Document Type

Article

Publication Date

2023

Abstract

Pervasive health disparities in the United States undermine both public health and social cohesion. Because of the enormity of the health care sector, government action, standing alone, is limited in its power to remedy health disparities. This Article proposes a novel approach to distributing responsibility for promoting health equity broadly among public and private actors in the health care sector. Specifically, it recommends that the Department of Health and Human Services issue guidance articulating an obligation on the part of all recipients of federal health care funding to act affirmatively to advance health equity. The Fair Housing Act’s requirement that recipients of federal housing funds take steps to affirmatively further fair housing, an obligation justified by the history of government support for racial residential segregation, inspires this proposal. Perhaps less well known is the government’s role in producing and tolerating de facto segregated health care facilities and racial health disparities. Anti-discrimination laws, including Title VI of the Civil Rights Act, §1557 of the Affordable Care Act, and §504 of the Rehabilitation Act, provide statutory underpinnings for an affirmatively furthering health equity (AFHE) obligation. Moreover, existing legal and regulatory frameworks relating to hospital tax exemption, community-based supports for disabled people, and administration of Medicare and Medicaid suggest models for implementing an AFHE obligation. Receipt of federal funding by hundreds of thousands of health sector actors should come with some responsibility for working to ameliorate health inequities.

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