Medical Repatriation: Hospitals Deporting Sick Patients

by Christine Chiu, Staff Attorney

Everyone knows to go to the emergency room in a medical crisis. We believe that the doctors there will take care of us and get us the treatment that we need. The emergency room doesn’t turn anyone away, regardless of ability to pay or immigration status. But what many people don’t know is what some hospitals do with seriously injured, undocumented patients once they are stabilized once it is discovered that they are uninsured and cannot pay for ongoing care.

Some bad actor hospitals in this situation take it upon themselves to deport ill or injured immigrant patients outside of the federal immigration process. This practice is known as forced medical repatriation.

By law, hospitals must provide emergency treatment to everyone regardless of immigration status or insurance coverage. However, once the patient is stabilized, hospitals are not reimbursed for any continued care that an uninsured patient may need. This situation may arise, for example, with comatose patients, patients needing regular dialysis, and patients with serious mental illness. The law prohibits hospitals from discharging a patient without arranging for transfer to an appropriate facility that ensures the patient’s health and safety. Yet long-term care facilities, rehabilitation centers, and nursing homes will not accept patients without insurance. In order to avoid continuing to provide care for these patients, then, some hospitals instead send immigrant patients to their home countries, frequently making inadequate or no arrangements for medical care upon arrival.

Only the federal government has the authority to deport immigrants, but these hospitals are taking it upon themselves to contact consulates, obtain passports, buy plane tickets, and even charter private planes to send undocumented patients abroad. In so doing, they are denying these patients both due process in immigration proceedings and the chance to consent to and participate in decisions about their own care.

While this practice may save the hospital some money, it can also come at the cost of the patient’s life. NYLPI and the Seton Hall Law School Center for Social Justice issued a report documenting more than 800 cases of attempted or successful medical repatriations across the United States in the past six years, including a nineteen-year-old girl who died shortly after being wheeled out of a hospital back entrance typically used for garbage disposal and transferred to Mexico, and a car accident victim who died shortly after being abandoned on the tarmac at an airport in Guatemala. Just this past summer, a Polish man who had lived in the United States for thirty years was put on a plane by a New Jersey hospital while unconscious; when he awoke, he found himself  back in Poland.

The practice of medical repatriation takes place largely in secret, so it is difficult to estimate the actual number of repatriations taking place around the country. What we do know is that undocumented immigrants will be at higher risk of repatriation starting next year when the federal government reduces charity care funding, making it even more difficult for hospitals to offset the cost of uncompensated care. Hospitals that regularly treat undocumented or uninsured patients may become even more likely to resort to repatriating patients that require long-term care.

It is therefore critical that we address the issue of medical repatriation now. We should call on hospitals and consulates to establish protocols to ensure that patients give informed consent before being discharged and that, in the event that a repatriation is made, they are sent to places where they can get the care they need. We should also urge the Department of Health and Human Services to issue regulations explicitly prohibiting involuntary repatriation of patients and imposing sanctions on hospitals that engage in this unlawful practice. It is high time we face head-on the deficiencies in the system that allow for these unlawful—and in many cases life-threatening—deportations to occur.

Still Broken Systems: Medical Deportation and the Shortcomings of Immigration and Health Reform

Check out the Race Talk blog post written by HJ team members Shena and Lindsey on medical deportation and health reform.

Ready to Leave with No Place to Go

by Shena Elrington, Staff Attorney

Undocumented immigrants lack access to viable long-term care options. This is hardly surprising, given the surge in anti-immigrant sentiment, the serious budget crises facing federal, state and local governments and the piecemeal way in which we approach health care delivery. Although not surprising, the lack of long-term care options has very real consequences for both the lives of these immigrants and the overall well-being of the healthcare system.

A flurry of recent newspaper articles has brought the plight facing undocumented immigrants in need of long-term care into sharp focus. In the typical scenario, an undocumented immigrant suffers a catastrophic injury or illness, such as stroke, and is rushed to the emergency room, where she receives care, as required by federal law. The initial injury or illness may have been so severe that the patient becomes incapacitated, unable to feed or care for herself. The hospital then looks for appropriate long-term care facilities, such as nursing homes, to care for the patient. Finding such a facility, however, is nearly impossible because the patient cannot pay out of pocket and is ineligible for Medicaid because of her immigration status. The hospital, unable to find an appropriate facility to discharge the patient, chooses whether to continue to treat the patient, at a cost of several thousand dollars per day, for an indefinite period of time.

Some undocumented immigrants who find themselves in this precarious situation fare better than others. They all, however, live in a constant state of uncertainty, unsure of when the hospital will stop caring for them. And when the hospital terminates treatment, as it inevitably will, undocumented immigrants are faced with a truly terrifying range of “choices”, leading them closer and closer to death.

In September, a hospital in Atlanta refused to provide dialysis to nearly two dozen undocumented immigrants who had been receiving treatment for years. As deadly toxins built up in their systems, some immigrants sought care at various emergency departments, but were refused treatment because their conditions had not deteriorated significantly enough to trigger the hospital’s duty to provide emergency care under federal law. These immigrants were forced to wait until they were literally at death’s door to receive treatment. After much wrangling and public outrage, the hospital agreed to continue to provide dialysis for three more years.

But, what happens when that three-year period comes to an end?

Some hospitals, acting outside the federal immigration process, actually contract with private transport agencies to have these patients, with or without their consent, flown back to their home countries, without ensuring that there are any healthcare facilities in those countries able to support their needs. In essence, these immigrants are sent home to die. Based on our work with community partners and advocates, we know these “medical deportations” are not isolated events.

The perils undocumented immigrants in need of long-term care face are the direct result of failures in our immigration and health policies. Our current system mandates that hospitals provide care to undocumented immigrants when they are so ill that they require emergency treatment, at the most expensive point of access in the health care system – the emergency room – yet provides no real avenue for them to receive cheaper preventative care or be moved from more expensive acute care facilities to more appropriate, and less expensive, long term care facilities like nursing homes when necessary.

While health reform expanded the number of Americans eligible for Medicaid, it fell short of including undocumented immigrants – prohibiting them from even purchasing insurance within the exchanges. While the majority of undocumented immigrants are young and healthy, it is inevitable that tragedy will strike at one point or another and some immigrants will need long-term care. Our current policies make no provisions for this eventuality. Worst yet, there is virtually no oversight over hospitals that repatriate patients to their home countries, discharging them to family members or facilities abroad that often lack the means to properly care for them. And, there is little to no discussion of the legal and ethical breaches healthcare providers and hospitals may be committing by failing to discharge undocumented immigrants to appropriate healthcare facilities.

We need to discuss these issues, even if talking about them is difficult in a political climate where anti-immigrant sentiment runs rampant and budget cuts seem to always land on the backs of the poor, because some of our most fundamental values are at stake. Just a few weeks ago, we glimpsed the erosion of these values during a Republican presidential nominee debate, when the audience proudly affirmed their willingness to let a hypothetical 30 year old man who needed intensive care die because he opted out of health insurance. There is little doubt that this crowd would feel the same way about an undocumented immigrant in need of care, who had no access to insurance to begin with. Is this really the kind of world we want to live in?

(Not) Born in the USA

This post is by Macharia Edmonds, a summer intern with the Health Justice Program and a law student at Northwestern University School of Law in Chicago, IL.

Too often in this country, the treatment of those not born in America differs from those born within our borders.  Some New York hospitals have done the unthinkable and are discharging some non-citizen patients to their death.  These hospitals are practicing what is called medical deportation.  This occurs when a hospital discharges a severely injured, sometimes disabled, non-citizen patient who is in need of long term care to a medical facility in their home country.  Unfortunately these facilities are usually not equipped to adequately treat the patient’s medical needs and the patient often suffers considerable pain and sometimes death from this lack of treatment.

Under New York state law, a patient is required to sign off on a discharge plan which details any health care arrangements needed after the discharge.  These patients are sometimes incapacitated or can have a limited English proficiency which makes understanding the choices they are dealt with difficult if not impossible.  In situations where the patient does not speak English the hospital can and should provide an interpreter.  In situations where the patient may be incapacitated, things become more complex.  If the patient is not able to consent to a discharge then the hospital should look to either an appointed surrogate or a family member.  If there is no one from these groups available to decide, there is often confusion as to who has the right to make this decision.

The New York State Legislature has attempted to address this issue by introducing S7429 and A8647C, a bill that creates a three person panel which would be in charge of making these decisions in the absence of other family or appointed representatives.  This panel would presumably be able to protect patients from being denied adequate medical treatment.  This bill is well intentioned but has a number of issues.  Some of these issues include who is allowed to serve on this panel, the lack of information given to the patient and family during the decision making process, and the lack of restrictions and regulations on discharges to foreign medical facilities.  NYLPI has offered and will continue to offer to the Senate and Assembly suggestions for this bill so that it ensures these patients who are incapacitated and not able to advocate for themselves receive the proper medical care.  No matter what country you are a citizen of, simply being a human being should require a certain level of care.

Holding the United States Accountable for Medical Repatriation

On April 19, NYLPI’s Health Justice program joined the Seton Hall University School of Law in submitting a report to the United Nations Human Rights Council on the subject of involuntary medical repatriations of undocumented immigrants from hospitals.   As we have written previously on this blog, NYLPI has be co-convening a statewide working group on the problem of hospitals in New York transferring undocumented immigrant patients who need long-term care to international health care facilities, where the quality of care provided may not be adequate.  The Seton Hall University School of Law has been similarly concerned about the practice of medical repatriation in New Jersey.

Together, NYLPI and Seton Hall have submitted this human rights report as part of the UN’s Universal Periodic Review of the United States, in the hope of bringing the global community’s attention to the problem of international patient dumping and, through this external scrutiny, to bring domestic decision-makers to the table to discuss concrete solutions.  We will keep you posted!

Balancing the Scales of Health Justice for Uninsured Immigrants

This post features Liane Aronchick, a volunteer attorney at New York Lawyers for the Public Interest.  She has coordinated the Working Group on Medical Repatriation at NYLPI since October 2009.

Less than a month after the devastating earthquake in Haiti, the U.S. military halted airlifts to treat seriously injured Haitians from Port-au-Prince to Florida hospitals.  The decision to halt came quickly after Florida Governor Charlie Christ requested that the U.S. Department of Health and Human Services reimburse the hospitals that were treating the injured Haitians, causing speculation that hospitals did not want to treat Haitian patients without some kind of compensation.

The hospitals vehemently denied refusing patients simply because they could not afford care, but the controversy nevertheless highlights the adversarial stance that hospitals take when required to provide health care to non-citizens. When a seriously injured and uninsured patient arrives for treatment at a hospital, the hospital’s priorities shift, placing financial compensation above treatment and care when that patient is a non-citizen. The hospital will stabilize the patient, but the caliber of long-term care and follow-up deteriorates based on the patient’s nationality.  Indeed, it has become a regular practice in hospitals to repatriate uninsured non-citizens in need of long-term and intensive care to hospitals in their home countries—where resources are often scarce and treatments are limited. This practice is known as “medical repatriation” or “medical deportation.” What’s more, transferring hospitals fail to sufficiently investigate whether the transferee hospitals are even capable of providing the care the patient needs. In effect, the American hospital dumps the patient on an ill-equipped and poorly stocked hospital, potentially condemning the patient to death, but somehow it is permissible because the patient is a non-citizen.

Advocates and service providers in New York are banding together to strike a balance to the inequitable treatment that uninsured immigrants receive in American hospitals. New York Lawyers for the Public Interest, the New York Immigration Coalition and the New York Academy of Medicine have collaborated to create a working group on medical repatriation.  The goals of the working group are to 1) determine to what extent medical repatriation is being practiced by hospitals in New York State, 2) research the causes of repatriation, and 3) to develop long and short-term strategies to counter the practice.

To determine the extent and scope of the medical repatriation in New York State, researchers conducted structured interviews with service providers, including social workers, attorneys, policy workers and advocates, who are on the front-lines of patient advocacy.  The research revealed that, on average, hospitals in the New York area face approximately four repatriation cases per year.  While the majority of hospitals maintain that they do not repatriate patients against their will, the voluntariness of the patient’s departure is often murky when she never intended to leave the country. The hospital does not want to continue to provide the patient with uncompensated treatment. The patient no longer needs hospitalization, but she has nowhere to go and no one to care for her in the United States due to her lack of insurance. Left with little alternatives, the patient “elects” to depart, but mostly because she has no other choice.

The decision to repatriate an immigrant patient stems from a variety of social and legal factors. From the legal end, hospitals are bound by both state and federal laws to treat patients arriving with emergency medical conditions, regardless of the patient’s ability to pay. Due to the patient’s lack of insurance, however, the hospital is often unable to discharge the patient once the need for hospital-level care has ended. Hospitals are then forced to make economic decisions that prioritize financial resources over patient care, causing the patient’s and the hospital’s interests to diverge.   When the relationship between a large private hospital and an undocumented and uninsured immigrant patient becomes adversarial, it is more often than not the patient who suffers.

Communication between the patient and the hospital is a key social factor contributing to the repatriation trend.  When patients are unable to communicate with and understand their health-care providers due to a language or other barrier, their decision to return to their home country is not fully informed.  They do not realize that their decision to return to their home country could impede legal re-entry into the United States in the future, or compromise the quality of health care that they receive after they have been transferred.  Even when the patients are aware of their rights, their inherently weakened position in relation to the hospital impedes communication further; they may fear contesting the decision to repatriate because, as an undocumented immigrant, they are already on unequal ground.

The working group on medical repatriation has emerged to level the playing field between hospitals and immigrant patients. To counter the social causes of repatriation, a team of pro-bono attorneys will mobilize and intervene when a patient is at risk of repatriation without her consent.  This “legal rapid response team” would screen the patient for public benefits eligibility, educate patients and their families, in their own language, on their rights to appropriate discharge and about the immigration implications of their decisions to repatriate, and would otherwise conduct the kind of bedside advocacy that hospitals do not do once the relationship has turned adversarial. The team could also engage with hospital administration to negotiate alternatives to the international discharge, or when all else fails, pursue litigation. To affect the legal causes of repatriation, the working group could advocate for policy changes that benefit both hospitals and patients, like increased state funding for charity care or stronger civil and criminal penalties for inadequate discharges.

Importantly, the goal is not to generate or perpetuate adversity between hospitals and patients, but rather, to “fill the gaps” in patient services that hospitals do not often have the resources or training to provide.  Undocumented, uninsured and severely injured immigrants are featherweights on the scales of health justice. We on the working group want to weigh in.

International Patient Dumping

A little before 1am on December 1, 1985, a pregnant woman who was about to give birth was taken by a friend to a hospital in San Pablo, California. Upon arrival, hospital staff refused to admit the woman because the hospital did not accept her insurance plan. The woman was told to go to another hospital in Oakland instead. Approximately three hours later, the woman arrived at the second hospital, where doctors detected an irregular heartbeat in the fetus. Nevertheless, the woman was once again denied service because hospital staff could not find any record of the woman being enrolled in an insurance plan. She was eventually taken to the local county hospital, which accepted patients regardless of their insurance status. By the time the woman arrived at the county hospital, however, the fetus had a barely detectable heartbeat. At 4:26am, the woman’s baby was pronounced dead. This outcome could have been avoided if the two hospitals she went to first did not refuse to treat her.

In 1986, in response to dramatic news accounts of cases such as the one described above, Congress passed the Emergency Medical Treatment and Active Labor Act (EMTALA). The purpose of EMTALA was to “send a clear signal to the hospital community, public and private alike, that all Americans, regardless of wealth or status, should know that a hospital will provide what services it can when they are truly in physical distress.” The purpose was, in other words, to prevent the practice of “patient dumping.”

These days, patient dumping continues, and it has gone international. In a process known as “medical deportation,” uninsured patients, generally undocumented immigrants, in need of tertiary or long-term care are transferred by private hospitals back to their home countries, where they are not guaranteed a sufficient level of health care to survive. It is tempting to think–and it is often suggested–that medical deportation is a new, thorny, perhaps intractable problem in health care policy arising out of the growth in the undocumented immigrant population in the United States. However, we see it as just another iteration of how health care services are often denied to low-income communities of color unless adequate protections are put in place. Earlier forms of patient dumping tended to disproportionately impact low-income, African-American patients living in major urban areas. Meanwhile, medical deportation disproportionately impacts low-income immigrant communities, including those living in major urban areas like New York City. Both offer rather breathtaking examples of how financial and bureaucratic imperatives cause health care providers to forget that they work in the service and support of human life.

This past week, we co-hosted, along with the New York Immigration Coalition and the New York Academy of Medicine, a meeting of health, immigrant, and disability rights advocates from across New York State to start strategizing about ways to address the problem of medical deportation in the short- and long-term. The meeting was very well attended–approximately 40 people participated–and it covered a lot of ground, but one message came through clearly: that there is an urgent need to, once again,” send a clear signal to the hospital community… that all Americans, regardless of wealth or [immigration] status, should know that a hospital will provide what services it can when they are truly in physical distress.”

We will keep you as the work of the medical deportation workgroup progresses.