Healthcare Policy & Law

HSA405 CHAPTER 7

LAW AS A SOCIAL DETERMINANT OF HEALTH

Up to this point, we’ve described generally various types of social determinants of health and some correlations between those determinants and the health of people who live in communities in which SDH may be relatively more compromised. We turn now to a more nuanced discussion of one very influential social determinant of health: the law. Throughout the nation’s history, law has played an integral role in causing, exacerbating, and alleviating health-harming social conditions, from the legally sanctioned, racially segregated—and horribly unequal—medical care systems used during slavery time, to the expansion of building codes in the 1920s, to the War on Poverty legislation of the 1960s, to the Affordable Care Act’s focus on health equity. Because the law’s reach in this regard is so expansive, we only provide an overview for purposes of this chapter.

Whether embodied in constitutions, statutes, regulations, executive orders, administrative agency decisions, or court decisions, the law plays a profound role in shaping life circumstances and, in turn, health. The ways in which this occurs can be broken down into four categories.

1. The law can be used to design and perpetuate social conditions that can have terrible physical, mental, and emotional effects on individuals and populations. One obvious example in this category is the “separate but equal” constitutional doctrine that allowed racial segregation in housing, health care, education, employment, transportation, and more. Indeed, injustices in healthcare access and quality were commonplace in the United States prior to the Civil Rights Movement. Racially segregated health care dates to slavery times, when plantations had on-site facilities to care for slave laborers. After the slaves were freed but also after the First Reconstruction ended in the late 1870s, Jim Crow laws ushered in a new era of discriminatory healthcare access and delivery through separate hospitals and physician practices, separate medical, nursing, and dental schools, and separate professional medical societies (for example, Alabama once had a law that stated: “No person or corporation shall require any White female nurse to nurse in wards or rooms in hospitals, either public or private, in which Negro men are placed.” 31

2. The law can be utilized as a mechanism through which behaviors and prejudices are transformed into distributions of well-being among populations. By way of example, although black and white people use illicit drugs at approximately the same rate, drug crime incarceration rates are far higher for black people. Thus, who is chosen for surveillance and arrest, and how the arrested are selected for either punishment or treatment, turns out to be an important driver of how a supposedly neutral law differentially impacts people and communities, and in turn their health. 32  Healthcare provider discrimination and bias reside in this category, as well. Healthcare discrimination and bias can take many forms: it can be based on race, ethnicity, disability, age, gender, and class (or socioeconomic status). Class-related healthcare discrimination alone can take multiple forms. For example, some healthcare providers might refuse to accept as patients individuals who are covered under Medicaid (because the Medicaid population tends to be disproportionately poor and of color), or low-income individuals might fall victim to the practice of redlining, which refers to situations in which healthcare entities relocate from poor neighborhoods to wealthier ones. 33

3. Laws can be determinative of health through their under-enforcement. For example, a perfectly good set of housing regulations aimed at keeping housing units safe, clean, and quiet are of little value to individual and group health if there is neither the will, nor the resources, to enforce them. Substandard housing conditions, including the presence of rodents, mold, peeling lead paint, exposed wires, and insufficient heat—all of which are common among low-income housing units—can cause or exacerbate asthma, skin rashes, lead poisoning, fires, and common illnesses, yet none of these housing problems can be “cured” by a clinical encounter. While their consequences can be treated medically, the causes require robust enforcement of existing laws. 34

4. Finally, the law can be used to structure direct responses to health-harming social needs that result from things like impoverishment, illness, market failure, and individual behavior that harms others. For example, the Emergency Medical Treatment and Active Labor Act (EMTALA) requires Medicare-participating hospitals to provide needed stabilization services to individuals who have an emergent condition. Notably, EMTALA’s requirements are universal—meaning they have to be fulfilled by hospitals irrespective of the presenting patient’s socioeconomic or insurance status—and were written into law because many private hospitals had long turned away emergent patients who were uninsured and could not pay out-of-pocket for their care.

Many financing laws that subsidize healthcare services for vulnerable populations also fit into this category. Medicaid is an obvious example, and the Public Health Service Act includes funding for community health centers, persons with HIV/AIDS, persons with mental illness or substance abuse disorders, and project grants to provide preventive and immunization services, and breast and cervical cancer screening and detection. Title VI of the 1964 Civil Rights Act prohibits discrimination on the basis of race, color, or national origin by any recipient of federal financing, including healthcare providers and facilities. Finally, public health departments funded under state and local legal authority provide primary and preventive healthcare services, such as childhood immunizations, to underserved populations. Programs such as the National Health Service Corps (NHSC) and the Indian Health Service (IHS) were established under federal law to address the lack of providers in rural and other underserved areas. The NHSC was founded in order to incentivize graduates of medical school and other health professions programs to practice primary care in underserved areas, because starting in the 1950’s many medical graduates began gravitating in large numbers to large cities to practice a medical specialty. The IHS is the principal federal healthcare provider and health advocate for Indian people, providing comprehensive health services to approximately 1.9 million American Indians and Alaska Natives.

Furthermore, through their police powers, states directly regulate individual and corporate behavior in order to protect and promote the public’s health. For example, states regulate the food supply and food establishments, enforce occupational safety rules, curb pollution, control the sale of firearms, restrict the marketing of tobacco products, and accredit healthcare professionals and facilities. Indeed, at the local, state, and federal levels, the law has played important roles in all of the 10 most noteworthy public health achievements of the 20th century, as selected by the federal Centers for Disease Control and Prevention: control of infectious diseases, motor vehicle safety, fluoridation of drinking water, tobacco use control, vaccinations, decline in deaths due to coronary heart disease and stroke, food safety, improvements in maternal and child health, family planning, and safer work places. 35  Taken together, the above discussion illustrates how using law to achieve better health is well-suited to what is called a “health in all policies” (HIAP) strategy. This strategy is based on the recognition that several pressing health-related challenges—inequities, chronic disease, skyrocketing costs, the need for insurance reform, and so on—are often complex, multi-dimensional, and linked to one another. As a result, HIAP relies on a collaborative governmental (and sometimes nongovernmental) approach to health improvement by incorporating health considerations into an array of policy decisions, and by engaging governments and other stakeholders in a multi-sector approach to shaping the economic, physical, and social environments in which people live, work, and play.

In thinking about how law could be used to foster a HIAP approach, consider the number of rule-making departments and agencies at just the federal level that can (and do) serve health care and public health functions even though they are not commonly identified as health agencies. The Environmental Protection Agency (EPA) plays an obviously important role in environmental health. Reducing injuries and hazards in the workplace are key goals of the Occupational Safety and Health Administration (OSHA), which is part of the Department of Labor. The Department of Homeland Security protects health when it prepares for and responds to disasters and terrorism. The Department of Agriculture (along with the Food and Drug Administration) plays an important role in the protection of the nation’s food supply. The Department of Housing and Urban Development influences the built environment, which in turn influences health. The Department of Energy sets radiation safety standards for nuclear power plants and other sources of energy. Again, these are just federal agencies, and they are all part of the Executive Branch of government; Legislative Branch committees at the federal, state, and local levels that are also not typically considered “health” committees could also craft legislation with a HIAP approach in mind. The multiple branches and agencies involved in health-related matters plainly shows that the variety of influences impacting individual and population health are outside the control of the health sector alone.

COMBATING HEALTH-HARMING SOCIAL CONDITIONS THROUGH MEDICAL-LEGAL PARTNERSHIP 46

“Do you have any concerns about your housing conditions? Are you concerned about having enough food to eat? Is your child receiving proper supports at school? Do you feel safe at home?” These types of questions are asked of low-income patients with regularity, and their medical care providers know well that the answers speak volumes about patients’ health. When the answers come back, however, healthcare providers are too often powerless to do as much as they would like to help remedy these “life circumstances.”

Training doctors, nurses, and allied health professionals to reframe these circumstances can help. By now, you probably recognize many of these types of determinants of health for what they are: social conditions whose improvement would benefit from civil legal assistance. Yet despite the connection between poverty, health, and legal needs, and despite the fact that healthcare and civil legal aid professionals commonly provide services to overlapping vulnerable populations, the professions too infrequently attempt to address their populations’ needs in a coordinated fashion.

Medical-legal partnership (MLP) aim to bridge this divide. At a practical level, MLPs function as a patient care team that includes both medical and legal professionals; a legal services attorney is literally embedded in a medical care setting (a hospital, community health center, etc.) to address underlying social conditions that negatively affect patient health but whose remediation is outside the expertise of traditional healthcare providers. At a more fundamental level, the goal of the MLP movement is to help create an interconnected care system that focuses on the whole patient (rather than just on biology and behavior), including the ways in which myriad social conditions factor into individual and population health. Thus, the work of MLP lawyers is quite different from that of a general counsel or compliance officer who normally inhabits hospitals and clinics; a general counsel typically provides legal advice to clinicians on matters of medical liability and informed consent, and represents them in insurance and disciplinary matters; corporate compliance officers are responsible for ensuring that the facility meets all governmental, environmental, and licensing regulations.

The Evolution of an “Upstream” Innovation

The modern MLP movement has its roots in the late 1960s, when visionary physicians H. Jack Geiger and Count Gibson were funded by the federal government to form the nation’s first community health centers in Mississippi and Massachusetts. The government’s community health center program grew out of the civil rights movement, when the federal Office of Economic Opportunity (the agency created to administer many of President Lyndon Johnson’s War on Poverty programs, and whose programs continue in large part to this day under the auspices of the U.S. Department of Health and Human Services) established “neighborhood health centers” to provide health and social services to medically underserved populations. In designing the earliest centers, Drs. Geiger and Gibson recognized the importance of spending some of their federal funding on lawyers, who assisted African American health center patients battling housing discrimination.

The second prominent instance of the blending of medical and legal services for low-income populations occurred in the early 1980s when, faced with devastating death tolls from HIV/AIDS, some health clinics began providing on-site legal assistance to patients who needed to quickly grapple with end-of-life issues (medical decision-making, asset distribution, family and custody matters, etc.). A few pioneering clinics held on to this blended model even after the national AIDS crisis abated, offering comprehensive legal services to all patients in need.

Building on these examples, the first formal MLP was created in the early 1990s in a Boston hospital to intervene on behalf of pediatric patients with chronic conditions who were suffering the consequences of inadequate housing. From that point through 2006, medical-legal partnerships sprouted up a few at a time, mainly in pediatric healthcare settings, where the model had proven effective in Boston. Since 2006, however, use of the MLP model has expanded considerably. Fueled by the creation of the National Center for MedicalLegal Partnership (NCMLP), the focus by social scientists on the importance of social factors in determining health, and the Affordable Care Act’s focus on disease prevention and professional collaboration, MLP is now practiced in 36 states by nearly 300 hospitals and health centers, in settings as diverse as veteran care facilities, American Indian reservations, and correction facilities.47

Under the MLP model, public interest lawyers work with health care workers to screen for health-related legal problems, often encompassing family matters (divorce, domestic violence), housing problems (eviction, habitability, utility advocacy), special education advocacy, immigration issues, disability issues, employment instability, receipt of public benefits (health insurance, Social Security Income), food security concerns, and additional problems that can lead to stress or injury or that can exacerbate existing health problems.  Figure 7-1  lays out the key types of patient problems that make up the practice of a typical, comprehensive MLP, using the mnemonic “I-HELP”: Income, Housing and utilities, Education and employment, Legal status, and Personal and family stability. 48

The MLP approach is built on the understanding not only that many social determinants of health require legal interventions, but that moving “upstream” to assist vulnerable populations with legal needs is preferable to waiting until a legal crisis erupts (for example, remediating a housing problem prior to the receipt of an eviction notice). It is similar to preventive health care: it is often more cost effective—and of course more beneficial to the patient, both physically and emotionally—to help a patient remain healthy, rather than treat the patient post-illness. At medical-legal partnerships, healthcare and legal professionals are trained side-by-side about the intersection of health and legal needs and ways to screen for health-harming legal needs. Because MLPs recognize that social determinants contributing to poor health require both health system and public policy change, MLP lawyers utilize on-site legal assistance provided to patients to identify patterns of systemic need, transform institutional practices, and advocate for improved population health policies.  Figure 7-2  portrays this upstream MLP approach. Similar to the movement to integrate behavioral healthcare services into primary care, the integration of civil legal aid with healthcare delivery can improve access to services, build team capacity, and promote patient-centered care.

Medical-legal partnerships have become more integrated over time, with healthcare and legal partners sharing patient and institutional data, jointly developing service and training priorities, and establishing cross-sector communication processes. The more collaboration and integration that occurs, the more likely it is that upstream detection of the social conditions that lead to poor health can occur. Deep collaboration and integration also presents an opportunity for healthcare providers and lawyers—two learned professions that, historically, have not been the closest of colleagues—to work together when policymakers design fixes for health-harming social and legal problems.