Uncompensated care and undocumented immigrants.

Two developments in the past couple of weeks provide enduring lessons in the politics of health care for undocumented immigrants.

On July 22 the Texas Attorney General issued Opinion No. GA-0219 to answer the question whether section 285.201 of the Health and Safety Code requires a hospital district to provide nonemergency public health services to undocumented persons who are otherwise ineligible for those benefits under federal law.

Background: In 2001, the Texas Attorney General told the Harris County Hospital District that federal law prohibited the district from providing free or discounted nonemergency health care to undocumented persons. Tex. Att'y Gen. Op. No. JC-0394 (2001). The Attorney General relied on the Federal Personal Responsibility and Work Opportunity Reconciliation Act ("PRWORA"), 8 U.S.C. §§ 1601-41 (2002), which provided that "undocumented or illegal aliens are ineligible for state and local public assistance, subject to specific exceptions." The Attorney General further observed that federal statute "preempts contrary state laws and renders illegal the state and local programs that provide public benefits to aliens contrary to its terms." The opinion concluded that, under the present state of Texas law, the federal statute prohibited the Harris County Hospital District. The opinion also noted, however, that the PRWORA contains an exception authorizing states to provide additional public benefits to undocumented persons. 8 U.S.C. § 1621(d) (2002).

That is precisely what the 78th Legislature did in 2003 when it added Tex. Health & Safety Code Ann. § 285.201 (Vernon Supp. 2004):

As authorized by 8 U.S.C. Section 1621(d), this chapter affirmatively establishes eligibility for a person who would otherwise be ineligible under 8 U.S.C. Section 1621(a), provided that only local funds are utilized for the provision of nonemergency 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.

(emphasis added)

The question posed to the AG focused on the word "eligibility" and asked whether this provision requires a hospital district to furnish nonemergency public health benefits to undocumented persons, or, on the other hand, whether it merely permits a hospital district to do so.

Based upon the AG's reading of various dictionary definitions of "eligibility," as well as Texas caselaw, see Foreman v. Security Insurance Co. of Hartford, 15 S.W.3d 214 (Tex. App.-Texarkana 2000, no pet.) (requires WestLaw subscription), and legislative history, the AG concluded that "eligible," as used in this statute, means something less than "entitled," and therefore hospital districts are permitted but not required to provide nonemergency public health benefits to undocumented persons. This is bad news for undocumented immigrants, who can be turned away from hospitals with impunity unless they have an emergency condition, and it's bad news for the hospitals, which are faced with the Hobson's choice of admitting patients for treatment before their condition becomes life-threatening or waiting until the patients come to the hospitals' emergency departments hours, days, or weeks later with emergency medical conditions and the legal right to receive (more expensive) medical treatment. Of course, Texas (like most states) has never suggested how the care for these patients should be paid for.

Also on July 22, CMS announced a plan to implement a plan for hospitals and other providers to recoup $250 million a year for the next 4 years against the cost of providing unreimbursed health care services to undocument immigrants in emergency rooms. The plan can be read here. The plan would implement a provision in the Medicare reform act sets aside $1 billion over 4 years and requires CMS to have a plan in place by September 1. Comment: The amount that's been appropriated is a drop in the bucket, and it ignores the even more substantial costs of in-patient care for those emergency-department patients who have to be admitted in order to be stabilized as required by the Emergency Medical Treatment and Labor Act (EMTALA). But it's a start, and more of a start than we are seeing from the Lone Star State.