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.

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Filed under immigrant health, immigrant rights, insurance, language access, medical deportation

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