaps subconscious judicial conclusions that the remedies, if granted, will secure, advance, or at least not harm societal interests deemed important by middle and upper class whites. Racial justice — or its appearance — may, from time to time, be counted among the interests deemed important by the courts and by society’s policymakers.⁸⁶

Professor Derrick Bell, who helped lay the intellectual foundations for Critical Race Theory,⁸⁷ originally developed the theory of interest convergence to explain both why the Supreme Court decided Brown v. Board of Education as it did and why later school desegregation decisions retreated from Brown ’s commitments.⁸⁸ According to Bell, a combination of forces gave Whites pragmatic, and not simply moral,⁸⁹ reasons for ending state-sponsored school segregation. These forces included America’s efforts during the Cold War to demonstrate the superiority of a capitalist system to the developing world and the need to reassure Black World War II veterans that the principles they had fought for were not hollow— neither of which could be successful if American law continued to legitimate the second-class citizenship of Blacks. Similarly, the economic interests of Whites in stimulating the South’s industrial development favored the end of segregated public education.⁹⁰ Although Bell developed the interest convergence theory to explain school desegregation, he reckoned that it had general applicability for analyzing when courts would grant fourteenth amendment remedies to racial minorities and when advances in racial justice, more broadly, were likely to occur.⁹¹

Subsequent scholars have applied Bell’s insights to other decision makers and other racial justice issues. For example, legislative actions to abolish the death penalty can be framed as the product of interest convergence.⁹² Commentators have also considered the explanatory force of interest convergence theory in areas ranging from immigration reform,⁹³ to prison reform,⁹⁴ to college sports.⁹⁵ Although early applications of interest convergence theory tended to focus on public ( i.e., governmental) decision makers, recent commentary has applied the theory to electoral politics⁹⁶ and to private decision making implicating racial justice.⁹⁷

Bell’s insights regarding interest convergence, taken with later scholars’ extensions of the theory, provide a lens for considering potential alignments of interest regarding efforts to advance Black health and diminish disparities. As discussed, health disparities are costly on numerous levels, and awareness of how some of those costs fall on businesses, health care providers, and the government is growing. This Article argues that the ACA’s CHNA requirement for tax-exempt hospitals may provide a focal point for the convergence of White concerns about health care costs, productivity, and quelling social unrest with Black interests in health justice. This Article asserts that the CHNA requirement can be used to advance racial health justice and suggests further steps that will help foster that interest convergence.

In suggesting a pragmatic approach that is race sensitive without being race specific, an interest convergence approach to engaging hospitals as partners in addressing health disparities shares much in common with Professors Derrick Darby and Richard Levy’s advocacy for the value of “post-racial remedies.” Darby and Levy argue that remedies that seek solutions to continuing racial disparities in the United States without treating people differently based on their race are less socially divisive and more constitutionally sound (given current jurisprudence) than race-specific responses.⁹⁸ The backlash against the Black Lives Matter movement—perhaps best typified by the argument that “All Lives Matter” is more appropriate—makes this point particularly salient. The specific types of initiatives this Article suggests (reducing readmissions and using hospital violence intervention programs) entail hospitals targeting communities where costly disparities are concentrated, rather than targeting groups based on race.⁹⁹

To be sure, Bell originally presented the interest convergence theory as a way of understanding history, not as a strategy for effecting racial progress.¹⁰⁰ Indeed, part of Bell’s pessimism regarding the prospects of true racial equality in the United States grew from his recognition that —just as Blacks might make progress when their interest in racial justice converged with the interests of privileged Whites —ground could be lost when those interests began to diverge.¹⁰¹ Bell’s realism about the difficulty of progress toward racial equality, however, did not produce a sense of impotence. Instead, Bell recognized that Blacks should not simply appreciate the progress that occurs when interests converge, they should act to “forge fortuity” by making continued racial injustice costly to Whites.¹⁰²

B. Converging Interests in Addressing Racial Health Disparities? From an interest convergence perspective, the fact that Whites and

the health care industry have not recognized their self-interest in addressing racial health disparities may help explain the lack of progress. In short, the powerful elite has not yet felt harmed by the continuation of disparities. The remainder of this Article argues that the community health needs assessment (“CHNA”) requirement of the ACA holds the potential to make many hospitals aware of how addressing disparities in their communities could advance their own financial interests. By doing so, the CHNA requirement could catalyze a convergence of hospitals’ interests with the interests of health justice advocates.

III. The Affordable Care Actand Community Health Needs

A. ACA Provisions Ameliorating Disparities

Given how damaging and durable racial health disparities have been, it is unsurprising that the Affordable Care Act, a massive health reform legislation reaching into virtually every corner of the health care financing and delivery system, included numerous provisions meant to combat disparities, both directly and indirectly. Indeed, simply by extending health insurance coverage to millions of uninsured Americans through a combination of insurance market reforms, insurance purchase mandates, and publicly funded subsidies for low- and middle-income purchasers,¹⁰³ the law should lessen the racial disparity in insurance rates.¹⁰⁴

Less well-known parts of the ACA may also serve to decrease disparities. These measures include, for example, increased investments in community health centers (whose users are more racially and ethnically diverse than the low-income population overall),¹⁰⁵ increased funding for the National Health Service Corps to ease provider shortages in medically underserved areas with large minority populations,¹⁰⁶ and measures requiring all federally-supported health programs to collect and report data by race and ethnicity.¹⁰⁷ In addition, the ACA includes a broad civil rights measure that extends existing prohibitions on discrimination (including race, color, and national origin discrimination) to many more actors in the health care system.¹⁰⁸

Regulations implementing the new civil rights measure,¹⁰⁹ however, disappointed those who hoped it would support more robust and comprehensive enforcement of civil rights laws against health care financing and delivery practices that disadvantage communities of color. While the regulations expand the potential avenues for enforcement by permitting an individual to file a private suit alleging racially disparate impact,¹¹⁰ they fail to deal specifically with the types of subtle discrimination, implicit biases, or structural features that contribute to racial health disparities.¹¹¹

Without diminishing the importance of continuing advocacy for the effective implementation of the measures just described, this Article asserts that a provision of the ACA that is less often viewed as part of the reform law’s health equity arsenal could become a potent weapon to combat disparities. Specifically, the new requirement that tax-exempt hospitals conduct community health needs assessments (“CHNAs”) and develop and implement strategies to address the needs identified could spur hospitals to play meaningful roles in eliminating disparities in their communities.

B. The Community Health Needs Assessment Requirement

The majority of hospitals in the United States are organized as nonprofits and have received an exemption from paying federal taxes. Seeking to more clearly define the quid pro quo that hospitals must provide in return for the substantial financial benefit of tax exemption, Congress attached new strings to hospital tax exemption in the ACA.¹¹² One of the new conditions of tax-exempt status is the CHNA requirement. The statute specifies a series of steps for hospitals to follow. First, at least once every three years, a hospital must conduct an assessment of the health needs of its community, taking into account “input from persons who represent the broad interests of the community served by the hospital facility, including those with special knowledge of or expertise in public health.”¹¹³ Having completed the assessment, the hospital must make its report available to the public.¹¹⁴ The hospital must then adopt an “implementation strategy to meet the community health needs identified through such assessment.”¹¹⁵ By establishing this multi-step process, Congress demands that hospitals justify their tax-exemption by taking steps to respond to their communities’ health needs.

Understanding the significance of the new CHNA requirement requires a bit of background. Prior to the ACA, the Internal Revenue Service (“IRS”) had used a “community benefit” standard for hospital tax exemption for nearly fifty years, but it did not use any quantitative measures or issue concrete directives to establish benchmarks for exemption.¹¹⁶ After media coverage of some tax-exempt hospitals’ unsavory billing and collection practices prompted increased public and Congressional attention, however, the IRS took its first step toward increased accountability and transparency for those hospitals. In 2007, it introduced a mandatory reporting schedule specifically for tax-exempt hospitals (“Schedule H”) to capture information about their expenditures on community benefit activities.¹¹⁷ The picture that emerged from those reports confirmed the conventional wisdom in health policy circles that nonprofit hospitals’ reported community benefit expenditures most often involved charity care ( i.e., care for patients unable to pay in full for the hospitals’ services) or offsets for claimed losses from treating Medicaid patients.¹¹⁸ Thus, hospitals’ actions to satisfy the community benefit standard most often benefited individual members of the public who received care at the hospital, not the community as a whole.

The new CHNA requirement means that these established community benefit practices no longer suffice to justify hospital tax exemption. The new requirement thus has the potential to prompt a radical change in hospitals’ role in promoting health and in their relationship to their communities. The requirement encourages hospitals to become involved in not only the treatment, but also the prevention of ill health. It directs a hospital to shift its gaze outward, to engage with its surrounding community, and to consider how the hospital might play a role in meeting the health needs of that community—that group of people—and not simply the medical needs of individual community residents. In so doing, the CHNA requirement is part of a broader emphasis on public health and prevention in the ACA¹¹⁹ that, however modestly, moves the U.S. healthcare system and public health system toward integration.¹²⁰

C. The Potential Relevance of the CHNA Requirement to Disparities

In December 2014, after tax-exempt hospitals had already completed their inaugural CHNA, the IRS published final regulations (“Regulations”) adding flesh to the statute’s bones.¹²¹ Although a full description is beyond this Article’s scope,¹²² several aspects of the Regulations are particularly relevant to addressing disparities.

First, the Regulations clearly expect that communities experiencing health disparities should have a voice in the CHNA process. Fleshing out the statute’s requirement of community input, the Regulations call for a hospital to solicit and take into account input from “[m]embers of medically underserved, low-income, and minority populations in the community served . . . or individuals or organizations serving or representing [their] interests . . . .”¹²³ The regulatory definition of “medically underserved populations” explicitly refers to disparities: they include “populations experiencing health disparities or at risk of not receiving adequate medical care as a result of being uninsured or underinsured or due to geographic, language, financial, or other barriers.”¹²⁴ The hospital must solicit input from these groups, and it must consider any input they actually provide in identifying and prioritizing the community’s needs, as well as in identifying resources potentially available to meet those needs.¹²⁵

Of course, before a hospital can seek input on health needs from the community it serves, it must decide what and whom that community encompasses.¹²⁶ The Regulations suggest the relevance of geography and target populations, but generally give hospitals significant leeway in defining their communities.¹²⁷ They are clear, however, that a hospital cannot cherry-pick its community: “[A] hospital may not define its community to exclude medically underserved, low-income, or minority populations who live in geographic areas from which the hospital draws its patients.”¹²⁸ In short, they cannot exclude the very populations most likely to have significant health needs or to experience disparities.¹²⁹

In describing the health needs a hospital should consider, the Regulations again refer to disparities. Allaying hospitals’ concerns that they might be expected to catalog exhaustively every health need existing in their communities, the Regulations clarify that hospitals must identify only “significant health needs.”¹³⁰ In so doing, a hospital can consider both the needs of its community as a whole and the needs of “particular parts of the community (such as particular neighborhoods or populations experiencing health disparities).”¹³¹ Once a hospital has identified significant health needs, it must prioritize them.

But what counts as a “health need”? Is the concept limited to conditions requiring the sort of medical response that hospitals are accustomed to providing to patients? The Regulations reject such a cabined conception of health needs, instead embracing a more expansive conception:

[T]he health needs of a community include requisites for the improvement or maintenance of health status. . . . These needs may include, for example, the need to address financial and other barriers to access care, to prevent illness, to ensure adequate nutrition, or to address social, behavioral, and environmental factors that influence health in a community.¹³²

Based on this description, social determinants of health—factors like the availability or absence of healthful foods, transportation options, living wages, and safe neighborhoods¹³³—are clearly among the health needs that hospitals should consider in their CHNAs. As noted above, these social determinants are often powerful contributors to health disparities. Thus, the Regulations clearly contemplate that hospitals can meet the obligations attached to tax-exempt status by working to address these social determinants and mitigate disparities.

Is it realistic to think that hospitals acting alone are equipped to affect these social determinants? A final aspect of the Regulations worth noting is their encouragement to hospitals to collaborate in assessing and addressing community health needs. Without requiring hospitals to collaborate (beyond the requirement to solicit and consider input, as described above) the Regulations strongly endorse hospitals’ working with others in their community in conducting the CHNA and pursuing related strategies. Potential collaborators might include health departments, other hospitals, community-based organizations, and businesses. The growing literature on advancing health equity highlights the value of collaborative approaches,¹³⁴ and the IRS’s encouragement gives hospitals a green light to pursue partnerships as they fulfill their new obligations.¹³⁵

Thus, as a whole, the Regulations’ explication of the CHNA requirement establishes it as a tool that could readily be used to address racial health disparities. The Regulations direct hospitals to seek and use input from medically underserved and minority populations in identifying and prioritizing the significant health needs of the hospital’s community, and they expressly prohibit hospitals from defining their communities in a fashion that excludes those populations. They do not confine hospitals to considering a narrow range of medical needs, but instead embrace a broad conception of health needs, encompassing social determinants of health that often contribute to health disparities. Finally, hospitals are encouraged to collaborate with others in their community throughout the process of identifying and responding to health needs.

Despite this rosy assessment of the CHNA requirement’s potential value, it remains uncertain whether many hospitals completing the CHNA process will pay any particular attention to racial health disparities in their communities. For one thing, nothing in the ACA or the Regulations requires hospitals to focus on disparities when they identify and prioritize community health needs. Even as the Regulations refer repeatedly to disparities and describe a process well suited to addressing disparities, they reserve a high degree of flexibility and discretion to hospitals for carrying out assessments and devising implementation strategies. Communities may well have many health needs that do not involve racial disparities, and under current law, hospitals can legitimately choose to focus on those needs in meeting this new obligation. In another article, I have recognized encouraging elements of the Regulations, but criticized the IRS for not pushing hospitals to “think big” about working with others to improve community health.¹³⁶ Ultimately, it remains up to a hospital to decide whether to prioritize disparities in addressing its community’s health needs.

D. Hospitals’ Attention to Disparities in the CHNA Process

The ACA’s CHNA requirement provides a new means for hospitals to identify health disparities in their communities and to pursue strategies to address them, but, thus far, how many have actually focused on disparities? This Section describes preliminary evidence on that question, which suggests that relatively few hospitals paid close attention to disparities. That evidence includes the report of a broad empirical evaluation of hospitals’ initial CHNA processes, and observations from a reviewing the CHNA reports of two states (Georgia and Pennsylvania). It concludes with accounts of several hospitals and hospital partnerships that did address disparities in conducting their CHNAs and, as a result, are participating in community health improvement initiatives to reduce particular disparities.

1. Public Health Institute Report

As part of a project to develop and test tools for comparing and evaluating CHNA reports, the Public Health Institute (“PHI”) conducted a pilot study of forty-four hospitals’ CHNA reports.¹³⁷ The resulting report , Supporting Alignment and Accountability in Community Health Improvement , is one of the most rigorous and in-depth reviews to date of hospitals’ inaugural efforts in completing the ACA’s CHNA requirement. The report suggests that a substantial majority of hospitals did not pay close attention to identifying or addressing health disparities in their communities.¹³⁸ The template used in evaluating reports with respect to disparities included questions relevant to disparities, even though that was not the project’s primary goal.¹³⁹ Specifically, researchers examined how hospitals defined their communities, whether and how they engaged community stakeholders, how they prioritized the health needs identified, and (for the hospitals that had posted implementation strategies on their websites) what areas their implementation strategies focused on.¹⁴⁰ The resulting report by PHI, Supporting Alignment and Accountability , includes several pertinent observations regarding hospitals’ attention to disparities as part of the needs assessment process.

First, all the hospitals studied defined their community based on their patient service area. In describing that area, though, fewer than a quarter of the hospitals identified particular communities where health disparities were concentrated.¹⁴¹ Some additional hospitals noted the existence of disparities in defining their communities, but failed to say where in the community those disparities existed.¹⁴² Other hospitals identified disparities elsewhere in the CHNA report (again, without locating them geographically). A quarter of the hospitals failed entirely to identify health disparities in their CHNA.¹⁴³ Thus, while a majority of hospitals noted the existence of disparities in their communities at some point in their CHNA reports, fewer than one in four drilled down in the data to determine where those disparities were concentrated.

Input from racial and ethnic minority members of a community is a rich resource for understanding the existence of disparities and identifying strategies for their reduction. The PHI’s review of how hospitals included community stakeholders in the assessment process revealed that most hospitals sought input either directly from people from racial or ethnic minority groups, or from representatives of those groups.¹⁴⁴ However, researchers could not determine from the CHNA reports whether the hospital provided meaningful opportunities to permit community members to help the hospital decide on the community’s most pressing health needs. In other words, it was not clear from the reports whether the hospitals simply went through the motions of consulting with diverse and disadvantaged community members or whether it actually engaged with them¹⁴⁵ to give them a real voice in the process. Moreover, only five hospital reports indicated that community members played a role in the hospital’s processes for prioritizing the needs identified and in developing strategies to address those needs.¹⁴⁶

Finally, in their implementation strategies, the hospitals in the pilot study focused primarily on strategies related to providing clinical care and incorporated few strategies related to social determinants of health.¹⁴⁷ Similarly, relatively few hospitals focused their strategies on the particular neighborhoods experiencing concentrated disparities.¹⁴⁸ Overall, the PHI Report found much room for improvement with respect to hospitals’ attention to disparities in the CHNA process and suggested how hospitals could improve their focus on areas of concentrated disparities, “where there are both the greatest needs and most significant potential to produce measurable outcomes.”¹⁴⁹

2. My Impressionistic Review of CHNA Reports

To develop my own sense of what hospital CHNA reports look like and to what extent they reference disparities, I reviewed CHNA reports from thirty-eight hospitals in Pennsylvania and Georgia, using a rubric that posed questions pertinent to each hospital’s solicitation and consideration of input from minority communities and its identification and prioritization of community health needs.¹⁵⁰ This admittedly limited and impressionistic review¹⁵¹ permits preliminary observations¹⁵² about the attention these hospitals seemingly paid to disparities when conducting their CHNA reports, and those observations were similar to the findings in the PHI Report.

The CHNA reports typically included data regarding the demographic make-up of their community, including the racial composition and prevalence of poverty. In addition, many reports provided data regarding the prevalence of different health issues in the community by different demographic groups, often in the form of tables presenting a range of data. However, it was unclear how (or whether) most hospitals used that information. Although many reports stated that the process included input from medically underserved or minority communities, few indicated specifically who provided input or which minority or underserved populations were represented. Fewer still described the content of any input received from those communities. Although a handful of hospitals provided a narrative discussing health disparities within their community and how the hospital might help address them,¹⁵³ most did not. Overall, these observations echo the findings in the PHI report and reinforce its conclusion that there is much room for improvement when it comes to hospitals’ engagement with community stakeholders and discerning disparities.¹⁵⁴

3. Hospitals Identifying and Prioritizing Racial Disparities

The previous two sections describe findings that suggest most hospitals did not pay much attention to racial disparities as they conducted their inaugural round of CHNAs. However, examples exist of hospitals (working either alone or as part of a collaborative partnership) that deliberately focused on the needs of underserved groups in their communities.¹⁵⁵ Although hospitals that emphasize health disparities in the CHNA are not currently the norm, their existence demonstrates the feasibility of such an effort. For example, four hospitals in the Lehigh Valley of Pennsylvania, an area that has had significant growth in its minority population over the past decade, sought community input by partnering with community-based organizations that were highly respected in the African-American and Hispanic communities. Doing so helped engage members of those communities, who had repeated opportunities to provide their ideas and perspectives and identify their health promotion priorities.¹⁵⁶ The fourhospital partnership responded by choosing to focus on health literacy, maternal and child health, and access to healthcare—three areas related to the communities’ priorities.¹⁵⁷

Other hospitals completing a CHNA in a disparities-attentive fashion have participated in broader collaborative partnerships that include local government and community-based organizations. For example, the hospital members of the Central Ohio Hospital Council partnered with civic, academic, health, and philanthropic organizations to develop Franklin County HealthMap 2013 , a health assessment that found the infant mortality rate for African-American infants in the county exceeded the rate for White infants threefold.¹⁵⁸ The Hospital Council then participated in Greater Columbus Infant Mortality Task Force, which was charged with reducing the overall rate of infant mortality by forty percent and cutting the racial gap in half by 2020.¹⁵⁹ The Task Force engaged community members to determine the underlying causes of high infant mortality rates and to gather ideas for interventions. In the resulting Implementation Plan, the Hospital Council is named as the “Lead Entity” for three separate strategies to reduce infant mortality rates.¹⁶⁰ This example demonstrates that, even when hospitals working alone may not be equipped to have a measurable impact on health disparities, they can play integral roles in broadbased initiatives.

A hospital need not be part of a broader partnership, however, in order to identify and respond to racial disparities as it complies with the CHNA requirement. A 2015 article describes how the H. Lee Moffitt Cancer Center in Tampa intentionally set about conducting its CHNA process so as to meaningfully address local health disparities.¹⁶¹ Its decisions included giving the Cancer Center’s diversity department responsibility for coordinating the CHNA, recruiting racial and ethnic minority community members to serve on an advisory committee, and using a social determinants of health framework in its data collection.¹⁶² Several of the assessment’s findings referred to disparities or the needs of underserved populations, and the Cancer Center’s Implementation Plan identified five priority areas for action, including health disparities and cultural competence.¹⁶³

4. What the Evidence Suggests

This initial evidence suggests that many hospitals may not be eager to highlight disparities in their communities or feel a responsibility for addressing matters they view as being beyond their bailiwick. This judgment is in line with a paper studying an early (pre-ACA) collaborative partnership of ten hospitals that received grant funding to develop and implement a project to reduce disparities in cardiac care.¹⁶⁴ Health system leaders interviewed for the study did not view health care disparities as an organizational priority for hospitals, and they tended to assume that the care their institutions provided to different populations was of equal quality. Fundamentally, they understood disparities as “essentially a problem of the social fabric, as opposed to one that, even in part, reflected inconsistencies or inequities in the way that health systems deliver care.”¹⁶⁵ Notwithstanding the failure of most hospitals to focus on disparities, however, the evidence also shows that some hospitals have decided to pay particular attention to the health needs of minority populations in their communities and to pursue strategies responding to the inequality that they find.

I acknowledge the limitations of reviewing hospitals’ CHNA reports as a basis for discerning hospitals’ attention to disparities. These reports vary in their length (from a few dozen to a few hundred pages) and in the detail and sophistication with which they present a hospital’s processes and findings. As a result, it is often difficult, if not impossible, to assess with a high degree of confidence the extent to which a hospital’s processes actually considered racial inequality in treatment, status, or outcomes as possible community health needs.¹⁶⁶ Simply reading CHNA reports to determine whether a hospital paid attention to disparities may produce both false positives (findings that a hospital paid attention to disparities, when in reality the hospital paid lip service to disparities in its report but devoted no serious attention to the problem) and false negatives (findings that a hospital paid no attention to disparities, when in fact the hospital’s attention to the issue simply was not reflected in its report). Some hospitals may pursue strategies to reduce a disparity in their community, such as differences in cancer mortality rates, without labeling the problem as a disparity. Despite these limitations, the evidence here strongly suggests that, in the first round of CHNA reports under the ACA, some hospitals deliberately used the CHNA process to identify racial disparities in their community and devise ways to address those disparities, but many (and probably most) hospitals did not.

IV. Interest Convergence and the Business Case

for Addressing Disparities

The preceding Part describes the apparent failure by most hospitals to pay careful and deliberate attention to racial health disparities in conducting their initial CHNA under the ACA. In considering this failure, the question naturally arises: Why would hospitals focus their attention on identifying and addressing racial health disparities? Hospitals typically have viewed their primary mission as providing clinical care to patients and are often inexperienced with community health initiatives.¹⁶⁷ The ACA requires that they complete a CHNA every three years in order to retain their tax exemption, but it does not require them to pay particular attention to disparities in doing so. Given these factors, hospitals’ lack of attention to disparities is hardly surprising. Returning to the concept of interest convergence, this Part identifies a reason for hospitals to focus on disparities, arguing that initiatives that reduce racial disparities may sometimes be in hospitals’ financial self-interest. Particularly as payment methods emphasize quality and health promotion, hospitals may be able to improve their financial positions by identifying and responding to disparities in their communities.

A. The Business Interest in Addressing Disparities

In light of the enormous financial costs of racial health disparities,¹⁶⁸ the general economic rationale for tackling racial health disparities is apparent. Certainly the federal government, as the single largest payer for health care,¹⁶⁹ would benefit financially from eliminating health disparities.¹⁷⁰ But might private parties also find their economic interests advanced by disparities’ elimination?

In fact, some employers and health plans have demonstrated an interest in finding ways to decrease disparities. Their interest, reflected in a number of reports, represents one aspect of a broader conversation regarding the “business case” for improving health care quality¹⁷¹ and community health.¹⁷² As the non-White segment of the workforce and insurance pools grows, employers and health plans can reap benefits by ensuring that this population does not receive poorer quality or less appropriate care. For example, a report from the Alliance of Community Health Plans Foundation identified business benefits “in many different areas such as equity, efficiency, quality and reduction of medical errors” that health care organizations could achieve when they follow standards regarding culturally and linguistically competent care.¹⁷³ Similarly, a report from the National Business Group on Health highlighted that the costs of unequal health care include employee disability and premature death, costs borne in part by employers. That report asserts that “[b]y addressing health disparities . . . employers stand to benefit in both direct and indirect ways.”¹⁷⁴

B. A Business Case for Hospitals to Reduce Disparities?

But what about hospitals? Does a “business case” exist for hospitals to undertake initiatives addressing racial health disparities in their communities? Unlike employers and health plans, hospitals do not typically have ongoing relationships with patients experiencing health disparities, so efforts to diminish disparities and thereby improve patients’ health status and functioning over the long haul do not offer hospitals the same sort of benefits accruing to employers and health insurers.¹⁷⁵ Instead, hospitals’ business interest in their patients revolves primarily around whether and how they are paid for the care they provide.

Forecasts of fundamental shifts in how hospitals are paid suggest that hospitals’ financial health will increasingly depend at least partly on their communities’ health. In simple terms, health insurers (most notably, but not exclusively, the federal government) are moving from volume-based reimbursement systems to value-based reimbursement systems.¹⁷⁶ An increased payer focus on quality of care and health outcomes is prompting the hospital industry to adopt a new focus on population health and health promotion.¹⁷⁷ In recent years, the American Hospital Association appears to have “found religion,” embracing the importance of hospitals’ promoting health:

As delivery and reimbursement systems change to incentivize keeping patients healthy and out of the hospital, the hospital field must be looking at a holistic approach to care, prevention needs to be front and center, and more than just hospitals and the health care system will be needed to impact change. Our focus should be on determinants of health, not just health care or hospital care.¹⁷⁸

The growing focus on value-based reimbursement and attention to health promotion provide a foundation for asserting that disparities-reduction efforts¹⁷⁹ may sometimes align with a hospital’s financial self-interest.¹⁸⁰

If that is the case, then the financial interests of tax-exempt hospitals and the interests of racial health justice advocates may converge, permitting real progress in combatting health disparities. And the ACA’s requirement that hospitals regularly assess and respond to their communities’ health needs provides further impetus for hospitals to attend to how disparities affect their communities. Two examples—hospital efforts to lower readmission rates and curb violent injury recidivism—illustrate this potential interest convergence.

1. Lowering Hospital Readmission Rates

When a patient is readmitted to a hospital soon after being discharged, it often suggests that the hospital provided poor quality care during the initial hospitalization or failed to appropriately coordinate the patient’s post-discharge care.¹⁸¹ In addition to signaling poor quality care, readmissions cost payers large sums of money. For example, one study estimated that about 75 percent of patient readmissions were potentially preventable and that the Medicare program paid $12 billion annually for potentially preventable readmissions.¹⁸² Moreover, researchers have documented that minority patients who suffer chronic conditions are more likely to be readmitted.¹⁸³ These facts suggest that taking steps to lower readmission rates could potentially save health insurers money and, by improving the quality of care provided to minority patients, also decrease the disparity in readmission rates.

The federal government, which pays for nearly 60 percent of hospital admissions in the United States, through the Medicare and Medicaid public insurance programs,¹⁸⁴ has a particular interest in lowering readmission rates. The ACA furthered the government’s dual interest in saving money and improving quality by authorizing the Hospital Readmissions Reduction Program (“HRRP”), which imposes financial penalties on hospitals whose readmission rates for Medicare patients are relatively high.¹⁸⁵ The HRRP program effectively shifts some of the costs for excessive hospital readmissions from the federal government to hospitals themselves and thus creates incentives for hospitals to take steps to lower their readmission rates. With HRRP in place, hospitals’ incentives to lower readmissions becomes more concrete and may align with an interest in reducing racial disparities in their communities.

Recognizing that racial disparities exist in both the prevalence of certain chronic conditions and in hospital readmissions for patients with those conditions,¹⁸⁶ the Centers for Medicare and Medicaid Services (“CMS”) has developed guidance to assist hospitals in targeting improvements to those populations.¹⁸⁷ CMS’s Guide to Preventing Readmissions Among Racially and Ethnically Diverse Medicare Beneficiaries urges hospitals to develop strategies to respond to barriers that contribute to higher rates of readmission for minority patients and suggests the key components those strategies should include.¹⁸⁸ One of the case studies included in the guidance describes how a health system in Kentucky decreased admissions, length of stay, and readmissions—all yielding a 100 percent return on investment— by increasing the coordination of services for “super users” of care.¹⁸⁹ The health system used data to identify hospital patients at high risk of readmission. It then sent multidisciplinary teams on home visits to help discharged patients better manage health conditions and to provide medical and social support services.¹⁹⁰

This case study suggests that a hospital that discovers through its CHNA process that minority populations in its community experience a high level of readmissions or disproportionate barriers to quality care may be able to simultaneously address those quality issues and advance the hospital’s financial self-interest. Strategies for overcoming quality barriers, such as low health literacy, constrained socioeconomic resources, and multiple co-morbidities,¹⁹¹ may both improve the quality of care received by minority patients (reducing disparities associated with poor quality¹⁹²) and prevent readmissions (reducing associated penalties).¹⁹³ In short, a hospital’s attentiveness to disparities in the CHNA process may illuminate this potential interest convergence.

2. Lowering Violent Injury Recidivism

In a second example of potential interest convergence, a CHNA that identifies high rates of violent injury in a community may lead to the hospital’s developing a program that could both reduce health disparities and produce financial benefits to the hospital. In recent years, a growing number of hospitals have developed programs to provide persons who come to the hospital’s emergency department with a violent injury with services to prevent the patient from suffering similar injuries in the future.¹⁹⁴ A growing body of evidence suggests that these hospital violence intervention programs (“HVIPs”) are effective both in decreasing the number of patients who subsequently return to the hospital with another injury and in saving money for society and the hospitals.¹⁹⁵

The underlying concept for these programs is that the high incidence of violent injuries is a public health problem.¹⁹⁶ Moreover, this problem disproportionately affects racial and ethnic minority males who live in low-income neighborhoods.¹⁹⁷ In short, it is an instance of a racial health disparity that has been concentrated in urban areas.¹⁹⁸ HVIPs aim to address this public health problem by preventing patients who have suffered a violent injury from being re-injured and from responding to their injury by violently retaliating.¹⁹⁹ Based on the thinking that suffering a violent injury severe enough to result in hospitalization may present a teachable moment in a person’s life, the programs combine in-hospital engagement of patients with a range of community-based case management services provided after the patient’s discharge. The continuum of services seeks to promote psychological healing from the trauma and to decrease the risk of re-injury by addressing underlying risk factors like poverty, unemployment, and substance abuse.²⁰⁰

Evidence of HVIPs’ effectiveness and cost are beginning to accumulate. The research suggests that the programs are effective in decreasing the rates of violent re-injury, hospital readmission, and subsequent participation in criminal activity.²⁰¹ Early research also suggests that these programs represent a good investment, not only from a societal perspective, but also from the hospital’s perspective. Researchers comparing a hospital’s upfront costs of providing violence intervention services to the hospital’s cumulative costs of providing standard medical treatment and referrals to violent injury victims, as well as re-hospitalization costs for recidivist victims, have found that HVIPs are cost-effective interventions for hospitals.²⁰² In short, it appears to cost hospitals more to provide care for re-injured victims of violence than to provide violence intervention programs to help them avoid re-injury.

The growing recognition that, for hospitals, HVIPs are “good medicine and good business”²⁰³ suggests a potential convergence of interests with respect to hospitals in communities with high levels of violent injuries.²⁰⁴ Hospitals may save money over time by implementing a HVIP and, because data shows that violent injury victims are disproportionately minority men, HVIPs’ effectiveness in decreasing the risks of re-injury and retaliation also offers an evidence-based response to a health disparity. Thus, the health equity interests of minorities living in violence-plagued communities and the financial interests of hospitals serving those communities may converge. In this scenario, the CHNA requirement serves as an important catalyst for hospitals to recognize violent injuries as a health need in their communities and to take steps to address that need.

V. “Forg[ing] Fortuity”: Promoting the Convergence of

Hospitals’ Interests with Health Equity Aims

Thus far, this Article has described how the ACA’s new CHNA requirement for tax-exempt hospitals could, in theory, serve as a mechanism for hospitals to identify racial health disparities in their communities. In addition, the Article has considered how steps to remedy those disparities might advance a hospital’s financial self-interest in some instances. But, it also has recognized that early evidence of how hospitals have implemented the CHNA requirement indicates that this potential for interest convergence has not yet caused hospitals to pursue those steps. Based on this evidence, a convergence of interests leading to hospital actions that “move the needle” on disparities in their communities is not a sure thing. Part V identifies three avenues for action that could help, in Professor Bell’s words, “forge fortuity” in bringing about interest convergence. Specifically, it will identify steps that health justice advocates, federal regulators, and researchers should take to increase the likelihood that a convergence of interests will prompt hospitals to focus on disparities in their community health efforts. It concludes by acknowledging and responding to several potential objections to the Article’s reliance on interest convergence to address racial health disparities.

A. Health Justice Activism

One step that could foster interest convergence is for community health justice advocates to seek a seat at the table and a voice in the health needs assessment process. As discussed above, the Regulations detailing the CHNA requirement require hospitals to solicit input from minority and underserved communities and to take into account any input received as they assess and prioritize community health needs,²⁰⁵ thus providing a platform for advocates to press for the inclusion of health disparities as high-priority community health needs. These Regulations, however, do not specify any particular process that hospitals must use in soliciting or incorporating community input, and they implicitly recognize that a hospital unable to secure input from these groups may still proceed with the needs assessment process.²⁰⁶ As a result, some responsibility remains with community members to respond to (or even seek) invitations to give input and to share their knowledge about their community’s greatest health needs.

In addition, even an individual or group that is not invited by a hospital to give input can have a voice. For each CHNA after the first, the Regulations require a hospital to consider written comments received (presumably from its community) regarding its most recently adopted CHNA report and implementation strategy.²⁰⁷ Community health justice advocates are permitted to present concerns about disparities and propose solutions, even if the hospital has not reached out to them to participate in the assessment process. The Regulations clearly intend that community members should have a voice in the CHNA process, but leave them some responsibility to speak up and raise community concerns. The Regulations also permit significant discretion for hospitals in choosing which health needs to prioritize and how to address them.²⁰⁸ However, robust participation by racial justice advocates in the CHNA process can help surface the existence of disparities. Moreover, well-informed advocates may be able to highlight how disparities-reducing measures could advance the hospital’s interests, thus sharpening the alignment of interests between the hospital and the community.²⁰⁹

B. Regulatory Action to Foster Convergence

Regulatory action provides a second front to help accelerate the convergence of interests so more hospitals will treat health disparities as health needs that they should remedy. The existing Regulations implementing the ACA’s requirement that hospitals assess community health needs already direct hospitals to solicit and consider input from populations likely to experience disparities, but early evidence suggests that relatively few hospitals have paid serious attention to disparities or engaged minority communities in a meaningful and sustained fashion.²¹⁰ The IRS should more strongly encourage hospitals performing CHNAs to attend to disparities, a step it could take even without undertaking another round of notice-and-comment rule making. For example, ongoing guidance could emphasize the importance of health equity as a community health concern and provide hospitals with tools for identifying and responding to disparities.²¹¹ The IRS could announce an expectation that CHNA reports will describe more fully and precisely how hospitals engaged community participants and the substance of their input.²¹² Or, along the same lines, the IRS could revise Schedule H to direct hospitals to provide more specific information about community engagement and to identify strategies actually pursued that target health disparities.

By taking these steps, the IRS could amplify the community’s voice and draw hospitals’ attention to the disparities existing in their communities, thereby fostering interest convergence. According to interest convergence theory, the federal government should be keen to take these steps, regardless of any policy maker’s or bureaucrat’s particular commitment to racial health justice. The high cost of racial disparities borne by the federal government in its role as payer under the Medicare program confirms its strong interests in addressing disparities and, presumably, in enlisting hospitals’ participation in disparities-reduction efforts.²¹³

More broadly, the industry-wide push toward value-based reimbursement methods, led by the Centers for Medicare and Medicaid Services (“CMS”),²¹⁴ may help hospitals recognize an alignment between providing high quality, equitable care and their financial well-being. Financial penalties for hospitals with excessive readmissions²¹⁵ provide a specific example of how federal payment policies can forge fortuity. Penalizing hospitals for excessive readmissions —a marker of poor quality care experienced disproportionately by minority populations — effectively gives them a financial incentive to address some factors producing disparities. Many of the conditions targeted by value-based payment models are preventable conditions that racial and ethnic minorities suffer from disproportionately.²¹⁶ In continuing its initiatives to craft and implement reimbursement measures to promote care of high quality and value, CMS can and should incorporate factors directly targeting disparities.²¹⁷ It should act more directly to create financial and non-financial incentives that align providers’ interests with achieving health equity.²¹⁸ For example, CMS’s redesign of payment systems to incorporate clinical performance measures could explicitly include measurements of reductions in disparities.²¹⁹ These steps would help crystallize hospitals’ financial interest in addressing disparities.

C. Research Identifying Potential Convergence

A third way to assist the convergence of interests is to continue research into the types of interventions that are effective in reducing disparities and their potential return on investment for hospitals.²²⁰ A body of knowledge regarding effective interventions is emerging, providing hospitals with evidence for investing in disparities-reduction strategies, but a more fully developed knowledge base could facilitate and accelerate the convergence of interests.²²¹ Many experts in this area assert that the most effective interventions involve coordinated efforts by a range of actors, including health care providers, public health servants, community-based organizations, and business and education leaders.²²² Thus, research into how hospitals most effectively contribute to successful initiatives would be particularly valuable.

D. Potential Objections

This Article proceeds from a premise that engaging hospitals in efforts to address racial health disparities is desirable and argues that the interest convergence theory suggests an opportunity to leverage the CHNA requirement to that end. Possible objections²²³ to an approach that relies on appeals to hospitals’ self-interest should be noted, however. These include concerns about sanitization, co-optation, over-claiming, and durability.

1. Sanitization

Some racial justice activists might object that attempts to persuade hospitals of an alignment between their self-interest and the elimination of racial health disparities in their communities will sanitize and soft-pedal the problem at hand. In short, attempts at persuasion fail to acknowledge the role of racism in disparities’ creation and persistence, a role that some argue must be highlighted in order to effectively address widespread structural racism. Indeed, calls to action by policy makers and public health funders often employ language designed to appeal to business interests and medical providers, rather than provoke a defensive response. A recent blog post by the head of the Robert Wood Johnson Foundation provides an example. Titled “Community Health is a Business Issue,” it describes the value to the business community of investing in “poverty-stricken areas” in order to improve the health of “disadvantaged groups,” but does not mention race.²²⁴

It is possible, of course, to explain why one would talk about health disparities without talking specifically about race. Disparities exist across many axes, and poverty and low socioeconomic status are also significant predictors of poor health outcomes.²²⁵ Some studies have found class or location to be more predictive of some poor health outcomes than race.²²⁶ And, as the saying goes, you catch more flies with honey than with vinegar. Calling out racism may provoke defensiveness, rather than buy-in.²²⁷

Is invoking the interest convergence theory—by appealing to hospitals’ self-interest—fundamentally incompatible with the methods of the Black Live Matter movement, whose power comes in part from its ability to disrupt, agitate, and discomfort listeners? Indeed, some racial justice advocates criticize mainstream initiatives combatting racial health disparities as providing more benefits to the academics and program personnel involved than to Black communities,²²⁸ or as failing to sufficiently acknowledge the role racism plays in producing poor health.²²⁹ I argue that these criticisms and racial activists’ confrontations complement, rather than conflict with, an appeal to hospital self-interest. More confrontational approaches may play a vital role in holding accountable those who work in the health disparities field, as well as the health care industry more broadly. They may open a space for serious reflection and conversation by wellmeaning Whites.²³⁰

Derrick Bell, the original source of the interest convergence insight, wrote of the importance of “professionals able to articulate racially realistic positions, that touch some whites in the pocketbook, expecting that their sense of justice will follow,”²³¹ but he also recognized that sometimes Whites would end discriminatory policies only when the cost of maintaining them became high.²³² Activists may also help make racial injustice so uncomfortable for Whites that they find it in their best interest to take actions benefiting Blacks, and protests over continuing manifestations of institutional racism are not inconsistent with efforts to identify potential alignments of interest.²³³ Activists’ continued demands for racial justice create part of the societal backdrop against which hospitals consider how to prioritize the health needs of their communities. In this way, activists’ demands may indirectly help persuade hospitals of their self-interest in adopting strategies to target health disparities in their communities. In other words, interest convergence’s appeal to hospitals’ self-interest need not deny the role of racism in order to provide hospitals an inviting alternative for moving forward. The two approaches to advancing racial justice may complement one another.

2. Co-Optation

A related concern is the possibility that enlisting hospitals to help address disparities could co-opt a grass-roots racial health justice movement that is finding a stronger voice as part of Black Lives Matter. In short, will emphasizing the roles of researchers and powerful institutions undercut a commitment to the affected communities?²³⁴ Even if hospitals partner with community-based organizations to address local disparities, some healthy skepticism is in order regarding hospitals’ willingness to cede much power or responsibility to community members.²³⁵ Preliminary reviews of hospital CHNA reports questioned how meaningfully hospitals engaged minority and underserved communities in assessing and prioritizing health needs.²³⁶ Increasingly, researchers studying how collaborative initiatives produce meaningful change in local communities emphasize the essential role of true community engagement.²³⁷ Authentic community engagement is by no means simple or straightforward. But examples of it exist, and the number of those examples is increasing. Thus, while caution is called for regarding the potential co-opting of community-based health justice initiatives, partnerships involving true community empowerment are possible.

3. Over-Claiming and Durability

Finally, this Article must avoid over-claiming. Even if every tax-exempt hospital in the United States vigorously pursued efforts to eliminate some of the health disparities in their communities, it would not produce the broad-based social change needed to disrupt the social and economic forces contributing to disparities. Serious advocates for the elimination of racial health disparities emphasize the need for structural change addressing the broad range of forces contributing to disparities.²³⁸ In addition, an integral part of Professor Bell’s interest convergence theory is that gains in racial justice that occur when interests converge may be lost when circumstances change and White interests diverge once again from those of Blacks.²³⁹ As a result, engaging hospitals as partners in disparities-reduction initiatives will not “fix” the problem of racial health disparities. Engaging hospitals would be neither sufficiently broad in scope, nor sufficiently durable.²⁴⁰

Nonetheless, harnessing the energy and resources of hospitals as partners in local efforts to address disparities offers the potential for a bottomup, community-driven approach to counteract and disrupt macro forces on a local level.²⁴¹ Recent data regarding geographic variations in the life expectancy gap between the rich and poor in the U.S. confirm the value of local initiatives to improve health outcomes.²⁴² These data show that local policies in places like New York City and Birmingham can narrow income-based health disparities, even when those policies are small in scale and do not address broad societal problems of income inequality.²⁴³ Moreover, this Article’s thesis taps into a legal mechanism that already exists. Because the IRS Regulations implementing the CHNA requirement are still relatively new, hospitals’ patterns of compliance remain to be shaped by further regulatory guidance and industry practice.²⁴⁴ Even if the promise of the CHNA requirement for reducing disparities is limited to making local progress, rather than advancing broad societal changes, squandering that promise would be wasteful, particularly when legal tools for addressing disparities are already so few in number.²⁴⁵

In sum, despite the existence of legitimate concerns, efforts to ensure that powerful actors within the health care industry recognize the alignment of their interests with the interests of advocates for racial health justice are worthwhile. Engaging hospitals will not by itself eliminate racial health disparities, but it promises to be a useful tool in the larger toolkit of disparities-reduction strategies.²⁴⁶

Conclusion

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.