Advancing health equity requires eliminating disparities in health care access and health outcomes and delivering quality health care across all communities.

Health care providers, payors, employers, consumers, and vendors all have unique and pivotal roles in building a stronger and more equitable health care system, one that puts patients at the center of their care.

As a health care “super boutique,” with approximately 150 attorneys focused on health law, as well as thought leaders on health-equity-related matters, Epstein Becker Green is ideally suited to advise health care providers, payors, and others on how to contribute to equitable health care delivery and take advantage of the business opportunities associated with federal- and state-level investments in health equity. In collaboration with our health care consulting affiliate, EBG Advisors, we are able to provide clients with a comprehensive solution for creating and advancing their health equity strategy.

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Understanding the Meaning of “Health Equity” and What Stakeholders Need to Consider

Health equity,” according to the Centers for Medicare & Medicaid Services (CMS), means that everyone is given “a fair and just opportunity to attain their optimal health regardless of race, ethnicity, disability, sexual orientation, gender identity, socioeconomic status, geography, preferred language, or other factors that affect access to care and health outcomes.”  

Stakeholders interested in advancing health equity should be aware of the following:

  • the various laws protecting patient-generated information and the role that information plays in informing health equity-related needs;
  • the availability of and barriers to accessing and sharing protected health information and non-protected health information across and between covered entities and non-covered entities;
  • the regulatory and contracting concerns when forming partnerships between providers, payors, employers, and vendors; and
  • how to translate health equity-related accomplishments into opportunities under value-based arrangements and to mitigate downside risk in endeavoring to close the most complex gaps in care.

Below, we highlight some of the areas in which our Health Equity team can provide assistance.

Collecting, Analyzing, and Securing Data

To identify health disparities and drive their strategy to advance health equity, health care providers need comprehensive, interoperable individual-level demographic and social determinants of health data. In addition to clinical data, providers need health- and non-health-related data sets from other stakeholders, including federal, state, and local governments; community health organizations; pharmacies; and payors. Critical challenges exist regarding (i) ensuring compliance with applicable privacy laws, (ii) achieving interoperability and an information technology ecosystem that allows for the right data to be available to the right people, (iii) standardizing data collected from different sources, and (iv) properly securing any collected data until its disposition.   

Clients rely on Epstein Becker Green to help them assess their data needs and then interact and build relationships with government agencies and other stakeholders to obtain the relevant data sets. We also provide advice on how to integrate and analyze all the collected data (which may require the use of artificial intelligence tools) and on how to use the findings to help identify patterns and trends in health disparities that can inform efforts to improve patient care and keep patients healthy.

Entities must be mindful of the necessity to ensure the privacy and security of individuals’ health information, including the protection against data breaches and the collection and use of data in a manner that complies with federal and state data privacy laws and regulations.

We help our clients ensure compliance with the Federal Trade Commission’s consumer protection regulations, the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule, and various state data privacy laws. Our team includes industry-recognized privacy and security professionals who counsel clients on addressing privacy laws and data security issues while exchanging and using data to address health equity.

Managing Risk and Contracting and Licensure Issues Arising from Coordinating Patients’ Care

To further health equity, more and more health care providers are taking on the task of coordinating care for their patients, a function previously handled by payors. However, this shift of care coordination to health care providers increases providers’ risk of liability, as they must demonstrate that they’re taking actions to help their patients stay healthier. And when care coordination requires organizing care activities among different services and providers located across state lines, state licensure requirements may be triggered.

Our Health Equity team provides strategic counsel to health care providers on how best to mitigate the risk of liability while coordinating their patients’ care. We also provide clients with a thorough and diligent review of applicable state laws, regulations, and board policies for coordinating care activities extending beyond state boundaries. We understand the state-by-state nuances of the state laws governing licensed professional services, and we work closely with our clients to ensure state licensure compliance.

Ensuring Compliance with Health Equity-Related Accreditation Requirements

The Joint Commission (TJC), one of the leading accrediting organizations of health care entities, added to the Leadership chapter a new health equity standard applicable to hospitals and certain ambulatory health care organizations and behavioral health care organizations. The new standard, which took effect on January 1, 2023, contains six requirements designed to encourage hospitals to establish leaders and standardized structures and processes to detect and address health care disparities.

Our Health Equity team helps health care facilities seeking accreditation or re-accreditation by accreditation entities ensure that they address the six requirements under the new health equity standard in an effective way, consistent with the facilities’ goals and business objectives. We also assist health care facilities in preparing for audits by TJC.

Using Value-Based Contracting to Reward Reductions in Disparities

Value-based contracts are innovative payment models in which health care providers are reimbursed based on the quality and outcomes of the care they deliver rather than the volume of services provided. They’re also an important tool to incentivize providers to address health disparities within their attributed population. For example, value-based contracts can be crafted to reward reductions in health and health care disparities, require payments for equity-focused care delivery and performance, and establish performance metrics to specifically address disparities within the population.

Our Health Equity team is experienced at developing solutions that integrate legal and business issues. For example, our team can (i) evaluate the economics of the arrangement, (ii) design the integrated care model and identify applicable targets and benchmarks, (iii) form the provider networks to deliver the care, and (iv) negotiate the terms of the agreement on a payor-by-payor or provider-by-provider basis.

Taking Advantage of Opportunities Presented in Traditional Medicare

CMS, through both its established Medicare Shared Savings Program (MSSP) and its various Center for Medicare and Medicaid Innovation (CMMI) pilot programs, is making significant investments in providers and provider network entities interested in better coordinating and managing care for traditional Medicare enrollees.

  • MSSP: CMS has committed advanced investment payments to accountable care organizations (ACOs) looking to be first-time participants in MSSP, especially for ACOs with a higher prevalence of low-income enrollees. The program also incentivized incumbent ACOs by offering a health equity adjustment, which will enhance an ACO’s quality scores and, thus, the ACO’s opportunity for shared savings.
  • ACO Realizing Equity, Access, and Community Health (REACH): Under the ACO REACH Model, CMMI pays participating ACOs based on measurable reductions in health disparities within their participating beneficiaries. Among the ACO REACH Model’s requirements, a participating ACO must develop and implement a health equity plan that describes the ACO’s community outreach and care management efforts.

Our Health Equity team advises stakeholders across the industry about the expected innovations and programmatic changes, the opportunities they present, and the best way to position themselves to take advantage of such opportunities.

Representative Experience

  • Representing a national Medicaid managed care organization (MCO) operating in eight states in developing a value-based model. Considerations include aligning the MCO’s health equity vision with its information technology capabilities. We are also helping MCOs develop health equity, value-based arrangements that are consistent with their information technology capabilities. This includes identifying health equity benchmarks and metrics and working with the plan and the business units to figure out what measurement and tracking is feasible.

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