Check out the opinion piece written for the Brooklyn Daily Eagle by HJ team members Shena and Jenn about hopsital closures in low-income communities of color in Brooklyn and what they mean for access to care. You can read the piece here.
Medical repatriations of undocumented immigrants likely to rise as result of federal funding reductions to safety net hospitals under Affordable Care Act
New York, NY, and Newark, New Jersey, December 17, 2012 − Today, the Center for Social Justice (CSJ) at Seton Hall University School of Law and New York Lawyers for the Public Interest (NYLPI) released a report documenting an alarming number of cases in which U.S. hospitals have forcibly repatriated vulnerable undocumented patients, who are ineligible for public insurance as a result of their immigration status, in an effort to cut costs. This practice is inherently risky and often results in significant deterioration of a patient’s health, or even death. The report asserts that such actions are in violation of basic human rights, in particular the right to due process and the right to life.
According to the report, the U.S. is responsible for this situation by failing to appropriately reform immigration and health care laws and protect those within its borders from human rights abuses. The report argues that medical deportations will likely increase as safety net hospitals, which provide the majority of care to undocumented and un- or underinsured patients, encounter tremendous financial pressure resulting from dramatic funding cutbacks under the Affordable Care Act.
The report cites more than 800 cases of attempted or actual medical deportations across the country in recent 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; a car accident victim who died shortly after being left on the tarmac at an airport in Guatemala; and a young man with catastrophic brain injury who remains bed-ridden and suffering from constant seizures after being forcibly deported to his elderly mother’s hilltop home in Guatemala.
According to Lori A. Nessel, a Professor at Seton Hall University School of Law and Director of the School’s Center for Social Justice, “When immigrants are in need of ongoing medical care, they find themselves at the crossroads of two systems that are in dire need of reform—health care and immigration law. Aside from emergency care, hospitals are not reimbursed by the government for providing ongoing treatment for uninsured immigrant patients. Therefore, many hospitals are engaging in de facto deportations of immigrant patients without any governmental oversight or accountability. This type of situation is ripe for abuse.”
“Any efforts at comprehensive immigration reform must take into account the reality that there are millions of immigrants with long-standing ties to this country who are not eligible for health insurance. Because health reform has excluded these immigrants from its reach, they remain uninsured and at a heightened risk of medical deportation,” added Shena Elrington, Director of the Health Justice Program at NYLPI. “Absent legislative or regulatory change, the number of forced or coerced medical repatriations is likely to grow as hospitals face mounting financial pressures and reduced Charity Care and federal contributions.”
Rachel Lopez, an Assistant Clinical Professor with CSJ stated, “The U.S. is bound to protect immigrants’ rights to due process under both international law and the U.S. Constitution. Hospitals are becoming immigration agents and taking matters into their own hands. It is incumbent on the government to stop the disturbing practice of medical deportation and to ensure that all persons within the country are treated with basic dignity.”
More information about this issue can be found at medicalrepatriation.wordpress.com, a NYLPI- and CSJ-run website that monitors news and advocacy developments on the topic of medical deportation.
About New York Lawyers for the Public Interest
New York Lawyers for the Public Interest (NYLPI) advances equality and civil rights, with a focus on health justice, disability rights and environmental justice, through the power of community lawyering and partnerships with the private bar. Through community lawyering, NYLPI puts its legal, policy and community organizing expertise at the service of New York City communities and individuals.
About the Center for Social Justice at Seton Hall University School of Law
The Center for Social Justice (CSJ) is one of the nation’s strongest pro bono and clinical programs, empowering students to gain critical, hands-on experience by providing pro bono legal services for economically disadvantaged residents in the region. The cases on which students work span the range from the local to global. Providing educational equity for urban students, litigating on behalf of the victims of real estate fraud, protecting the human rights of immigrants, and obtaining asylum for those fleeing persecution are just some of the issues that CSJ faculty and students team up to address.
Lori A. Nessel, Professor of Law and Director, Center for Social Justice, Seton Hall University School of Law, Lori.Nessel@shu.edu, 973-642-8708
Stephanie Ramirez, New York Lawyers for the Public Interest, email@example.com, 212-784-5704
by Lindsey Hennawi, Program Assistant
It’s tough to be hard on President Obama just one month away from the presidential election.
After all, the Patient Protection and Affordable Care Act, an unprecedented piece of health care legislation, has been lauded by health justice advocates across the country for its promise to provide uninsured and underinsured Americans with options for health coverage which were previously unavailable to them. And the recently implemented federal policy known as Deferred Action for Childhood Arrivals (DACA) allows would-be DREAMers—undocumented youth who were brought to the US as children and who would be granted a path to citizenship under the as of yet un-passed Development, Relief, and Education for Alien Minors Act—to apply for work authorization and live without fear of being deported.
While these measures are historic, they also both fall short. The strength of the DACA program as a means to advance the rights and status of undocumented immigrants was undermined by a barely publicized announcement from the White House. According to the new rule, DACA individuals will be excluded from health coverage under the Affordable Care Act. In the past, people granted deferred action status were considered “lawfully present” undocumented immigrants and were thus eligible to participate in federal benefits programs. This new policy, however, explicitly exempts those who qualify for DACA relief from participating in these programs.
While some states have systems in place whereby lawfully present undocumented immigrants are still eligible for public health insurance from state pools of funding, this option is not universally available. Without the federal guarantee that lawfully present undocumented immigrants can benefit from the new Exchanges and Medicaid, these individuals will have to rely on whatever standards their state imposes, which can vary widely and may disproportionately impact certain immigrant communities. Some states have already started to deny benefits to DACA beneficiaries. Notorious anti-immigrant Arizona Governor Jan Brewer, for example, has illegally ordered state agencies to deny drivers’ licenses and other state benefits to DACA grantees. Apparently inspired, governors in Mississippi, Nebraska, and Texas have made similar declarations.
As a result of this federal exclusion, hundreds of thousands of undocumented youth who no longer have to worry about being deported still have to worry about how to access health care—an issue President Obama himself has described as central to the very success and character of our democracy.
There are a lot of good, practical reasons why DACA individuals should not be denied benefits under health care reform. The Affordable Care Act, with its pledge to insure the 30 million undocumented American citizens, completely excluded undocumented immigrants. The ACA will gradually reduce federal funding allocated to compensate hospitals for the care they provide to uninsured and underinsured patients, and the loss of this funding may threaten these hospitals’ ability to treat undocumented immigrants. The Exchanges, which will serve as a conduit through which people can purchase health insurance under the Affordable Care Act, could benefit from the addition of young, healthy people (such as many DACA individuals) paying into the pool in order to spread risk. And without regular access to affordable primary and preventive care, we will see an increase in negative health outcomes and costs that may ultimately burden the system.
Without inclusive, federal protections for health care access, undocumented immigrants will always be subject to denials of access to care, and the president’s landmark health care reform will fall short of achieving its lofty and sorely needed goal. If President Obama really wants to work toward improving immigrant rights and health—or even just to preserve the American democracy in which he believes—he needs to reconsider and reverse his latest decision. It’s just the right thing to do.
The federal Medicaid program has become something of a policy piñata in the national discourse. Over the course of the past year conservatives have been asking, “is Medicaid real health insurance?” The public insurance program for low-income individuals has been criticized for not providing sufficient access to physicians, long wait times to see a physician when one can be accessed, and poorer quality of care once patients get in the door – all of which conservatives argue are reasons to dismantle the program altogether. If being on Medicaid isn’t much better than being uninsured, why bother spending tax dollars on it?
Meanwhile, a recent editorial in the New York Times offered unequivocal praise for the Medicaid program, pointing to a study conducted in Oregon that allowed researchers to compare the experiences of people who received Medicaid coverage to those who did not. According to the study, Medicaid recipients reported better health than the uninsured recipients and were less likely to have medical bills sent to collection agencies or forgo other obligations in order to pay for their medical care. Supporters of the public health insurance plan were therefore able to hit back against conservative naysayers and argue that Medicaid truly is a program worth preserving and expanding.
While the national debate lurches back and forth, we find a more complicated reality on the ground, in the low-income communities of color where we work to eliminate race- and class-based biases in the health care system. The uncomfortable truth is that Medicaid beneficiaries do often receive poorer quality of health care, particularly when it comes to accessing specialists. But to see this you have to look at how Medicaid beneficiaries fare vis-à-vis privately insured individuals, not the uninsured, which has been the focus of current debates.
For example, in our work with Bronx Health REACH, a faith-based community coalition in the Bronx, we have seen how Medicaid patients seeking specialty services at major New York City hospitals are seen in separate—effectively segregated—facilities from their privately-insured peers, with longer wait times, less experienced doctors, and much less continuity and coordination of care. (You can read more about these problems in this monograph published by the Bronx Health REACH coalition and in this complaint we filed with the New York State Attorney General.)
Working with low-income parents, we have also seen how children with Medicaid have to wait for grotesquely long periods of time before they can get mental health treatment and special education evaluations, if they are able to access these services at all, and how elite institutions providing such services refuse to serve publicly insured populations despite the significant shortage of pediatric mental health providers in New York City.
Our experience thus seems to support conservative arguments to some extent: Medicaid beneficiaries do not have sufficient access to physicians, experience long wait times to see a physician when one can be accessed, and suffer from poor quality of care once they get in the doctor’s door, at least when compared with those patients who are privately insured.
Undoubtedly the current climate surrounding Medicaid makes it difficult for advocates to point out the lower quality of care Medicaid beneficiaries receive, for fear that any criticism of the program will serve as powerful ammunition for the other side to use. But acknowledging certain aspects of the conservative argument need not mean that advocates have to accept the entirety of their conclusions. Something else we’ve learned through our work is that Medicaid isn’t “bad” insurance per se. Rather, healthcare providers and institutions choose to treat Medicaid beneficiaries badly by discriminating against them with respect to the quality of care provided. Consider the Bronx example. Hospitals in New York City (and elsewhere) are not only reimbursed by Medicaid for providing patient care, they also receive over $1 billion through the Medicaid program for non-patient purposes such as resident doctor training – a funding stream so substantial that the New York hospital industry is fighting tooth and nail to keep it safe from federal budget cuts. Medicaid seems to pay hospitals very well, and yet these same hospitals choose to provide segregated and unequal care to Medicaid beneficiaries. Why?
As with many things, these bizarre dynamics cannot be understood without accounting for race, and for the fact that the vast majority of publicly insured individuals in New York City are black and brown. We have heard how top-flight specialists want to be able to choose the patients that they treat, which is invariably code for avoiding people of color who are perceived to be more “complicated” and “non-compliant.” Elite NYC hospitals eager to attract these specialists happily comply to doctors’ demands by giving them fancy facilities to see their preferred patients, while the Medicaid patients are separated out into “clinics”, where they are treated by a rotating band of doctors-in-training.
In addition to wanting to attract renowned specialists, the hospitals want to attract the “right” kind of patients – that is, wealthy, white, suburban patients. Behind closed doors administrators will openly argue that their “‘paying’ patients will not want to sit in the same waiting room as people on Medicaid,” so it is simply better for the hospital to segregate the two groups.
Worse still, these biases become a part of the culture of how medicine is taught, with students and residents working with Medicaid patients in the clinics learning very early on that some patients—the kinds of patients they get to practice on, the poor patients of color—are less worthy than others. Indeed, research has suggested that by the end of their medical education, student doctors actually become more biased than they were when they began medical school. These biases, whether conscious or not, permeate the medical system at both an individual and systemic level, affecting the quality of care that Medicaid beneficiaries receive.
From our perspective, the debate about Medicaid is less about left-and-right and more about black and white. The conservatives’ sleight of hand is to point to quality of care problems for Medicaid beneficiaries and to jump from there to the conclusion that the Medicaid program is to blame, which obscures the mediating role that institutional racism plays in ensuring poor outcomes for Medicaid patients. Meanwhile, supporters of Medicaid effectively erase race from the debate as well by closing their eyes to the many challenges Medicaid beneficiaries face in accessing high-quality health care, despite the fact that they are walking in the door with an insurance that research shows is pretty good. A more nuanced position would acknowledge differences in care without accepting defeat. It is not the Medicaid program that must be dismantled, but the biased attitudes and policies that lead Medicaid patients to get inferior quality of care.
This post is by Shena Elrington, Staff Attorney and Simpson Thacher & Bartlett Public Interest Fellow in the Health Justice Program at NYLPI.
On March 23, 2010, President Obama signed the Patient Protection and Affordable Care Act into law. The legislation represents the most sweeping reform of the American health care system since the New Deal. Although the legislation calls for nearly universal health coverage – reducing the number of the uninsured by 32 million by 2019, it fails to extend such coverage to undocumented immigrants, creating a large coverage gap that will inevitably strain the burgeoning health care system.
The new legislation prohibits undocumented immigrants from purchasing private health insurance in newly formed state exchanges at full costs and receiving premium tax credits or cost-sharing reductions to help purchase insurance. Notwithstanding the new legislation, undocumented immigrants may still receive emergency care under the Emergency Medical Treatment and Active Labor Act (EMTALA) and Emergency Medicaid. Neither EMTALA nor Emergency Medicaid, however, provides undocumented immigrants with adequate care. EMTALA, for instance, requires only that hospitals screen individuals for emergency medical conditions and stabilize (or appropriately transfer) individuals with such conditions. Beyond screening and stabilizing individuals, EMTALA imposes no additional obligations on hospitals to provide care. Emergency Medicaid is only available to individuals – regardless of immigration status – who are so acutely ill that the failure to receive medical attention would place their health in serious jeopardy. Health care providers are often unfamiliar with Emergency Medicaid’s eligibility requirements and deny coverage to undocumented immigrants based on their immigration status. Both EMTALA and Emergency Medicaid focus on providing care only when individuals are at their sickest and when the cost of treatment is at its highest. From both a health and financial standpoint, it makes little sense for undocumented immigrants to initially engage the health care system at this point.
There are some 7 million undocumented immigrants in the United States, with an estimated 700,000 living in New York State. Sooner or later these individuals will need health care and will likely receive this care at the emergency stage. The Affordable Care Act offers some hope for folding this population into the health care system in the form of $11 billion support for the creation of community health centers in underserved communities. Absent federal immigration reform – an issue as divisive as health reform itself, individual states will need to ensure that undocumented immigrants are not left entirely out of the fold. Failing to do so will only end up being more costly in the future.
By, Nisha Agarwal, Director of the NYLPI Health Justice Program.
Right now, five hundred thousand immigrants and their allies are rallying in Washington, DC, having traveled from across the country in caravans of buses to demand humane and just immigration reform. Also right now, the votes are being tallied and negotiated on the most comprehensive health reform package in two decades. For those of us who aren’t in DC ourselves, Twitter tracks the movement on the ground for the immigration march:
From @thenyic: ‘Senator Schumer on conference call with 220 buses (11000 people!) heading from NY to DC for the March for… http://fb.me/vlRfj4w5
Meanwhile, email lists and blogs are active, urging last minute phone calls and petition signatures to get Democrats to vote with their hearts on health care reform, and not from their fear.
Every day I work at this meeting point between immigrant rights and health equity, but it is not every day that I can see these issues reverberate on a national scale. Today, however, they echo and re-echo, and I listen in awe and gratitude to my fellow activists and allies. This is a progressive moment, and it is because we have made it one. In all the bickering about the details of the legislative packages and the concern about the eventual outcome of HCR and CIR—important arguments and worries to have—we shouldn’t forget what has already been accomplished: Both the push for health care reform, which is nearing its end, and the fight for immigration reform, which is just beginning, are strong, durable movements that progressives have built, with massive ground operations and multiple, coordinated perspectives tightly networked through cyber-space. We have shown that power can be built from the ground up, even in the wake of decades of reactionary national government and the collapse of the global economy, and in the face of a deep blue hate. I am optimistic that we will win health care and immigration reform, and I am proud of the structures we have created to do so. We here at NYLPI’s Health Justice Program are in full solidarity with all of our friends in DC right now. Si se puede. Hal soo it dah. Yes we can.
Immigrants, both those residing lawfully in the United States and those who are undocumented, will continue to face major barriers to health coverage even if federal health care reform is enacted, according to a new study released today by New Yorkers for Accessible Health Coverage (NYFAHC) and the New York Immigration Coalition (NYIC). Currently, noncitizens comprise 12 percent of New York State’s population but 29% of its uninsured population.
“Two million New Yorkers are noncitizens, and they lack health insurance to a much greater extent than citizens,” said Jenny Rejeske, study co-author. “The substantial majority of these noncitizens are here legally, and they pay the same taxes as citizens do. There is no justification for impeding their access to insurance and the care that they and their families need. It is time for policy makers to remove the barriers that prevent immigrants from getting the health care they need.”
The New York State Health Foundation-funded report, Health Insurance and Immigrants: Obstacles to Enrollment and Recommendations, documents numerous factors contributing to high uninsurance rates among noncitizens:
“The health reform bills currently being debated in Congress fail to address most of these barriers. Even more ominous, some proposals, such as one to exclude undocumented immigrants from using their own money to purchase full-price coverage in health insurance exchanges, would make it even harder for immigrants to enroll in coverage,” said study co-author Mark Scherzer.
“Immigrants make up a large proportion of the uninsured but are conspicuously absent from plans to expand coverage,” said David Sandman, Senior Vice President of the New York State Health Foundation. “If immigrants are left behind, we must ensure a strong safety net of health care services is in place to address their needs and fulfill the promise of opportunities to lead healthy and productive lives.”
The report’s key recommendations include:
Health Insurance and Immigrants: Obstacles to Enrollment and Recommendations is the third in a series of reports that analyze how health coverage among immigrants can be increased. The complete report is available upon request or at www.NYShealth.org; www.thenyic.org or www.cidny.org.