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July 10, 2020

Health Law Weekly

Health Justice Isn’t Just Health: Advancing Equity Amidst COVID-19

  • July 10, 2020
  • Dru Bhattacharya , Vice President, Diversity & Inclusion, Advocate Aurora Health

“Not everything that is faced can be changed, but nothing can be changed until it is faced.”
James Baldwin

In the recent past, you’ve ensured that your community health needs assessments and implementation plans have been completed. You’ve adopted policies and procedures reiterating your organization’s commitment to non-discrimination in the delivery of services. As COVID-19 circulated, you secured masks and personal protective equipment for distribution to your frontline workers and communities. And as differences among vulnerable groups emerged, you renewed your commitment to serving those groups disproportionately affected by the virus.

The disproportionate burden borne by people of color remains one of the most troubling hallmarks of this pandemic. Unfortunately, as leaders in Milwaukee County and Chicago can readily attest, there has been a persistent uptick of COVID-19 cases among racial and ethnic minorities—most recently among Hispanics and Latinx communities—notwithstanding an overall (though perhaps temporary) stabilization and reduction of cases.

At the same time, a national outcry against racism has taken center stage, and the role of social determinants and health equity, once terms of art within public health circles, has emerged with wider interest and applicability within health care organizations.

Now what?

In June 2020, 36 health care organizations in Chicago took a first step by coming together to decry racism as a public health crisis and pledging to improve access to care and eliminate racial biases that contribute to poor outcomes.[1] The pledge includes seven commitments that range from broad declarations (e.g., improve access to primary care) to specific action items. Of particular interest to health lawyers is the charge to “re-examine our institutional policies with an equity lens and make any policy changes that promote equity and opportunity.”[2]

Establishing an equity lens and operationalizing equity against a backdrop of COVID-19 and the heightened attention to disparities is challenging, owing to:

  • ambiguity in terminology;
  • misunderstanding the continuum of care; and
  • inadequate accommodation of stakeholders

Resolving these issues will provide health care organizations with purposeful precision that is aligned with their unique values and tailored to the pressing needs of their patients and communities.

Tip #1: Define Health Equity (The “WHY”)

The term “equity” is as elusive as it is compelling, invoking different interpretations within health care, and is distinguishable from its usage in the law.

Numerous definitions of health equity have been advanced by foundations and trade associations, but they arguably present a number of challenges, including definitional ambiguity, unrealistic scope of intervention, and an unclear role of the health care organization.

The Robert Wood Johnson Foundation (RWJF) offers five definitions for different audiences.[3] A general definition highlights the opportunity for everyone to have a fair and just opportunity to be as healthy as possible. A related definition is an elaboration of the general definition and includes goals to remove poverty, discrimination, and their consequences, e.g., lack of access to good jobs, quality education, housing, safe environments, and health care. A technical definition encourages the elimination of disparities and determinants that adversely affect marginalized populations. A conceptual definition distinguishes the term from disparities, defining equity as a principle that motivates reduction of disparities, which are the actual differences that we measure to gauge progress towards equity. And finally, a process-oriented definition focuses on health equity as the removal of economic and social obstacles such as poverty and discrimination.

The American Hospital Association recently cited two of the RWJF definitions and went on to define equity “to mean that all individuals receive the tools and resources they need to achieve health and well-being.”[4]

Notably, some states have defined the term “health equity” in their statutes, usually pursuant to the establishment of an administrative body that oversees efforts to reduce health disparities. In California, health equity is defined as “efforts to ensure that all people have full and equal access to opportunities that enable them to lead healthy lives.”[5] In Colorado, health equity means “achieving the highest level of health for all people and entails focused efforts to address avoidable inequalities by equalizing those conditions for health for all groups, especially for those that have experienced socioeconomic disadvantages or historical injustices.”[6] And in Hawaii, health equity means “assuring equal opportunity for all people in the State to attain their full health potential.”[7]

As mentioned above, each definition may present several challenges. In practice, the key challenge is striking a balance between a definition that is simultaneously aspirational and operational.

Consequently, leaders may opt to adopt their own definition of health equity, consistent with their organizational values, that is readily operationalized. In our organization, for example, we developed the following definition of “health equity”:

Health equity is the attainment of the highest level of health for all people. Achieving health equity requires the progressive improvement of modifiable conditions that optimize access, safety, quality, care, and well-being among all populations.

This definition is both aspirational and operational, and leans on our organizational commitment to safety, quality, access, care, and population health. Populations are dynamic, and our approaches to prevention, treatment, and care are constantly evolving (i.e., never absolutely achieved). So, recognizing these ever-changing situations, we commit to a process of proactively identifying and improving those conditions that together yield the most favorable outcomes. We also focus on those modifiable factors within our existing capacity of resources and influence. For example, we may not be able to remedy urban poverty, but we can identify patients with inadequate medical transportation and facilitate coordination of or referral to services to reduce no-shows. The term “conditions” encompasses recognition of material factors related to the individual (e.g., housing, income, geographic residence), as well as the broader public processes (e.g., laws, regulations) and specific circumstances (e.g., providers, staff, hospital policies and procedures) related to their immediate care. While the term “conditions” offers us flexibility in adapting our strategies over time, our organizational priorities are made explicit to unite our efforts. As such, the term “well-being” is introduced, consistent with our strategy to “Make Healthy Happen.” Finally, our reference to “all populations” stems from an appreciation that patients are complex and simultaneously belong to different groups, which may warrant consideration in the delivery of services across a social continuum of care (discussed below). A minority female patient, age 65, who resides in an urban community, belongs to at least four distinct patient populations: minorities, females, individuals age 65 and older, and an urban resident—all of which may be relevant to her care. Building a culture of equity asks us to ensure that her care is evidence-based and culturally competent while being mindful of these distinct and perhaps interrelated factors that constitute her identity and patient experience.

Tip #2: Align Policies and Procedures Along a Social Continuum of Care (The “WHEN” and “WHERE”)

Population health practitioners point to upstream and downstream interventions as markers of when we intervene to bring about change. An upstream determinant may include policies that dictate behavior and practices, whereas downstream determinants are closer to the actual delivery of care or services. An additional consideration is not when a service is delivered, but the social context within which the service is delivered. Beyond health care delivery, social determinants encompass the conditions in which people live, learn, work, and play—implicating non-clinical initiatives—and have been estimated to account for 45-60% of an individual’s health status.[8]

Together, this range of clinical and non-clinical services across a time period that has been scientifically shown to begin prior to childbirth (based on the effect of maternal health on subsequent child outcomes) into old age establishes a social continuum of care. The benefit of framing our services in this fashion is that the social continuum includes policies related to community health and community relations that may otherwise be neglected when the focus is solely on patient care. The latter involves the usual suspects of risk management, safety, and patient relations, but gives perhaps little consideration to the communities where patients live.
While the utility of policies and procedures (P&P) to reduce legal risk and enhance practice is intuitive, an inventory of current P&Ps along a social continuum of care can help identify and allocate resources appropriately. Patient-facing P&Ps include compliance with civil rights requirements, such as the Civil Rights Act, Americans with Disabilities Act, the Rehabilitation Act, the Age Discrimination Act, and Section 1557 of the Affordable Care Act. The general theme of non-discrimination is extended, for example, to the provision of language assistance services and non-discrimination in the delivery of services based on protected classes, including individuals with disabilities, limited English proficiency, and the deaf and hard of hearing communities. During the early stages of COVID-19, the federal Office for Civil Rights issued guidance for health care organizations that precluded discrimination against individuals with disabilities when determining allocation of scarce resources, such as ventilators.[9] Another emerging area is how hospitals choose to accommodate patients’ requests for clinicians based on their sex, gender, or national origin. There is some scholarship on determining clinically and ethically appropriate discriminatory requests, but limited guidance by professional societies and hospital policies.[10] Nonetheless, health care organizations have been successfully sued for racially discriminatory staffing directives in response to patients’ race-based demands and should establish policies mindful of their ethical and legal obligations.[11]

Community-facing compliance requirements include Section 501(r)(3)(A), which requires a hospital organization to conduct a community health needs assessments (CHNA) every three years and adopt an implementation strategy to meet the community health needs identified through the CHNA.[12] Failure to adopt recommendations identified in the CHNA must be explained with reasons, such as the lack of expertise to address the issue, excessive expense to implement, or the infeasibility of the implementation.[13] This flexibility increases the likelihood of compliance, but may simultaneously limit the modification of social conditions that sustain inequities.

Holding ourselves accountable to a social continuum of care increases the likelihood of eliminating disparities. For example, referral to shelters or the provision of short-term housing are laudable initiatives to mitigate the effect of homelessness on health outcomes. However, the underinvestment in neighborhoods and lack of accountability for environmental determinants sustain chronic health problems. For example, 20-30% of asthma is linked to home environmental conditions, 21,000 lung cancer deaths stem from radon exposure, and 24 million homes have lead-based paint hazards that can cause irreversible childhood lead poisoning.[14] And COVID-19 may be no exception. A recent preliminary study found that counties with a higher percentage of households with poor housing conditions had more new cases and deaths associated with COVID-19.[15]
Advancing equity requires an assessment of factors across the social continuum of care, including environmental exposures, and using that data to advance policy change and accountability.

Tip #3: Focus on Patients, Communities, AND Team Members (The “WHO”)

Seventy-five percent of the first 100 deaths attributable to COVID-19 in Chicago were among African-Americans, and disparities in cases, testing, and deaths persist across races and ethnicities. The initial trends compelled Chicago Mayor Lori Lightfoot to create the city’s Racial Equity Rapid Response Team, which would initially oversee town halls, distributions of masks, and neighborhood canvassing to reach populations most heavily impacted by the pandemic.[16] All health care organizations that signed the subsequent pledge to combat racism are effectively expanding these initial efforts.

The current COVID-19 pandemic is testing our capacity and our character, which compels us to be mindful of not only how and when we deliver care across the social continuum, but who may be particularly affected.

Historically, our national response to H1N1 in 2009 later revealed that the risk of exposure to the virus was significantly related to race and ethnicity. Spanish-speaking Hispanics had the highest risk of exposure (but were less susceptible to complications) and experienced disparities in access to care. African-Americans, meanwhile, were found to be the most susceptible to complications.[17] These findings are consistent with an extensive literature on the association of racial and ethnic health disparities related to chronic diseases and other underlying health conditions with a higher risk of complications from infection.

Our experience with COVID-19 has been similar. Nationally, age-adjusted hospitalization rates for COVID-19 were highest among American Indians, Alaskan Natives, and African-Americans, followed by Hispanics or Latinos.[18] In Illinois, Hispanics comprise 32.5% of cases statewide, the highest among all racial and ethnic groups. In Chicago, the disparity is more pronounced, with Latinx individuals accounting for 47.7% of COVID-19 positive cases, followed by African-Americans, who constitute 29.7% of cases.[19]

In response, health care organizations distributed personal protective equipment (PPE) to frontline workers and masks to patients recovering from COVID-19, as well as to the communities at heightened risk of contracting the virus.

Since most public attention has been given to the experience of patients and communities generally, it is easy to overlook the critical role of employees or “team members.” Patients and team members alike identify with groups based on age, race, ethnicity, sexual orientation, religious affiliation, and geographic residence, among others. Together, their shared experiences create those aggregate measures that we call population health outcomes and provide a sharp reminder: they are us.

Notably, during H1N1, Spanish-speaking Hispanics were more likely than White or African-American respondents to say that their jobs could only be performed at the workplace (i.e., not remotely) and that they would have trouble staying home for up to 10 days.[20] In 2020, African-Americans are overrepresented, filling 90% of the lowest-wage jobs that are considered high-contact, essential services (e.g., psychiatric aides, nursing assistants, cooks, pharmacy techs, food prep supervisors, childcare assistants, medical assistants), and comprised only 20% of workers who can work from home, compared to 30% of White workers and 37% of Asian workers.[21] These circumstances likely contributed to spikes in zip codes where we also observed higher rates of COVID-19 infection among racial minorities. Because asymptomatic carriers—infected individuals who do not show signs of illness—are thought to be major drivers of disease spread, the social dynamics of population migration between home, the workplace, and everywhere in between is what sustains the virus within our communities.

Consequently, we must continue to encourage leaders to ensure that team members, particularly those who are experiencing financial and social challenges in securing basic needs or accessing care, are supported during these trying times. National utilization rates of employee assistance programs (EAPs) are usually low (3-4%), and the lack of awareness or breadth in services may result in inadequate offerings for eligible team members. Assessing the needs of team members ought to be part of a broader health equity initiative. (Figure 1 includes a sample six-question Team Member Assessment of Social Needs that can be deployed using a conventional survey.) 

Figure 1. Team Member Assessment of Social Needs
How many team members who are not working from home:
  1. identify as belonging to a minority population?
  2. have limited English proficiency?
  3. take public transportation?
  4. are affected by school closings?
  5. are unable to find or pay for childcare?
  6. are unable to secure basic necessities (e.g., food, household goods, medicine) or are experiencing related financial strains (e.g., rent/mortgage, heat/electric, phone, etc.)?


Simply put, a health inequity is an unjust disparity in which the latter is a measurable difference tied to some demographic identifier: age, sex, race, ethnicity, etc. Our ethical and legal accountability for advancing equity is tied to a combination of federal and state requirements that encompass patient- and community-facing obligations within the purview of different stakeholders.

We can enhance our organization’s commitment to advance equity by adopting an approach that unifies these seemingly disparate pieces. By articulating the “who, when, where and why” as they relate to our scope of services, we can enhance our individual, organizational, and collective accountability and increase the likelihood of reducing and eliminating health inequities. Heightened attention to P&Ps may also reduce legal liability, particularly in situations where attempts to accommodate patient preferences may result in violations of anti-discrimination laws.

The paralysis of analysis is an imminent threat to all organizations and should not deter them from being proactive in promoting a culture of equity. Defining the term in a manner that is consistent with their values is a critical first step to fulfilling their ethical and legal obligations.

Dru Bhattacharya, JD, MPH, LLM is the Vice President of Diversity and Inclusion at Advocate Aurora Health, a non-profit health system comprised of 28 hospitals and over 500 outpatient clinics in Illinois and Wisconsin. He also serves as the Chair of the Policy Committee for the American Public Health Association Nursing Section.

[1] It Is Undeniable: Racism is a Public Health Crisis (June 19, 2020),
[2] Id.
[3] Robert Wood Johnson Foundation, What is Health Equity? (May 2017),
[4] American Hospital Association, Issue Brief 3—Connecting the Dots: Value and Health Equity (Nov. 2018),
[5] Cal. Health and Saf. Code § 13109.5(2).
[6] Colo. Rev. Stat. § 25-4-2202(3.7).
[7] Haw. Rev. Stat. § 321-1(j).
[8] Centers for Disease Control and Prevention, Social Determinants of Health: Know What Affects Health,
[9] HHS Office for Civil Rights (Mar. 28, 2020), Bulletin: Civil Rights, HIPAA, and the Coronavirus Disease 2019 (COVID-19),
[10] Thaddeus Mason Pope, How to Respond to a Patient’s Discriminatory Request for a Different Clinician (Apr. 10, 2018),
[11] Blackburn v. Wash. Dep't of Soc. & Health Servs., 186 Wash. 2d 250 (Wash. 2016).
[12] 26 C.F.R. § 1.501(r)-3.
[13] Wash. Rev. Code § 70.41.470.
[14] National Center for Healthy Housing and the America Public Health Association, National Healthy Housing Standard (June 2018),
[15] Khansa Ahman, Sebhat Erqou, Nishant Shah, et al., (May 30, 2020), Association of Poor Housing Conditions with COVID-19 Incidence and Mortality Across U.S. Counties,
[16] City of Chicago (Apr. 20, 2020), Mayor Lightfoot and the Racial Equity Rapid Response Team Announce Latest Efforts to Address Racial and Health Disparities Among Minority Communities,
[17] Sandra Crouse Quinn, Supriya Kumar, Vicki S. Freimuth, et al. Racial disparities in exposure, susceptibility, and access to health care in the US H1N1 influenza pandemic., Amer. J. Pub. Hlth. 101, no. 2 (2011): 285-293.
[18] Centers for Disease Control and Prevention, Demographic Trends of COVID-19 cases and deaths in the US reported to CDC,
[20] Sandra Crouse Quinn, Supriya Kumar, Vicki S. Freimuth, et al. Racial disparities in exposure, susceptibility, and access to health care in the US H1N1 influenza pandemic. Amer. J Pub. Hlth. 101, no. 2 (2011): 285-293.