Return to sender: evaluating the medical repatriations of uninsured immigrants.

• Author: O'Connell, Caitlin O.

1. INTRODUCTION

   In 2000, Luis Alberto Jimenez, an undocumented and uninsured immigrant, sustained traumatic brain injuries in a car accident with an intoxicated Floridian driver. (1) After the accident, he was hospitalized at Martin Memorial Medical center, a private community hospital in Stuart, Florida. (2) Because Jimenez, who remained incapacitated, required ongoing care but lacked medical insurance, Martin Memorial was unable to find a rehabilitation facility willing to accept him. (3) Instead, Jimenez remained as a ward of the hospital for several years at a cost exceeding $1.5 million. (4) Of this $1.5 million, Martin Memorial collected only $80,000 from Medicaid for the emergency services rendered to Jimenez; the hospital absorbed the remaining costs associated with his care. (5) Faced with both Jimenez's continuing medical needs and the financial costs borne of this care, Martin Memorial secured a state court order to authorize the hospital to transport Jimenez to a medical facility in Guatemala, his country of origin. (6) Acting under this court order, which was later deemed invalid on appeal, (7) the hospital leased an air ambulance at its expense and forcibly transported Jimenez back to Guatemala. (8)

   Martin Memorial's actions in returning Jimenez to his country of origin do not represent an isolated incident. (9) Instead, through a practice known as medical repatriation, some hospitals return indigent immigrant patients who are ineligible for long-term Medicaid to their countries of origin to reduce the financial burdens associated with their uncompensated care. (10) Indeed, international medical repatriations have emerged as a creative response to the financial conundrum imposed upon hospitals (11) by virtue of immigration and health care policies. Collectively, these policies restrict immigrants' access to long-term Medicaid, (12) obligate certain hospitals to render emergency medical services without regard for the patient's ability to pay, (13) and require hospitals to secure appropriate follow-up care for patients in accordance with federal discharge regulations. (14) While hospitals may recoup some costs through Emergency Medicaid--which covers the treatment of emergency medical conditions without regard for immigration status (15)--the scope of Emergency Medicaid, as demonstrated in Jimenez's case, may not fully compensate hospitals for the treatment of uninsured, indigent patients. (16) Consequently, medical repatriations provide an alternative method of cost reduction. (17)

   Even if they provide a creative solution, medical repatriations--which have been criticized as international patient dumping and as de facto deportations (18)--implicate significant concerns for both hospitals and immigrants alike. Foremost, although Martin Memorial sought a court order before initiating Jimenez's removal to Guatemala, the majority of medical repatriations are undertaken without legislative authorization or judicial oversight. (19) In the medical context, the permissibility of international medical repatriations remains tenuous: in November 2009, the American Medical Association's (AMA) Council on Ethical and Judicial Affairs (CEJA) issued a report, advising against involuntary repatriations. (20) Thus, because the legality of forcibly transporting immigrant patients to medical facilities outside the United States remains uncertain, hospitals may incur liability through medical repatriations. (21)

   Because repatriations implicate potentially serious consequences for both immigrant patients and hospitals, this Note places medical repatriations under the microscope by examining the legal causes of action arising from forcible repatriations. Part II discusses the history of immigrant access to Medicaid and immigrant eligibility for emergency Medicaid. (22) In addition, this Part considers the circumstances in which hospitals must provide treatment to uninsured, indigent immigrants, and the financial burdens arising from this care. In view of this backdrop, Part III evaluates the scope and consequences arising from medical repatriations. With reference to the benchmark case of Montejo v. Martin Memorial Medical Center (23) Part IV considers the potential legal consequences of repatriation, including the violation of federal patient discharge requirements (24) and tort liability for false imprisonment. (25) Furthermore, because the federal government exercises plenary authority over immigration, (26) this Part evaluates whether immigrants may challenge repatriations by public or private hospitals under the Due Process Clause of the Fourteenth Amendment. While a comprehensive solution to the thorny issue of repatriation exceeds the scope of the Note, hospitals should, as a starting point, seek meaningful consent from patients or their guardians before repatriation. Doing so will shield the hospital from liability, while apprising immigrant patients of the collateral effects of repatriation.

2. HOSPITALS' OBLIGATIONS TO TREAT UNINSURED IMMIGRANTS

   Immigrants in the United States, for several reasons, often possess limited access to private or public health insurance. (27) Indeed, of the estimated 37.9 million noncitizen immigrants within the United States in 2006, over 12.8 million (33.8%) lacked any health insurance. (28) In the private insurance sector, many immigrants are employed in industries, such as agriculture and food services, that customarily do not provide employer-based health insurance to workers. (29) In the public sector, Congress--through the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) (30) --constrained immigrants' access to most forms of Medicaid, a program that is jointly funded by federal and state contributions and that provides health care to persons with insufficient resources to independently obtain insurance. (31) Beyond constraining health care options for immigrants, narrowed Medicaid access imposes burdens upon the hospitals charged with their care: where immigrants cannot independently pay for health services and do not qualify for nonemergency Medicaid, hospitals may shoulder the financial burden associated with their treatment. (32)

   1. Immigrants' Access to Medicaid Before PRWORA

      Before 1996, immigrants who were lawful permanent residents (LPR) and immigrants who were "otherwise permanently residing in the United States under color of law" (PRUCOL) were eligible for Medicaid on the same basis as U.S. citizens. (33) Although Congress did not initially define PRUCOL's boundaries, PRUCOL status often was construed broadly, thus affording immigrants with ambiguous immigration statuses an avenue to benefits eligibility. (34) In section 9406 of the Omnibus Budget Reconciliation Act of 1986, (35) Congress affirmed this expansive interpretation, stating that PRUCOL should encompass "all of the categories recognized by immigration law, policy, and practice." (36)

      Although undocumented immigrants with indisputably irregular legal statuses were ineligible for public benefits via PRUCOL, (37) in the years before PRWORA, "publicly-funded health care providers and practitioners customarily provided necessary health services regardless of immigration status." (38) Some legal scholars suggest that this extension of medical services to undocumented immigrants was partially influenced by the Supreme Court's holding in Plyler v. Doe. (39) In Plyler, the Court applied intermediate scrutiny to hold that a Texas state law, which barred the children of undocumented immigrants from freely enrolling in the state's public elementary and high schools, violated the Equal Protection Clause of the Fourteenth Amendment because the law advanced no substantial state interest. (40) While the majority emphasized the unfairness of penalizing the "innocent children" of undocumented immigrants, (41) "an important part of the Court's opinion turned on federalism concerns and limits on states' ability to regulate immigration matters, which is [sic] reserved for the federal government." (42) Thus, while finding "no national policy that supports the State in denying these children an elementary education," the Court noted that "[s]tates do have some authority to act with respect to illegal aliens, at least where such action mirrors federal objectives and furthers a legitimate state goal." (43)

   2. Immigrants' Limited Medicaid Eligibility After PRWORA

      In 1996, Congress articulated such a federal policy by enacting PRWORA, (44) which broadened state authority to condition access to state and local public benefits on immigration status and thereby authorized "the kind of state restriction on benefits that were previously vulnerable to constitutional attack." (45) Among its objectives, Congress sought to reduce the federal government's social service expenditures. (46) To help effectuate this purpose, PRWORA overhauled the method by which immigrant eligibility for public benefits was assessed and curtailed Medicaid for documented and undocumented immigrants. (47)

      Under PRWORA, public-benefits eligibility is limited to a narrowly defined subset of "qualified" immigrants. (48) All other immigrants--including undocumented immigrants and immigrants who were previously eligible through PRUCOL status--are deemed nonqualified, and thus ineligible for most forms of Medicaid. (49) A limited exception to PRWORA permits nonqualified immigrants to remain eligible for certain healthcare benefits, including the treatment of emergency medical conditions, (50) public health immunizations, (51) and the testing and treatment of symptoms of communicable diseases. (52) But, states may not use federal Medicaid funds for immunizations or for the testing and treatment of communicable diseases. (53)

      Moreover, even qualified immigrants confront diminished access to public benefits under PRWORA--which imposes additional eligibility requirements (54)--and under the Illegal Immigration Reform and Immigrant...