Medical Care for Haitians: US Announces Funding

This past Sunday, the White House resumed military airlift of injured Haitians into the United States.  The halt on incoming Haitian patients had happened just days earlier, springing from the economic and logistic fears of many state officials of Florida, where the majority of patients from Haiti were being sent for care.  After finding a solution to the hospital capacity issue in Florida,  and fully knowing that they could not keep certain patients in the medically hazardous environment which is Haiti, White House officials reopened U.S. hospital doors to  badly injured patients.  Yet, the resounding question “who is going to pay for this emergency care?” remains.

The costs are not insignificant.  One Florida hospital executive estimates costs to her hospital alone to be in the millions, and while she hopes some of this cost will be lessened through federal government assistance, other hospitals have already started to initiate reimbursement for the costs themselves through private donations.  In addition, many doctors and nurses are volunteering their services to help reduce the high cost of the care.

The U.S. Department of Health and Human Services announced on Monday that they would supply funding for the emergency care through the National Disaster Medical System, which is usually accessed only in times of domestic emergencies. As described in the announcement, “activation will allow U.S. hospitals that treat Haitian patients evacuated with life-threatening injuries due to the earthquake, to receive federal reimbursement for the costs they incur.”  The reimbursement for the care to Haitians is equal to 110% of Medicare rates.

Since the announcement of aid through the National Disaster Medical System, hospitals in other areas, such as Atlanta, are agreeing to treat patients.  Hospitals in the Atlanta and Florida area are able to provide assistance due to their proximity to Haiti and their “extensive medical resources.”  Other hospitals in the New York, New Jersey, Philadelphia, and Boston areas have been notified that their medical centers may also be tapped  for help in treating the Haitian patients.

Because some of the patients that are being treated at American hospitals are American citizens who were in Haiti when the earthquake hit, some of the medical care can be reimbursed through the insurance coverage that those patients may already have or be eligible to receive.  Interestingly, Haitians who are not legal residents of the United States might also qualify for insurance through Medicaid, but to qualify, the patients would have to be granted “Humanitarian Parole” by U.S. Citizenship and Immigration Services.  Up until this point, Humanitarian Parole visas, which last for a year, have mostly been granted to orphans who were already in the process of being adopted before January 12^th.  Only 50 Humanitarian Parole visas have been granted to those who were sent to the United States for health care; due to the difficulty in tracking patients after their care is complete, the Immigration Services is hesitant to grant more such visas.

While the federal government appears to have systems in place to aid Haitians who are in dire need of medical care for now, questions about long term help still linger.  International aid experts want to see systems of sustainability put into place so that Haiti can once again stand on its own after the foreign aid ends.  Maybe our nation’s leaders will be able to give to Haiti the health care reform it needs, even if they can’t give it to America itself.

Intersecting Issues: Immigration Reform and Health Care Reform

The LA Times reported this past week that the pending health care reform would negatively affect rather than improve the health of California’s citizens.  Why would this be the case?  Nearly thirty percent of the state’s population consists of immigrants.  In L.A. County itself, there are more uninsured residents than any other U.S. county; as the L.A. Times calculates, the majority of that uninsured population are likely immigrants:

It’s a safe bet that the majority of those people are immigrants, because health officials say that 40% of all the patients treated at county hospitals are undocumented. In recognition of that fact and of the hospitals’ legal and ethical responsibilities to treat the uninsured ill and injured — regardless of their immigration status — Washington currently subsidizes their care at facilities, like L.A. County’s, with “disproportionate” numbers of such patients.

The House bill for health care reform would reduce the funding for such subsidies modestly, while the Senate bill would significantly decrease payments towards the subsidies.  Whatever the outcome of the compromise bill, L.A. County will be left worse off.

As we know, neither the House nor the Senate bill would cover undocumented immigrants, or allow them to receive subsidies or tax credits for purchasing insurance.  However, even if the country will not be paying for the health coverage of such immigrants, it will be and already is paying for the high costs of having immigrants treated in emergency rooms, since many hospitals, such as those mentioned in the L.A. Times piece above, treat patients regardless of their immigration status.  Hospitals that provide emergency services and participate in Medicare are required to treat all who come to them for emergency services by the Emergency Medical Treatment and Active Labor Act; some of the costs for the emergency care are covered through Medicaid, while others result in expenditures that the hospitals incur as debt.  The effects of the debt can result in higher hospital fees for other patients.  But greater hospital charge rates for the uninsured are a matter of contention, and tend to obscure the actual value of services rendered and unpaid for. Having said that, it is not unimaginable to think that provisions in the health care bills may actually drive up medical expenses for some segments of the population–and that such increased expenses will have significant adverse affect upon the whole.

Again, the House bill does a better job than the Senate version does at addressing the issue of immigrant health, as the House would allow for undocumented immigrants to participate in the health insurance exchange by permitting them to purchase insurance policies. While the House bill would require immigrants to pay for the policies entirely, the Senate bill does not allow for immigrants to participate whatsoever.  It is worth considering that the immigrant community consists largely of young, healthy individuals; the impact upon the risk pool of their inclusion is no small thing.

Some health care advocates believe that resolution lies in immigration reform, so that immigrants can become citizens of the United States.  An LA Times story about a UCLA study released this last week is also worth considering:

The report said that legalization, along with a program that allows for future immigration based on the labor market, would create jobs, increase wages and generate more tax revenue. Comprehensive immigration reform would add an estimated $1.5 trillion to the U.S. gross domestic product over 10 years, according to the report.

Though many Americans seem to feel that immigrants are taking jobs away from unemployed American citizens, CNN writer Ruben Navarrette, Jr. points out that much of the labor immigrants participate in is in areas of work that Americans themselves have shunned.

Behind the politics of both health and immigration reforms lies the compelling stories of immigrants who have labored in our county and who are in desperate need of health care.  While data and numbers can show the cost-benefits of allowing immigrants to participate in health care, the issue of treating ill humans seems an ethical one– not something to be justified by statistics alone.  But at the heart of this is the simple question, is healthcare a  human right? Or is it a luxury–a “treat,” if you will,  to be dispensed according to the rules of carrots and sticks? and not just a luxury.

Immigrants, Health Reform, and “Lies”

In a much-anticipated prime time address to Congress, President Obama made the case for health care reform.  One ostensible goal of the speech was to correct misinformation about the bills proposed by Congress.  As a scholar who studies both health care and immigration (and sometimes the intersection between the two), I’ve grown increasingly frustrated with the misconceptions surrounding this issue — and I very much hoped the President would deflate the myth that health reform would provide federal benefits to undocumented immigrants.

Of course, when President Obama made this very point (”The reforms I’m proposing would not apply to those who are here illegally”), he was greeted with a heckle from South Carolina Representative Joe Wilson, who shouted “You lie!”  Although Rep. Wilson later apologized for his “lack of civility,” he didn’t recant the basic factual assertion, making clear that he still disagreed with the President’s statement that health reform doesn’t cover undocumented immigrants.  Of course, the media has jumped on this story, but perhaps unsurprisingly, few bothered to clarify the underlying factual dispute.

Neither bill published by the House or Senate covers undocumented immigrants.  In fact, both bills state in pretty plain terms that they don’t do it.  The House bill, titled America’s Affordable Health Choices Act of 2009, states in Section 242 that those not lawfully present in the United States are not eligible for insurance subsidies or tax credits.  To make it even more clear, Section 246 is titled “No Federal Payment for Undocumented Aliens,” and states “Nothing in this subtitle shall allow Federal payments for affordability credits on behalf of individuals who are not lawfully present in the United States.”

Likewise, the Senate Health, Education, Labor, and Pension Committee’s bill, titled the Affordable Health Choices Act, states in Section 3111(h) that “Nothing in this Act shall allow Federal payments for individuals who are not lawfully present in the United States.”  The Senate Finance Committee has yet to release its bill, but it’s a good bet that undocumented immigrants similarly will be excluded.

Although nothing in the bills apparently would prohibit undocumented immigrants from purchasing health insurance in the new national marketplace (called an “exchange” and a “gateway” in the House and Senate bills), it’s not clear why anyone would take issue with immigrants purchasing insurance on their own, without federal subsidies.  Moreover, although nothing in the bills seems to alter federal funding for emergency care provided to immigrants, nothing creates such a benefit either — thus undercutting Rep. Wilson’s contention with the President.

This controversy should remind us that immigrants remain in a sort of health care purgatory, caught in our two most dysfunctional systems — immigration and health care.  In the mid-1990s, Congress severely limited immigrant access to programs like Medicaid as part of welfare reform, making it difficult for even lawful immigrants to enroll.  In fact, even lawful immigrants aren’t eligible for Medicaid for five years after entering the United States — and various peculiarities of immigration law often push this waiting period to ten years.  At the same time, immigrants do receive indirect federal funding for health care through the Emergency Medical Treatment and Active Labor Act (EMTALA), which requires hospitals with emergency departments to screen and at least stabilize patients presenting with emergent conditions.  Thus, hospitals must provide emergency care regardless of the patient’s immigration status.

Unfortunately, most immigrants are ineligible for means-tested public insurance programs like Medicaid.  This regulatory framework has led to “medical repatriation,” in which hospitals effectively deport immigrant patients to unload expensive long-term care burdens.  Of course, hospitals — most of which are run by state and local governments — complain about unfunded federal mandates like EMTALA.  Hospitals can be “stuck” treating immigrants whose medical needs have shifted from acute to long-term (as with the car accident victim who needs neurological rehabilitation and nursing care).  As Prof. Boozang discussed, a growing number have begun “repatriating” immigrant patients by sending them back to their country of origin — without consulting immigration officials — sometimes by purchasing commercial plane tickets or even hiring air ambulances.

Certainly, there are more humane ways to handle health care for immigrants.  California, for example, legalized cross-border health insurance, thus allowing immigrants living in the state to purchase insurance with lower premiums and deductibles that covers care provided in Mexico.  Arizona and Texas have considered similar legislation, to no avail.  Recently, UCLA researchers estimated that over 950,000 people travel from California to Mexico for medical care every year.  For a population being left out of health care reform, traveling to Mexico for care may be the future — whether voluntary or not.

Medical Repatriation: Montejo v. Martin Memorial Medical Center

[Ed. note: Today's post comes from Dean Kathleen M. Boozang and Erika M. Lopes.  Erika is a Seton Hall Law student and a graduate of Trinity College, Connecticut, where she majored in Political Science. Ms. Lopes is a research assistant to Kathleen M. Boozang, and formerly worked as a litigation paralegal specializing in both Class Action and Foreign Corrupt Practices Act matters for Skadden, Arps, Slate, Meagher & Flom, LLP.]

A Florida jury won’t resolve the issue of how to provide health care to severely injured undocumented aliens, but it may signal to hospitals that engage in “medical repatriation” whether there are any legal risks attendant to the practice.  The case, Montejo v. Martin Memorial Medical Center, involves a claim of false imprisonment brought by the legal guardian of a patient transported by private plane in 2003 to Guatemala for rehabilitative care following severe brain injuries sustained in a car accident involving a drunken driver and two deaths.

Mr. Jimenez remained a patient in Martin Memorial Hospital for almost three years following the accident, incurring $1.5 million in medical bills, of which only $80,000 was reimbursed by Medicaid. As reported by local newspapers (here and here) the hospital CEO testified last week that the transfer to Guatemala was motivated by the fact that Mr. Jimenez missed his family and country — the medical staff came up with the idea to return the patient to “his own culture” where he would “be around his language . . . and [] be in a situation that was more relaxed than an acute care hospital.”  According to the hospital executive, the transport to Guatemala had nothing to do with the financial burden to the hospital of Mr. Jimenez’s care.  While the Guatemalan health ministry agreed to assume Mr. Jimenez’s care, a Guatemalan physician who testified for the plaintiff claimed that Guatemala does not have the kind of rehabilitation facility required by Mr. Jimenez’s condition.  In addition, the jury was presented with a 2003 affidavit from the vice consul for the Consulate General of Guatemala, in Miami stating that she had no authority to place Jimenez in a facility, no doctor to care for him and no way to pay for medical care he needed.  Mr. Jimenez, 37, currently lives in a remote village where he is largely cared for by his elderly mother.

The guardianship plan prepared for Jimenez, filed short of two years after his accident, recommended twenty-four hour skilled care.  The hospital intervened in the guardianship proceeding claiming that it was not the appropriate facility for the long-term rehabilitative care required.  Responding to the guardian’s objection to the hospital’s planned repatriation, a trial court directed the guardian to stop frustrating the hospital’s plan for relocation, and directed the hospital to provide a suitable escort and medical support.  On the day that the hospital was due to respond to a motion to stay, Jimenez was transported to Guatemala via private plane.  An appellate court later reversed the trial court order, citing the insufficient evidence that the patient would receive adequate care in Guatemala, a requirement of federal law directing hospitals to prepare appropriate discharge plans for patients.  42 C.F.R. § 482.43.

The guardian’s false imprisonment suit against the hospital was initially dismissed after the hospital argued that Montejo could not demonstrate that the detention was unreasonable and unwarranted — a necessary element of a false imprisonment claim.  The hospital contended that its actions were executed pursuant to a then-valid court order, and were therefore entitled to qualified or quasi-immunity. The appellate court disagreed on the grounds that the actions were not taken during the course of a judicial proceeding nor in an effort to prosecute or defend a lawsuit, but were carried out in the vindication or enforcement of a purely private right.  The court concluded that affording absolute immunity from tort liability would be an unwarranted and improper extension of the litigation privilege.  Accordingly, the appellate court reversed the trial court’s dismissal of the false imprisonment claim, and remanded to the lower court for a determination of whether the hospital’s actions were unwarranted and unreasonable under the circumstances.

The guardian is seeking the cost of Mr. Jimenez’s care and punitive damages from the hospital.

Health Care Reform & Undocumented Aliens

Several commentators have already observed the absence of any discussion of undocumented aliens in the discussion about health care reform.  And yet, the issue is huge, particularly for those ten or so states in which these individuals disproportionately live and work.  The June 2009 issue of American Journal of Kidney Disease includes an article on a survey of nephrologists^[1] who report an increasing number of undocumented aliens with End Stage Renal Disease (ESRD).  Unsurprisingly, access to care for these individuals is inadequate and shrinking, with about one third of physicians reporting undocumented patients to be wholly reliant on emergency dialysis, which carries with it higher cost and morbidity; 67%, however, reported availability of long-term dialysis care.

A significant minority of physicians reported advising their undocumented patients to move to another state or country to access care, even though accessing appropriate renal care is difficult due to scarcity in Mexico, the native country of the majority of undocumented aliens in the United States.^[2] On the other hand, undocumented aliens present much younger (40’s) with ESRD, which causes many nephrologists to argue that provision of kidney transplants would be a much less costly care approach, long-term.  Federal law prohibits use of Medicaid funds for transplants for this population.^[3]

Many hospitals find themselves “stuck” with chronically ill patients who no longer require acute care, but require discharge to nursing homes or rehabilitation facilities because their debilitation is so severe.  These include victims of car accidents and crimes, for example.  These patients originally appear in hospital emergency rooms in acute distress, thereby requiring the hospital to treat and stabilize pursuant to their EMTALA obligations.  Medicaid has in the past made some monies available to reimburse hospitals for this episode of care (although it was never enough, according to the hospitals, and while the most recent authorization law expired in 2008, funds remained for distribution into 2009).  Further, hospitals are required by Medicare Conditions of Participation to prepare and implement an appropriate discharge plan.  This becomes impossible to accomplish if there is no hope of reimbursement for the subsequent care facility.

Assuming there are Medicaid monies to be had for the emergency care of this population, courts have been split over the question of whether the Medicaid emergency services coverage provision covers the long-term and chronic aftermath of an acute situation.  Specifically, the question is whether the reimbursement is limited to the treatment required to stabilize the patient with leukemia, ESRD, or brain injury, or whether it extends to the post-stabilization care required to prevent a future emergency condition.   Greenery Rehabilitation Group v. New York City Human Resources Administration, 150 F.3d 226 (1998), concluded that if the patients’ post-emergency injuries were properly classified as chronic rather than acute, they do not qualify for Medicaid coverage.  Scottsdale Healthcare Inc., v. Arizona Health Care Cost Containment Syst. Admin., 75 P.3d 91 (D.C. Ariz. 2003), rejected the Second Circuit’s focus on stabilization as too narrow, holding instead that the “focus must be on whether the patient’s current medical condition–whether it is the initial injury that led to admission, a condition directly resulting from that injury, or a wholly separate condition–is a non-chronic condition presently manifesting itself by acute symptoms of sufficient severity that the absence of immediate medical treatment could result” in an emergency condition. Id. at 98.  The issue has also been taken up in the last few years by the Connecticut and North Carolina Supreme Courts, in which both plaintiffs’ received emergency room diagnoses of leukemia and sought coverage of their subsequent chemotherapy treatments — these Courts also split on the issue.

These cases are merely a snapshot of a much larger issue.  A health care reform bill that doesn’t address the health care of both legal and illegal aliens will be inadequate, and adversely and disproportionately affect the several states where large numbers of immigrants live, work, and school their children.  The solution must address access to primary and emergency care as well as treatment for chronic conditions.  Those states whose workers compensation systems are inadequate in their coverage of immigrants disabled in the course of their employment might also ameliorate the crisis presented by this population by reform in this area as well.

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[1] Hurley & Kemp, et al., Care of Undocumented Individuals with ESRD: A National Survey of U.S. Nephrologists, 53 Am. J. Kidney Disease 940 (2009).

[2] Id. at 947.

[3] CMS Uniform Policy Manual § 3000.01