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

Verville Air Coach brochure, 1918

[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.