Access to Healthcare for
Unauthorized Workers
Robert L. Kaman, JD, PhD
The Facts
• Twelve million unauthorized persons
currently in the US
– Five hundred thousand enter each year
– Typical immigrant is a young (26-29) healthy
male
• 58% adult male, 26% adult female, 16% children
– Most common health care problems are postnatal complications and chronic disease
• Diabetes, heart disease, hypertension
“What is Right?”
• “…nor shall any State …deny to any person within its
jurisdiction the equal protection of the laws.” (US Constitution 14
th
Amendment)
• Everyone has the right to a standard of living adequate
for the health and well-being of himself and of his family,
including…medical care…” Article 25, Universal Declaration of Human Rights)
(
• States Parties …guarantee the right of everyone, without
distinction as to race, color, or national or ethnic origin, to
equality before the law, notably in the enjoyment of the
….right to public health, medical care, social security and
social services. (Article 5 (e) iv, International Convention on the Elimination of All Forms of Racial
Discrimination)
• Governments have a responsibility for the health of their
peoples which can be fulfilled only by the provision of
adequate health and social measures. (Charter of the World Health
Organization)
What is the Law?
• Federal Government may selectively govern health care
– Taxing and Spending Power; Commerce Clause
– EMTALA: hospitals must provide emergency health care
– Illegal Immigration Reform and Immigrant Responsibility Act of 1996:
• Illegal immigrants are ineligible for Medicaid
• Legal immigrants must wait five years before receiving Medicaid
– “Emergency Medicaid” in Medicaid regulations:
• Allows immigrants, legal or illegal, to get emergency and trauma care at
hospitals, but
• Single adults over 18 and childless couples under 65 are excluded
• Health care is governed at the level of state law in the US
(by omission):
– “The powers not delegated to the United States by the Constitution,
nor prohibited by it to the States, are reserved to the States
respectively, or to the people.”
- 10th Amendment, US Constitution
State Law
• California:
– Proposition 187: “Publicly-funded health care
facilities must deny care, except in medical
emergencies, to people who can not prove US
citizenship or legal residency status.”
• Passed in 1994
• Not implemented due to state courts finding that parts
conflicted with existing state law
• Subsequently, federal court found that 187 was pre-empted
by federal law.
• Texas:
Texas Law
• Recognizes that EMTALA requires provision of
emergency room care, immunizations and
treatment for communicable diseases to illegal
immigrants.
• Must deny non-emergency care unless state
legislation has been enacted to provide it. Twentythree states have passed such law.
– Texas has not.
– “…Texas hospitals could lose millions of dollars in federal
aid if they continued offering such services.”
-Former Texas Attorney General John Cornyn (2000)
Second Opinion
• Texas State Senator Jane Nelson (Chair of the
Health and Human Services Committee) asked
the current attorney General, Greg Abbott, in
2004, if physicians could legally see
undocumented immigrants with impunity:
– “Does Section 285.201 of the Texas Health and
Safety Code require a hospital district to provide nonemergency care to undocumented persons who are
otherwise ineligible for those benefits under federal
law.”
Reply
• “…this chapter affirmatively establishes eligibility
for a person who would otherwise be ineligible
under 8 USC Section 1621 (a), provided that
only local funds are utilized for the provision of
non-emergency public health benefits. A person
is not considered a resident of a governmental
entity or hospital district if the person attempted
to establish residence solely to obtain health
care assistance.”
Greg Abbott, Texas Attorney General, 2004
What is the Practice?
• Unauthorized persons may seek emergency care, immunizations
and treatment for infectious disease (EMTALA)
– Crowded emergency rooms
– Late, more costly stages of illness
• Unauthorized persons use disproportionately fewer medical services
and contribute less to health care costs in relation to their population
share
– Better relative health
– Lack of health insurance
– Some evidence exists that despite an overall surplus of payments over
benefits, local hospitals may not receive enough payment to cover
services to undocumented persons.
• “How will you pay?”
– Cash: “Step right in.”
– Insurance: not likely – only 22% of unauthorized immigrants have health
insurance (The Rand Company)
– I can’t pay: “May I see your papers?”
• Generally, proof of county residence
Parkland Hospital, Dallas TX
• “When the undocumented come to Parkland, it is more important
that they live in Dallas County since we don’t ask for nationality. We
get criticized, but we feel that preventive services and primary care
can often prevent the need for care in later emergencies.”
• “We treat undocumented people as we treat everyone, so infectious
diseases are not different. However, we use this analogy (sic) to
argue with those who want us to turn them away. Surprisingly, these
right wingers do want us to treat their domestic worker with TB (or
their waiter in a good Mexican restaurant). They also want immunity
when challenged and they don’t want the ED congested with nonemergencies when they (the right wingers) have a heart attack.
Usually we can win them over with such analogies. We can also
show an economic advantage to providing prenatal care for
example. Also, the IOM published a study in ’97 (repeated in the
last couple of years) which showed that the undocumented pay SS
and Medicare taxes, for which they receive no benefit.”
– Parkland Hospital Administrator, 2008
John Peter Smith – Fort Worth, TX
• JPS welcomes all pregnant females into its maternity
program, including prenatal, natal, and post-natal care.
– Has a “large” enrolment of unauthorized women
– Receives Medicaid reimbursement
• JPS requires documentation of “identity” of all patients,
proof of county residence, and method of payment
– Does not require proof of citizenship
– Reputation among immigrant community is that they are not
welcomed; thus, many do not seek care
• JPS excludes unauthorized immigrants from its charity
program that provides preventive healthcare
Duty to Treat
• Physicians and/or hospitals do not have a duty
to treat, except in an emergency.
• Does an American citizen have a right to health
care? How about a non-citizen in the country?
What is the cost to society?
• A health care provider’s ethical responsibility?
• Justification for restricting health care for illegal
immigrants:
– Inherent rights
– Taxation
– Benefits
Is Health Care a Right?
• Seminal case involves education, not health care:
– Plyler v. Doe, 457 US 202 (1982)
• May a state (Texas) deny to undocumented school-age children the free
public education that it provides to children who are citizens of the US or
legally admitted aliens?
• “In determining the rationality of this law, we may take into account its costs
to the Nation and to the innocent children who are its victims. In light of
these costs, the discrimination in this law can hardly be considered rational
unless it furthers some substantial goal of the State…
• It is difficult to understand what the State hopes to achieve by promoting the
creation and perpetuation of a subclass of illiterates within our boundaries,
adding to the problems and costs of unemployment, welfare and crime.
• If such a denial is made of free public education to a discrete group of
innocent children it offers to other children residing within its borders, it must
be justified by furthering some substantial state interest. No such showing
was made. Court of Appeals decision, which held that illegal aliens were
entitled to the protection of the Equal Protection Clause (14th Amendment),
and the Texas law which denied education to them was unconstitutional, was
affirmed.
Do the courts view healthcare in the same way?
•
•
•
•
•
Mathews v. Diaz, 426 US 67 (1976)
– Congress may condition an alien’s eligibility for participation in a federal medical
insurance program on (time of residence in this country) and this classification does
not deprive aliens of liberty or property without due process of law
Wilmington v. Manlove, 174 A.2d 135, (Del. 1961)
– “…private hospitals owe the public no duty to accept any patient for nonemergency care not desired by it, and it is not necessary to assign any reason for
its refusal. Hospital does have a duty to provide emergency care.
Crespin v. Coye 27 Cal. App.4th 700 (and others)
– The amendments enacted by SB 485 which require all applicants to declare
whether they are US citizens, nationals or aliens with satisfactory immigration
status is constitutional.
Perez v. Health and Social Services, 91 NM 334 (1977)
– Denial of claim for state-provided health services was reversed for person who lived
for over seven years in the state, intended to remain; state’s refusal based on
federal immigration control was not applicable, since state law providing service
was wholly state funded
St. Joseph’s Hospital v. Maricopa County, 138 Ariz. 127, 673 P.2nd (App. 1983);
Reconsid. Den’d, No. 17556, October 23, 1984.
– Undocumented aliens may qualify as county residents under the statutes
mandating that a county reimburse a private hospital for providing emergency
medical care.
Question
• If the US prison population, regardless of
citizenship, is guaranteed free access to health
care, in compliance with the Eighth Amendment
prohibition against cruel and unusual
punishment,
– Can we argue that a denial of health care to
unauthorized immigrants is a violation of the Eighth
Amendment, or
– Should we urge unauthorized immigrants commit a
crime to get imprisoned when they need health care?
Summary
• Undocumented persons have limited access to health
care
– Emergency care
– Maternal care
– Non-emergency care if funded by non-tax dollars
• Health care is not a right
–
–
–
–
Equal protection not violated
No duty to treat
May ask for proof of residency (citizenship?) if ask everyone
Different than education
• Result is undocumented persons do not seek care until it
is an emergency, more costly, and less effective.