Medical repatriation: a Fourteenth Amendment analysis of the international patient transferring of illegal aliens.

• Author: Vincent, Stefanie

1. INTRODUCTION II. THE CRISIS OF NONEMERGENCY CARE A. Health Care in a State of Emergency B. U.S. Health Care for Illegal Aliens C. The Case of Luis Alberto Jimenez D. Between a Rock and a Hard Place, Hospitals Chose Repatriation III. CONSTITUTIONALITY OF MEDICAL REPATRIATION OF ILLEGAL ALIENS A. Fourteenth Amendment B. Due Process C. Equal Protection IV. CONCLUSION I. INTRODUCTION

   Looming at the intersection of health care and immigration--two of the most dysfunctional U.S. systems--the constitutional uncertainties surrounding medical repatriation of illegal aliens have grown too big to ignore. Those ambiguities underscore the dilemma hospitals face when treating uninsured illegal aliens who require long-term care. (1) Rising health care costs, greater numbers of uninsured and unqualified patients, and questions about the scope of federal and state entitlement programs have pushed the boundaries of medical ethics and created an unbearable predicament for acute care hospitals. (2) In an effort to circumvent treacherous financial, ethical, and legal complications, hospitals have been quietly transferring illegal alien patients to medical facilities in their countries of origin. (3)

   The explosive combination of issues and interests at play has left health care providers bereft of legal analysis or regulatory framework to guide their decisions about medical repatriation. (4) The uncertainty surrounding the practice is an obvious problem that has evaded resolution but desperately needs to be resolved. (5) This paper examines the constitutional and policy implications of the surreptitious practice of medical repatriation.

   Part two of this paper gives a brief overview of the current state of the U.S. health care system, with a special focus on how it interacts with illegal aliens. Part two also examines the only court case to address medical repatriation and concludes with a look at the practice from a health care provider's perspective. Part three evaluates potential challenges to medical repatriation under the Due Process Clause and Equal Protection Clause of the Fourteenth Amendment. (6) The general absence of congressional guidance, direct U.S. court precedent, and scholarly analysis would make such constitutional challenges questions of first impression for our courts.

2. THE CRISIS OF NONEMERGENCY CARE

   1. Health Care in a State of Emergency

      The U.S. health care system is in a financial crisis. (7) Staggering costs and the threat of losing insurance coverage has many families struggling to pay their medical bills. (8) Likewise, hospitals and doctors are grappling with their own version of the financial crisis. (9) As recently as 2007, hospitals and doctors shouldered approximately $60 billion in unpaid medical bills annually. (10) In addition, many states are struggling with budget deficits and cutting back on health care funding for hospitals. (11)

      With funds drying up, some hospitals have cut back on staffing and services, (12) and some have found it necessary to shut down their facilities entirely. (13) The overall financial situation has worsened to the point that individual doctors, nurses, and other health care providers are becoming less able and less willing to serve in the communities under the most financial strain. (14) Often, those communities are also home to disproportionally large populations of uninsured patients. (15) Many of those uninsured patients are aliens, both legal and illegal; aliens account for almost 75% of the recent increase in uninsured patients. (16) Illegal aliens are especially likely to be uninsured: They tend to be seasonal or part-time employees, neither of which normally receives employment-based insurance, and they are likewise barred from receiving government insurance and generally cannot afford private insurance. (17)

      Federal law guarantees emergency medical care to all persons, regardless of immigration status, (18) and many uninsured aliens depend on hospital emergency rooms as their primary care providers. (19) As a result, communities with large illegal alien populations bear huge burdens of unreimbursed medical costs. (20) Hospitals along the U.S.-Mexico border are pinched especially hard; as much as two-thirds of their operating budgets are consumed by unreimbursed care for illegal aliens. (21) For example, in 2004, Arizona spent an estimated $400 million on unreimbursed care for illegal aliens. (22)

      On top of emergency care, hospitals must face the much larger unreimbursed costs of treating medical conditions that require more extensive treatment than a visit to the emergency room. Hospital expenses rise quickly once a serious health problem is discovered that requires long-term treatment. As one hospital administrator has noted, "The real problem is if we find an underlying problem." (23) The prominent example of dialysis treatments is illustrative. (24) In California, 1,350 of the 61,000 people receiving dialysis treatments in 2007 were illegal aliens. (25) Treating those illegal aliens cost California taxpayers $51 million. (26) Kidney dialysis, like the treatment of many other chronic ailments, continues for the duration of the patient's life, the cumulative cost of which can easily top $1 million per patient. (27)

      Already pinched by tighter budgets, hospitals are struggling to strike a balance between concerns for their own viability and the ethical duties they owe patients. (28) This balancing act has brought the threat of insolvency to the fore, and hospitals are placing a premium on financial efficiency as they work to avoid having to close their doors to everyone. To better manage their limited resources, hospitals are prioritizing claims and making tough choices. (29)

   2. U.S. Health Care for Illegal Aliens

      The federal government's general policy has been that illegal aliens are ineligible for federal or state public benefits, including health care. (30) Three federal regulations play an important role in determining access to--and the extent of--health care available to illegal aliens: Medicaid, the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA), and the Emergency Medical Treatment and Active Labor Act (EMTALA). This section provides a brief overview of each of the three regulations and how they affect health care for illegal aliens.

      1. Medicaid

         Medicaid is a national health care program that was established as part of the Social Security Act of 1965 and sets broad federal guidelines within which each state can define its own regulatory structure. (31) The program allows states to use federal money to defer state health care costs, if the state complies with federal requirements, and to pay for services the state may not be able to cover on its own. (32) Medicaid's purpose is to "furnish medical assistance to persons whose income and resources are insufficient to meet the costs of necessary medical care and services." (33) To that end, though illegal aliens are generally barred from receiving Medicaid benefits, a narrow exception has been established for emergency medical care. (34) Therefore, illegal aliens can benefit under Medicaid, but only in the specific case of stabilizing treatments for an emergency medical condition. (35)

      2. Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA)

         Passed in 1996, PRWORA announced Congress's new position on the nexus between welfare and immigration, (36) and swiftly "end[ed] welfare as we know it." (37) The legislation severely restricted aliens' access to health care by narrowly defining the specific subsets of aliens eligible for Medicaid. (38) Those aliens who do not fit into the Act's narrow definition of "qualified" are "not eligible for any State or local public benefits." (39)

         PRWORA segregates the alien population into two categories: "qualified" and "unqualified." (40) The definition of a "qualified" alien is very narrow; it excludes aliens permanently residing under color of law, recent immigrants, and illegal aliens. (41) Though illegal aliens had never been eligible for Medicaid benefits in the past, PRWORA nonetheless affected their access to health care. (42) Before PRWORA, it was customary for publicly funded health care providers to treat aliens regardless of immigration status. (43) This custom changed when PRWORA specifically prohibited using Medicaid funds to provide nonemergency health care to illegal aliens. (44)

         More recently, Congress moved to provide limited benefits to certain groups of aliens. (45) Illegal aliens, however, remain barred from virtually all access to health care unless they are able to finance it privately. (46)

      3. Emergency Medical Treatment and Active Labor Act (EMTALA)

         In 1985, Congress passed EMTALA to stop the widespread practice of "patient dumping," by which hospitals denied emergency health care to poor or uninsured patients, often without giving them so much as a cursory examination. (47) EMTALA applies to any hospital that has an emergency room and receives federal funding. (48)

         EMTALA imposes two distinct duties on hospitals affected by the statute. (49) First, the arrival of a patient at the hospital triggers a duty to appropriately screen for an emergency medical condition. (50) In the event that no emergency medical condition is found, the hospital's duty is terminated. (51) If an emergency medical condition exists, the second duty is triggered: The hospital is obligated to stabilize the condition and provide any treatment "necessary to assure, within reasonable medical probability, that no material deterioration of the condition is likely to result from or occur during the transfer of the individual...." (52)

         Once a patient is stabilized, EMTALA allows him to be transferred to an appropriate medical facility. (53) An appropriate facility is any facility that can meet the patient's needs. (54) A transferring hospital must provide medical treatment within its capacity to minimize risks to the patient's...