Disparities in Health Care: The Pandemic’s Lessons for Health Lawyers

Population-level disparities in health and health care came to the forefront of U.S. public consciousness in 2020. As the racial, ethnic, and socioeconomic stratification of COVID-19 infection and death rates emerged with chilling clarity, the Black Lives Matter protests of the summer focused millions of Americans on the complex, structural nature of inequity and its long-lasting effects.Access to quality health care is a “social determinant of health,” meaning that it is one of the “non-medical factors that influence health outcomes . . . the conditions in which people are born, grow, work, live, and age, and the wider set of forces and systems shaping the conditions of daily life.” Although it may seem obvious that differential access to high-quality care results in differential health outcomes, less obvious are the ways that multiple factors—including facially neutral laws and organizational practices—interact over time to produce population-level disparities in care and outcomes. In 2021, all U.S. health lawyers should monitor and consider the following key developments affecting equitable access to health care:• The ongoing pandemic response and the disparate access to U.S. health care systems that it reveals;• The ongoing expansion of Medicaid eligibility under the Patient Protection & Affordable Care Act (ACA) and the legality of exceptions to federal requirements granted to state Medicaid programs;• The continuing evolution in publicly-funded health insurance toward payment models that reward positive health outcomes (and punish poor ones); and• The ongoing debate over federal law preventing discrimination in health care eligibility and delivery of care. Differences in health outcomes between populations—defined not only by differences in race, ethnicity, and socioeconomic status, but also by disability status, age, geographic location, language, immigration status, gender, gender identity, and sexual orientation—are not new. Nor are group differences in access to care, insurance coverage, and quality of care that closely align to social, economic, and/or other environmental disadvantage. But, with intensifying and warranted attention to health inequity and its financial and social costs, U.S. health lawyers across the system should be alert to the ways that facially neutral organizational practices and policies reinforce health care disparities and thereby contribute to disparate health outcomes

Attorney as Accompagnateur: Resilient Lawyering When Victory is Uncertain or Nearly Impossible

This article comprises a set of essays that explore the public interest lawyer’s capacity to persevere in the face of legal loss that is so regular that pessimism, indifference, and exhaustion set in. The article views the lawyer in the role of accompagnateur. A foundational professional value is to accompany clients—stand beside, stand up for, and give respect and voice to the client’s story—irrespective of victory. In so doing, the lawyer’s deepest source of professional identity and purpose is in accompanying the client well. The thesis is that accompaniment, done well, makes one a better lawyer for her client and simultaneously nourishes the lawyer enough to withstand inevitable losses. This collection of writings from students, a veteran public interest lawyer, and practice faculty traces the arc of a career

Attorney as Accompagnateur: Resilient Lawyering When Victory Is Uncertain or Nearly Impossible,

Social justice lawyers come to the profession intending to make a difference through the instruments of law. And gloriously, they often make a difference in people’s lives for the better. They make our world a more just, compassionate, and tolerant place. But there is no denying that, in poverty law practice, legal success can be elusive, ephemeral, or perhaps a mirage. How does that lawyer feel when the legal remedies at her disposal, even if “successful,” fail to mitigate the injustices suffered by her clients? Are there definitions of professional satisfaction and success that are enduring, even if legal success or social justice is not attainable?This article comprises a set of essays that explore the lawyer’s capacity to persevere in the face of legal loss that is so regular that pessimism, indifference, and exhaustion set in. Our quest is to describe the contours of a lawyer’s role that gives the poverty lawyer professional identity and purpose, despite repeated loss. That role is the accompagnateur.Paul Farmer, a physician and public health activist, coined the terms accompaniment and accompagnateur. In a 2011 commencement address at the Kennedy School of Government at Harvard University,Farmer articulated the role of accompagnateur for health relief workers:To accompany someone is to go somewhere with him or her, to break bread together, to be present on a journey with a beginning and an end. ... [W]e’re not sure exactly where the beginning might be, and we’re almost never sure about the end. There’s an element of mystery, of openness, in accompaniment: I’ll go with you and support you on your journey wherever it leads. I’ll keep you company and share your fate for a while. And by “a while,” I don’t mean a little while. Accompaniment is much more often about sticking with a task until it’s deemed completed by the person or people being accompanied, rather than by the accompagnateurs.Farmer’s vision has resonance with lawyers in social justice and personal strife practices. The authors draw on that inspiration, but adapt it to legal services

Un-Erasing Race in a Medical-Legal Partnership: Antiracist Health Justice Advocacy by Design

This Article covers a potential response to a Massachusetts state law which has been interpreted to require health care providers and birthing hospitals to report to state authorities any infant born to a person taking medication of opioid use disorder. While the statute mandates reports where a professional has reasonable cause to believe that a child is suffering physical or emotional injury as a result of substance dependence at birth, the Article highlights that many institutions report all infants born to persons with substance abuse disorders, regardless of risk of harm, for fear of penalty for failure to report. As a result, many individuals endure months or years long involvement with state authorities without warrant. Many patients avoid necessary pre- and perinatal care, addiction treatment, or both for fear of repercussions. Importantly, the Authors note that these challenges have been disproportionately impacting the Black community. As a potential solution, the Authors explore the possibility of an academic medical legal partnership which would support patients of a regional referral center and medical home for the treatment of substance use disorder in pregnancy. The Authors advocate for the use of such partnerships across different communities. Furthermore, they claim that academic medical legal partnerships which utilize an antiracist design can 1) shift the dialogue regarding social determinants of health and 2) fulfill ABA curriculum standards in law schools

Gendering the Gentrification of Public Housing: HOPE VI\u27s Disparate Impact on Lowest-Income African American Women

HOPE VI must have seemed so promising. When, in 1992, the Department of Housing and Urban Development (HUD) introduced the program later dubbed HOPE VI, replacing the country\u27s worst public housing projects with mixed-income, mixed-use, low-density new developments while providing targeted social services to low-income residents must have seemed like a worthy pursuit indeed. America\u27s most run-down, crime-ridden, and poverty-plagued residential properties could be transformed into human-scale New Urbanist streetscapes, aesthetically continuous with surrounding areas, that would inspire pride and community in their residents. Perhaps most importantly, HOPE VI\u27s required social service component might have seemed, at last, to recognize certain structural aspects of poverty by providing holistic support services--to include health care, day care, job-training, and transportation--to public housing residents. And, with federal grants of up to $50 million to each project selected, intended to be used to leverage private, philanthropic, and other public financing that can increase the capital available for a given project by several times, the program might have seemed sufficiently well-funded to make good on these promises.Twelve years on, HOPE VI was a mixed blessing

Gendering the Gentrification of Public Housing: HOPE VI\u27s Disparate Impact on Lowest-Income African American Women

HOPE VI must have seemed so promising. When, in 1992, the Department of Housing and Urban Development (HUD) introduced the program later dubbed HOPE VI, replacing the country\u27s worst public housing projects with mixed-income, mixed-use, low-density new developments while providing targeted social services to low-income residents must have seemed like a worthy pursuit indeed. America\u27s most run-down, crime-ridden, and poverty-plagued residential properties could be transformed into human-scale New Urbanist streetscapes, aesthetically continuous with surrounding areas, that would inspire pride and community in their residents. Perhaps most importantly, HOPE VI\u27s required social service component might have seemed, at last, to recognize certain structural aspects of poverty by providing holistic support services--to include health care, day care, job-training, and transportation--to public housing residents. And, with federal grants of up to $50 million to each project selected, intended to be used to leverage private, philanthropic, and other public financing that can increase the capital available for a given project by several times, the program might have seemed sufficiently well-funded to make good on these promises.Twelve years on, HOPE VI was a mixed blessing