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Access to health care and the undocumented alien Sana Loue J.D., M.P.H.



Senior Attorney at the Legal Aid Society , San Diego, Inc. , Office of the Public Attorney, 110 South Euclid Avenue, San Diego, CA, 92114 Published online: 23 Jul 2009.

To cite this article: Sana Loue J.D., M.P.H. (1992) Access to health care and the undocumented alien, Journal of Legal Medicine, 13:3, 271-332, DOI: 10.1080/01947649209510886 To link to this article:

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ACCESS TO HEALTH CARE AND THE UNDOCUMENTED ALIEN Downloaded by [McGill University Library] at 08:33 18 November 2014

Sana Loue, J.D., M.P.H.*

INTRODUCTION The issue of undocumented aliens' access1 to health care services is an area of growing concern to public health professionals, social service agencies, and governmental agencies.2 Recent media reports have focused on the high cost of medical care and the presumed burden on the United States health care system created by these individuals.3 Despite the high public visibility of this issue, little effort has been made to systematically examine the scope of the presumed problem and to identify either new or existing solutions to the question of access to care. This article presents a portrait of the undocumented population of the United States, to the extent that it can be accurately portrayed from outside of that community. It examines the availability of medical care to that population, as well as the need for such care. Existing mechanisms for obtaining care are reviewed, as are barriers to the receipt of medical atten-

* Senior Attorney at the Legal Aid Society of San Diego, Inc. Ms. Loue is currently a doctoral candidate in the Department of Epidemiology at UCLA, with a minor in health law. She is a past chair of the San Diego Chapter of the American Immigration Lawyers Association. Address correspondence to Ms. Loue at Legal Aid Society of San Diego, Inc., Office of the Public Attorney, 110 South Euclid Avenue, San Diego, CA 92114. The author gratefully thanks Jackie Love for her research assistance, Jonathon Foerstel for his review and critique of the manuscript, and Jo Ann Hood, Mary Walsh, and Rossayn Tresser for their preparation of the manuscript. 1 Access is used in this article to refer to factors that influence the ability to obtain medical care, including the availability of health insurance, having a routine place of care and a regular provider, the type of health care facility used, and the proximity of that facility to the individual's residence. Solis, Marks, Garcia, & Shelton, Acculturation, Access to Care, and Use of Preventive Services by Hispanics: Findings from HHANES 1982-84, 80 AM. J. PUB. HEALTH 11 (1990); Andersen, Lewis, Giachello, Delay, & Chiu, Access to Medical Care Among the Hispanic Population of the Southwestern United States, 22 J. HEALTH SOC. BEHAV. 78 (1981). 2 See, e.g., Nickel, Should Undocumented Aliens Be Entitled to Health Care?, 16 HASTINGS CENTER REP. 19 (Dec. 1986). 3 Border Is Called "Out of Control," San Diego Union, May 18, 1991, at B1, col. 6.




tion. HIV infection among undocumented individuals in one border city4 is used as a case study, to more accurately assess undocumented individuals' need for and ability to access health care, and the cost of that access. Finally, the article explores remedies to the frequent denial of care and suggests alternatives to our current system of providing care to undocumented individuals.

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I. PORTRAIT OF A COMMUNITY: THE UNDOCUMENTED ALIEN An individual may accurately be termed "undocumented" in either of two situations: when the individual enters the United States illegally,5 or when the individual enters into this country legally,5 but subsequently violates the terms of his or her immigration status.7 Illegal entry itself encompasses a variety of scenarios, including entry without inspection,8 or entry based on fraud or misrepresentation.9 Violation of legal status includes any number of offenses, ranging from remaining beyond the date allowed by 4




8 9

One writer has argued that the border is actually a number of "transborder metropolitan areas." Warner, Health Issues at the U.S.-Mexican Border, 265 J.A.M.A. 242, 242 (1991). Warner distinguishes between those border areas that have a larger population on the United States side, which includes substantial numbers of Hispanics, and those areas that have the larger portion of their population in Mexico. He places the Tucson, Arizona-Nogales, Mexico and San Diego, CaliforniaTijuana, Mexico regions in the first category, and the following areas into the second: El Paso, Texas-Juarez, Mexico; Laredo, Texas-Nuevo Laredo, Mexico; and, Imperial County, CaliforniaMexicali, Mexico. Id. The term "entry" has a specific meaning within the context of immigration law: "any coming of an alien into the United States, from a foreign port or place or from an outlying possession, whether voluntary or otherwise." Permanent residents returning to the United States will not be considered to have effected an entry if "the alien proves to the satisfaction of the Attorney General that his departure to a foreign port or place or to an outlying possession was not voluntary . . . ." Immigration and Nationality Act, 8 U.S.C. § 1101(a)(13) (1988). Case law construing this provision has been extensive. For a summary, see 1 IMMIGRATION LAW SERV. §§ 9.1-9.15 (Lawyers Coop. Publishing 1985 & Supp. 1992). Most aliens not in the United States who wish to enter must apply for a visa at a consulate outside of the United States. Immigration and Nationality Act, 8 U.S.C. § 1202 (1988). Nonimmigrant visas are available to individuals seeking to enter the United States temporarily and for a specific purpose. Id. § 1101(a)(15)(1988 & Supp. I 1990), as amended by the Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978 (Nov. 29, 1990) [IMMACT90]. Individuals wishing to remain in the United States permanently may be able to qualify for an immigrant visa based on the existence of a qualifying family or employment relationship, subject to certain numerical restrictions. Immigration and Nationality Act, 8 U.S.C. §§ 1151-1153 (1988 & Supp. II 1990). A successful visa application requires documentation of the claimed purpose and/or relationship. See, e.g., id. § 1154 (1988 & Supp. I 1990). For exceptions to the prerequisite of a visa for a legal entry, see 8 C.F.R. §§ 211.l(b), 212.1(a) (1991). Immigration and Nationality Act, 8 U.S.C. § 1251(a)(l)(C) (1988), as amended by IMMACT90, supra note 6. Id. § 1251(a)(1)(B)(1988 & Supp. I 1990). See, e.g., id. § 1251(a)(1)(G). For examples of how fraud can be perpetrated to gain admission, see Farber, Million Illegal Aliens in Metropolitan Area, N.Y. Times, Dec. 29, 1974, at 1, col. 6.

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the Immigration and Naturalization Service (INS)10 to working without authorization." Some may enter and remain in the United States for relatively brief periods of time, while others may remain indefinitely.12 The decision to migrate may have resulted from a personal, internal weighing of the negative factors of the home environment and the positive attractions of the destination. Externally imposed events also may have provided the impetus for an individual's migration to the United States.13 Estimates of the number of undocumented individuals in the United States vary widely. One research study that utilized both INS records and 1980 census data concluded that the 1980 census count included approximately 2.06 million undocumented aliens. Of these, 1.02 million, or 49.8% of the total, were estimated to be in California. New York, Texas, 10

Immigration and Nationality Act, 8 U.S.C. § 1251(a)(1)(C) (1988 & Supp. II 1990). See also id. § 1184(a). For examples of this type of violation, see Farber, Battle Expected on Tighter Laws to Curb Illegal Aliens, N.Y. Times, Dec. 31, 1974, at 26, col. 1. 11 See 8 U.S.C. § 1251(a)(1)(C) (1988 & Supp. II 1990). Another writer has defined "undocumented alien" more broadly to include all aliens who cannot prove that they are legally in the United States, although not under an order of deportation. This definition includes "aliens who do not have actual possession of proper entry papers due to loss or theft of their entry visa as well as aliens who are eligible for permanent resident status but have not applied for this status." McGinnis, Undocumented Aliens' Right to Medicaid After Plyler v. Doe, 7 FORDHAM INT'L L.J. 83, 83 n.3 (1984). See also Note, Equal Protection for Undocumented Aliens, 5 CHICANO L. REV. 29, 29 n.1 (1982) (quoting letter from Mexican American Legal Defense Fund and Education Fund to Hon. Evelle J. Younger (Sept. 5, 1978)). It is argued that the term "illegal alien" as used by the Census Bureau is actually broader because it encompasses those who entered without inspection, those who violated the terms of their status, and those who remained beyond the date permitted by the terms of their visa. McGinnis, supra, at 83 n.3. See also Siegal, Passel, & Robinson, U.S. Bureau of the Census, Preliminary Review of Existing Studies of the Number of Illegal Residents in the United States, reprinted in SELECTED READINGS ON U.S. IMMIGRATION POLICY AND LAW 5, n.1 (1980). In fact, such "illegal

aliens" are considered to be undocumented by both the Immigration and Naturalization Service (INS) and most immigration advocates because they lack documentation of a legal presence, whether or not they are ultimately found deportable, in other words, "illegal," by an immigration or other federal court. For a discussion of the formal proceedings prerequisite to a determination of deportability, and a discussion of possible defenses within the context of such proceedings, see IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD, IMMIGRATION LAW AND DEFENSE (3d ed.



1991). Because the term "illegal" implies that a finding of deportability has been made pursuant to such proceedings, this article has replaced references to "illegal aliens" with the term "undocumented aliens" in all cases except those where the referenced source indicates a prior determination of deportability by an immigration judge or other federal court. See Chavez, Cornelius, & Jones, Mexican Immigrants and the Utilization of U.S. Health Services: The Case of San Diego, 21 Soc. Sci. MED. 93, 95 (1985). Hull, Migration, Adaptation and Illness: A Review, 13A Soc. Sci. MED. 25, 26 (1979). Externally imposed conditions may result in involuntary migration. See McKinlay, Some Issues Associated with Migration, Health Status and the Use of Health Service, 28 J. CHRONIC DISEASE 579 (1975). For an examination of political and economic factors that have influenced illegal immigration to the U.S., see P. EHRLICH, L. BILDERBACK, & A. EHRLICH, THE GOLDEN DOOR: INTERNATIONAL MIGRATION, MEXICO AND THE UNITED STATES (1979); K. JOHNSON & M. WILLIAMS, ILLEGAL ALIENS IN THE WESTERN HEMISPHERE: POLITICAL AND ECONOMIC FACTORS (1981).

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Illinois, and Florida were also estimated to have a large number of undocumented alien residents. Approximately 55% of the total number of undocumented persons were found to have come from Mexico.14 The Immigration and Naturalization Service (INS) predicted in 1989 that the illegal alien population would number between 1.8 and 3.1 million by 1990.15 Media reports have estimated that 3 to 8 million undocumented aliens currently reside in the United States, with almost 50% of the total living in California.16 Huge costs have been attributed to this population's reliance on health care services in the United States.17 The City of El Paso in 1986 billed the federal government $10 million for medical care provided to illegal aliens by its county hospital. Los Angeles placed its 1986 cost of caring for indigent undocumented aliens in county hospitals at $123.7 million.18 The County of San Diego sued the INS in 1980, in an attempt to recover the cost of care provided to aliens during the previous three and one-half years.19 The California Hospital Association has attributed the "uncompensated care crisis" in part to the effects of the undocumented aliens.20 Despite the presumed presence of a large number of undocumented aliens in the United States and the costs attributed to their utilization of health care services, little is actually known about their need for health care 14

Passel & Woodrow, Geographic Distribution of Undocumented Immigrants: Estimates of Undocumented Aliens Counted in the 1980 Census by State, 18 INT-L MIGRATION REV. 642, 651 (1984). It is unclear to what extent these statistics may be distorted by the ability of white European individuals to avoid detection and integrate more easily into the community. 15



18 19 20


the Superintendent of Documents, U.S. Government Printing Office, Washington, D.C.). These projections were made following the implementation of the Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, 100 Stat. 3417 [IRCA]. This legislation permitted the legalization of various groups of undocumented aliens. Prior to IRCA, the INS had estimated that 1.5 to 2 million undocumented aliens were present in the state of California alone. Undocumented Persons: Their Impact on Public Assistance Programs: Hearing Before the Assembly Comm. on Human Resources, California 107 (1977) (statement of Joseph Sureck, District Director of INS, Los Angeles, California). Pre-IRCA estimates reported by the media ranged from two to more than 20 million undocumented aliens nationwide. Aliens' Law to Change Nation, Experts Say, Wash. Post, Nov. 26, 1986, at A16. Bid to Exclude Illegals from Census Hit; Officials Say Move Would Hurt State in Congress, Cut Federal Aid, L.A. Times, July 15, 1989, at 26, col. 1. For an extensive summary of such charges through 1976, see M. Villalpando, The Socioeconomic Impact of Illegal Aliens on the County of San Diego (1976) (dissertation, available at United States International University, San Diego, California). See generally Medical Treatment of Illegal Aliens: Hearing Before the Subcomm. on Health and the Environment of the House Comm. on Interstate and Foreign Commerce, 95th Cong., 1st Sess. (1977) [Hearing on Medical Treatment]; Farber, Unlawful Aliens Use Costly City Services, N.Y. Times, Dec. 30, 1974, at 1, col. 5. Woven in Illegally, They're Part of America's Fabric, N.Y. Times, Oct. 12, 1986, § 4 , at 5, col. 1. County of San Diego v. Castillo, Civ. No. 79-0827-GT, slip op. (S.D. Cal. Feb. 5, 1980). Senate Symposium on Uncompensated Health Care and Access for the Unsponsored and Indigent Patient, Sponsored by the California Sen. Rules Comm. 2 (1986) (Statement of C. Duane Dauner, President, California Hospital Association).

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and their utilization of health care services. Much of what we believe we know is unfortunately based on observation and inference, rather than systematic research.21 Large numbers of undocumented workers are migrant farmworkers. It has been assumed that like other migrant workers, these undocumented workers suffer higher rates of respiratory, infectious, and digestive diseases than does the general population.22 The Food and Drug Administration has estimated that 90,000 farmworkers may suffer injuries due to pesticide poisoning.23 Other professionals have observed a need for treatment of communicable diseases within the undocumented population. The Department of Health Services of the County of Los Angeles noted that, unlike legal immigrants who are provided access to health care, illegal immigrants may delay diagnosis and treatment of communicable diseases, due to a fear of detection.24 As an example, undocumented aliens have been held 21

Dallek, Health Care for Undocumented Immigrants: A Story of Neglect, 14 CLEARINGHOUSE REV. 407 (1980). 22 See Watkins, Larson, Harlan, & Young, A Model Program for Providing Health Services for Migrant Farmworker Mothers and Children, 105 P U B . HEALTH REPS. 5 6 7 , 568 (1990). For a review of migrant health status generally, see Rust, Health Status of Migrant Farmworkers: A Literature Review and Commentary, 80 A M . i. P U B . HEALTH 1213 (1990). See also Schneider, Providing for the Health Needs of Migrant Children, 11 NURSE PRAC. 5 4 , 6 0 (Feb. 1986). It is possible that some undocumented individuals are not merely migrant, but truly homeless, in that they have no stable residence where they can both sleep and receive mail. This is not unlikely in view of the lack of housing available to legally immigrated migrant workers. See REGIONAL TASK F O R C E ON THE HOMELESS, HOMELESS FARMWORKERS AND DAY LABORERS 14 (1991). If this is t r u e ,

their health status may be similar to that of the general homeless population. For a discussion of the health status of the homeless, see Robertson & Cousineau, Health Status and Access to Health Services Among the Urban Homeless, 7 6 A M . J. P U B . HEALTH 561 (1986); Winkleby, Comparison of Risk Factors for Ill Health in a Sample of Homeless and Nonhomeless Poor, 105 P U B . HEALTH R E P S . 404 (1990). For a discussion of the health status of legally immigrated migrant workers, see REGIONAL TASK F O R C E ON THE H O M E L E S S , 23




National Sharecroppers Fund 1975), cited in Dallek, supra note 2 1 , at 408. One health care provider has remarked: The illegal immigrant most often is fearful of coming to public notice, lives in poverty and substandard, overcrowded and unhygienic living conditions and often, if not always, is economically depressed. All these factors predict not only high disease levels, but also delayed diagnosis and treatment of those diseases, and when they are communicable, spread to other persons. Availability of Health Care Services to Undocumented Persons: Hearing Before the House Subcomm. on Health and the Environment of the Comm. on Energy and Commerce 225 (1981) (statement of Shirley L . Fannin, M . D . , Chief, Acute Communicable Disease Control Preventive/Public Health, Department of Health Services, County of Los Angeles, California) [Health Care Services to Undocumented Persons]. See generally Guttmacher, Immigrant Workers: Health, Law and Public Policy, 9 J. HEALTH, P O L . , POL'Y & L . 5 0 3 , 506-08 (1984). F o r an example of the communicable diseases in the documented population that require medical attention, see Parenti, Lucas, Lee, & Hollenkamp, Health Status of Ethiopian Refugees in the United States, 77 A M . J. P U B . HEALTH 1542 (1987).

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responsible for the increase in leprosy in Los Angeles.25 The need for treatment of chronic disorders such as diabetes26 and depression27 also has been noted.28 Even basic preventive care may be found lacking. One study of 253 undocumented aliens living in Texas found that of the 214 nondetained aliens,29 approximately one-fourth used public health services, including immunizations for their children. Although it is unclear what proportion of the study participants' children required and/or received immunizations, it was noted that "[t]he failure to inoculate even one undocumented child can lead to a costly epidemic."30 Fewer than five percent of the nondetained adults were found to use public dental services.31 A study of Mexican women in San Diego found that undocumented Mexican women suffered from delayed prenatal care or no prenatal care at almost three times the rate of other women.32 The undocumented community is, unfortunately, characterized by a lack of financial resources to pay for much of the needed care. Some undocumented individuals may be able to afford private health insurance, and some may have employer-sponsored health insurance. However, the majority most likely have no insurance coverage at all.33 This should not be


Health Care Services to Undocumented Persons, supra note 24, at 224. A number of other infectious diseases have been problematic in border areas, including tuberculosis, rabies, dengue fever, and sexually transmitted diseases, including human immunodeficiency virus (HIV). Some of the cases reported were indigenous to the United States, and others were imported. Warner, supra note 4, at 243-44. The immigration status of individuals entering the U . S . with these diseases is unknown.


Examining the Health Status of Hispanics: Nation's Fastest Growing Minority Lacks Access to Medical Care Study Shows, Wash. Post, Jan. 15, 1991, § 2, at 27. For case examples, see Nickel, supra note 2, at 20. See Vega, Kolody, Valle, & Hough, Depressive Symptoms and Their Correlates Among Immigrant Mexican Women in the United States, 22 S o c . Sci. M E D . 645 (1986). A study of elderly immigrants in Great Britain found a higher chronic disease risk for elderly immigrants compared with the native-born population, and a corresponding increase in hospital use for diagnostic services. Ebrahim, Smith, & Griggs, Elderly Immigrants—A Disadvantaged Group? 16 A G E & AGEING 249 (1987). For a review of the literature on chronic disease and migration, and the health effects of migration itself, see Hull, supra note 13.




The INS is authorized to arrest and take into custody an alien pending a determination of deportability. Immigration and Nationality Act, 8 U . S . C . § 1252(a) (1988 & Supp. II 1990). Aliens also may be detained upon arrival at United States ports of entry for observation and examination for mental or physical defects or disabilities. Id. See generally Schmidt, Detection of Aliens, 24 SAN DIEGO L. REV. 305 (1987).


Taxes Aliens Pay to Texas Found to Top Benefits, N.Y. Times, Nov. 15, 1983, at A17, col. 1. Id. See Pollick, Rice, & Echenberg, Dental Health of Recent Immigrant Children in the Newcomer Schools, San Francisco, 77 A M . J. P U B . HEALTH 731 (1987). See Chavez, Cornelius, & Jones, supra note 12, at 99-100. It is unclear to what extent these figures are reflected in United States infant mortality statistics. See Hubbell, Waitzkin, Mishra, & Dombrink, Evaluating Health Care Needs of the Poor: A Community-Oriented Approach, 87 AM. J. M E D . 127, 129-30 (1989).




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surprising. Estimates are that approximately 50% of the undocumented population is from Mexico.34 Uninsured adults in the United States are most likely to be poor or near-poor, Hispanic, young, and unmarried.35 Consequently, it has been hypothesized that many in this group are undocumented workers, who do not qualify for public benefits, or employees in service occupations or on farms who do not receive health insurance as a fringe benefit.36 Recent studies that have been conducted regarding health care utilization by Mexican residents have found that those who were undocumented in the United States were most likely to be of low socioeconomic status and uninsured.37 The uninsured have been found less likely than the insured to obtain medical care,38 use preventive services,39 or receive adequate prenatal care.40

34 35

Passel & Woodrow, supra note 14. Freeman, Aiken, Blendon, & Corey, Uninsured Working-Age Adults: Characteristics and Consequences, 24 HEALTH SERV. RES. 811, 815 (1990).



& IMPERIAL COUNTIES 4 (1980). The plight of uninsured undocumented Hispanics may be similar to Hispanics in the United States generally, who lack any insurance. For a discussion of health insurance coverage and the Hispanic population in the United States, see Trevino & Moss, Health Insurance Coverage and Physician Visits among Hispanic and Non-Hispanic People, in DEPARTMENT OF HEALTH & HUMAN SERVICES, HEALTH, U.S., 1983, at 89 (1983). Private health insurance

obtained through employment is the most common source of health insurance. Oberg, Medically Uninsured Children in the United States: A Challenge to Public Policy, 85 PEDIATRICS 824, 825 (1990). or a discussion of the employed uninsured generally, see Monheit, Hagan, Berk, & Farley, The Employed Uninsured and the Role of Public Policy, 22 INQUIRY 348 (1985). A recent study of Orange County, California found that approximately 16% of the County's more than two million residents are Hispanic. ORANGE COUNTY ADMINISTRATIVE OFFICE, ORANGE COUNTY MID-DECADE DEMOGRAPHIC SURVEY (1986). Approximately 150,000 of the residents are undocumented. HISPANIC DEVELOPMENT COUNCIL OF UNITED WAY OF ORANGE COUNTY & ORANGE COUNTY HUMAN RELATIONS COMMISSION REPORT (1989).




Undocumented persons have been estimated to constitute approximately 17% of the local uninsured population, which numbers between 150,000 and 250,000. Mayster, Waitzkin, Hubbell, & Rucker, Local Advocacy for the Medically Indigent: Strategies and Accomplishments in One County, 263 J.A.M.A. 262, 263 (1990). Guendelman, Health Care Users Residing on the Mexican Border: What Factors Determine Choice of the U.S. or Mexican Health System, 29 M E D . CARE 419 (1991); Guendelman & Jasis, Measuring Tijuana Residents' Choice of Mexican or U.S. Health Care Services, 105 PUB. HEALTH REPS. 575 (1990). Davis, Gold, & Makuc, Access to Health Care for the Poor: Does the Gap Remain?, 2 A N N . REV. PUB. HEALTH 159 (1981); Davis & Rowland, Uninsured and Underserved: Inequities in Health Care in the United States, 61 MILBANK Q. 149 (1983); Skinner, Gorman, Shapiro, Chase, & Zauber, Use of Ambulatory Health Services by the Near Poor, 68 A M . J. PUB. HEALTH 1195 (1978). See Aday & Anderson, The National Profile of Access to Medical Care: Where Do We Stand?, 74 A M . J. PUB. HEALTH 1331 (1984); Blumenthal & Rizzo, Who Cares for Uninsured Persons?: A Study of Physicians and Their Patients Who Lack Health Insurance, 29 M E D . CARE 502 (1991). Aday & Anderson, Insurance Coverage and Access: Implications for Health Policy, 13 HEALTH SERV. R E S . 369 (1978).


Fingerhut, Makuc, & Kleinman, Delayed Prenatal Care and Place of First Visit: Differences by Health Insurance and Education, 19 FAM. PLAN. PERSP. 212 (1987).



Additionally, lack of health insurance has been found to be associated with an elevated and increasing risk of adverse outcomes in newborns.41 II. CURRENT MECHANISMS FOR ACCESS TO HEALTH CARE

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A. Hospitals Access to health care for undocumented aliens can only be discussed in conjunction with their characteristics as a population. Many may accurately be termed medically indigent, a population defined by its lack of public or private health insurance.42 As previously indicated, undocumented individuals are often barred from receipt of public insurance, and powerless to obtain private insurance through employment.43 A number of population groups have been found to be overrepresented among the potentially medically indigent: (1) the poor and those with a family income slightly above the poverty guideline; (2) families whose primary wage earner is sporadically employed or is unemployed for a prolonged period of time; and, (3) individuals from racial or ethnic minority groups.44 The undocumented individuals may well fall into one or more of these three groups. In determining such individuals' right to health care, the law has distinguished between medical emergency patients and others. The right to be treated may depend on whether an individual's medical condition constitutes an emergency, whether the hospital has the facilities and staff to provide emergency care, whether the hospital is a public or private institution, whether the hospital receives public funding, and what type of statutes may be applicable. 1. Common Law Common law holds that a nonemergency patient has no legal right to be admitted to a voluntary45 or proprietary hospital,46 or to most govern41


43 44 45


Braveman, Oliva, Miller, Reiter, & Egerter, Adverse Outcomes and Lack of Health Insurance Among Newborns in an Eight-County Area of California, 1982 to 1986, 321 N E W E N G . J. M E D . 508 (1989). Bazzoli, Health Care for the Indigent: Overview of Critical Issues, 21 HEALTH SERV. R E S . 3 5 3 , 356 (1986). Freeman, et al., supra note 3 5 , at 817. Bazzoli, supra note 4 2 , at 362. Voluntary hospitals were first established in the United States in the late 18th century, and were often supported by both local government and private contributions. These hospitals admitted both indigent and paying patients. INTRODUCTION TO HEALTH SERVICES 162 (S. Williams & P. Torrens eds. 3d ed. 1988). A proprietary hospital is operated for the benefit of the owner(s) of the institution. Proprietary hospitals comprised 14% of the United States' short term hospitals as of 1985. Id. at 171.

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mental hospitals.47 Therefore, hospitals generally may deny admission to a nonemergency patient unless the denial of the treatment or admission is racially discriminatory.48 Too, general hospitals and government hospitals functioning as general hospitals may exclude individuals with illnesses that they are not equipped to treat adequately.49 A hospital's duty to treat may, however, arise when the hospital acts to treat an individual. Once the hospital has undertaken such treatment, it is obligated to continue to provide care.50 A variety of activities may constitute the undertaking of treatment, including the patient's prolonged wait in the emergency department51 or an emergency call to a hospital physician.52 A hospital also may be obligated under common law to provide emergency care when: (1) an "unmistakable emergency" exists;53 (2) the hospital has a "well-established" custom of providing emergency care;54 and, (3) the patient relies on the hospital's usual practice of providing emergency care.55 Notwithstanding the establishment of this standard, there remains no judicially developed definition of "unmistakable emergency." This lack of clarity has permitted hospitals in a number of seemingly emergent situations to avoid liability for denial of care.56 However, a number of professional organizations have developed def-



Birmingham Baptist Hosp. v . Crews, 229 Ala. 3 9 8 , 157 So. 224 (1934). See also Hill v. Ohio County, 468 S.W.2d 306 (Ky. 1971), cert, denied, 4 0 4 U . S . 1041 (1972); Fabian v . Matzko, 236 Pa. Super. 267, 344 A.2d 569 (1975). Racial discrimination by any hospital receiving funds under any program of support by the Department of Health and Human Services is prohibited. DEPARTMENT OF HEALTH AND HUMAN SERVICES, GUIDELINES TO T I T L E V I O F THE CIVIL RIGHTS A C T O F 1964. See Title VI of the Civil Rights Act of

1964, 4 2 U . S . C . § 2000d (1988). Additionally, Title II of the Civil Rights Act of 1964 prohibits discrimination in places of public accommodation. Id. §§ 2000a-2000a-1. 49


See generally


294 (2d ed. 1988). One w h o undertakes gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other's person o r things, is subject t o liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking if "(a) his failure to exercise such care increases the risk of such harm, or (b) the harm is suffered because of the other's reliance upon the undertaking." RESTATEMENT ( S E C O N D ) OF TORTS § 323 (1965).


52 53

54 55 56

Methodist Hosp. v . Ball, 5 0 Tenn. App. 4 6 0 , 362 S.W.2d 475 (1961) (patient waited in emergency room 4 5 minutes after being brought in on stretcher); New Biloxi Hosp. v. Frazier, 245 Miss. 185, 146 So. 2d 882 (1962) (patient waited at least two hours in emergency room). O'Neill v . Montefiore H o s p . , 11 A . D . 2 d 132, 202 N.Y.S.2d 436 (1960). Wilmington Gen. Hosp. v. Manlove, 5 4 D e l . 15, 2 5 , 174 A.2d 135, 140 (1961). F o r a more detailed analysis of the significance of Manlove, see Fine, Opening the Closed Doors: The Duty of Hospitals to Treat Emergency Patients, 2 4 J. U R B . & CONTEMP. L . 123 (1983); Powers, Hospital Emergency Service and the Open Door, 66 M I C H . L . REV. 1455 (1968). Manlove, 174 A.2d at 140. Id. See, e.g., Fabian, 344 A.2d at 569.

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280 initions of medical emergency," policy standards for emergency services,58 and/or policy statements regarding a hospital's duty to provide emergency care.59 Courts may have consequently found it easier to hold hospitals liable when such indicia of public policy demonstrate an intent to modify common law. For example, the courts have held that when hospitals are required to maintain emergency rooms, they are prohibited from denying emergency care to anyone without cause.60 Courts have found that "cause" does not encompass either nonresident alien status61 or economic considerations.62 Despite this judicial intervention, denials of even emergency care may not be infrequent. In addition to the difficulty inherent in defining and applying the "emergency" standard, some private hospitals also have refused to treat undocumented persons who lack sufficient cash, regardless of their medical condition. A three-year-old child was kept waiting in the 57

T h e American Hospital Association defines an emergency as any condition that, in the opinion of the patient, the patient's family, or whoever assumes the responsibility of bringing the patient to the hospital, requires immediate attention. This condition continues until a determination has been made by a health care professional that the patient's life or well-being is not threatened. A true emergency is any condition that has been clinically determined to require immediate medical attention. These conditions range from those that require extensive and immediate care to those that are diagnostic problems and may or may not require admission after work-up and observation. AMERICAN HOSPITAL ASSOCIATION, EMERGENCY SERVICES 5-8 (1982).

The American College of Emergency Physicians has adopted a broad interpretation of "medical emergency," that includes the following: (1) the immediate and continuing clinical identification of potentially life and limb-threatening or disabling conditions; (2) the application of resuscitative techniques and other interventions that are required for biological and psychological homeostasis; (3) the continuing short-term assessment of the patient's condition beyond the immediate life, limb, and disability threats; (4) the orderly transfer of responsibility for the management of the patient; and, (5) the management of unanticipated and unscheduled health crises. American College of Emergency Physicians, Definition of Emergency Medicine, 10 ANNALS EMERGENCY M E D . 3 8 5 , 385-88 (1981). 58


(1990). " A n y individual who comes to the hospital for emergency medical evaluation or initial treatment shall be properly assessed by qualified individuals and appropriate services shall be rendered within the defined capability of the hospital." Id. at 29. "Individuals shall be accorded impartial access to treatment or accommodations that are available or medically indicated, regardless of race, creed, sex, national origin, or sources of payment of care." Id. at xiii. The Accreditation Manual further provides: 59

A patient may not be transferred to another facility or organization unless he has received a complete explanation of the need for the transfer and of the alternatives to such a transfer and unless the transfer is acceptable to the other facility or organization. The patient has the right to b e informed by the practitioner responsible for his care, or his delegate, of any continuing health care requirements following discharge from the hospital. Id. at xvi. 60

61 62

Guerrero v. Copper Queen Hosp., 2 2 Ariz. App. 6 1 1 , 5 2 9 P.2d 1205 (1974), vacated, 112 Ariz. 104, 537 P.2d 1329 (1975). See also Guerrero v. Copper Queen H o s p . , 23 Ariz. App. 172, 531 P.2d 548 (1975). Guerrero, 529 P.2d at 1205. Thompson v. Sun City Community H o s p . , 141 Ariz. 597, 688 P.2d 605 (1984) (en bane).

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emergency room of a private hospital for attention to his "severely" broken arm. The three local orthopedists allegedly had decided not to treat indigent emergency patients. The child was the son of a farmworker.63 Two private hospitals in Texas denied care to a young woman, eight months pregnant, with a ruptured uterus. Both she and the child died.64 Situations such as these have shocked the consciences of many.65 The conduct is all the more alarming because some of the institutions responsible for the denial of emergency care may have been obligated to provide "emergency services" by one or more of the federal statutes discussed below.

2. The Hill-Burton Act Over one-half of the hospitals in the United States66 have received construction funds pursuant to the Hill-Burton Act.67 The Act was designed to assist the states to carry out programs for the construction and modernization of public and nonprofit community hospitals and other medical facilities, in order to furnish adequate hospital, clinic, or similar services to all their people.68 In exchange for this assistance, each Hill-Burton facility assumed an obligation to furnish a reasonable volume of free or reduced cost care to individuals unable to pay and to render services available to all individuals who resided in the facility's general service area, without discrimination.69 The former obligation is known as the uncompensated care obligation, and the latter, the community service obligation.70


64 65 66

Jarvis, Painful Plight of Injured Boy Common for Area Indigents, Morning Herald, Feb. 9, 1979, cited in Dallek, supra note 2 1 , n.12. Dallas Times Herald, Mar. 10, 1979, at 1, cited in Dallek, supra note 2 1 , n . 1 3 . See H.R. REP. N O . 5 3 1 , 100th Cong., 2d Sess. (1988). PUBLIC HEALTH SERVICE, U N I T E D STATES D E P T . OF H E A L T H , EDUCATION & WELFARE, FACTS A B O U T THE HILL-BURTON PROGRAM, JULY 1, 1 9 4 7 - J U N E 3 0 , 1971, at 4 ( H E W P u b . N o . 72-4006, 1972),



69 70

cited in Comment, Provision of Free Medical Services by Hill-Burton Hospitals, 8 HARV. C . R . C . L . L . REV. 3 5 1 , 352 n.9 (1973). Approximately 7,000 medical institutions have received HillBurton funding. 42 Fed. Reg. 29399 (May 18, 1979). See generally S. REP. N O . 1285, 93d Cong., 2d Sess., reprinted in 1974 U . S . C O D E C O N G . & ADMIN. NEWS 7842, 7860-65. Hospital Survey & Construction Act, Pub. L. N o . 79-725, 6 0 Stat. 1040 (1946) (current version at 42 U . S . C . §§ 291-291o-l (1988)). Pub. L . N o . 79-725, supra note 6 7 , § 6 0 1 . See also Hearings on Section 191 Before the Senate Comm. on Education and Labor, 79th Cong., 1st Sess. 3 0 , 19091 (1945). F o r a discussion of the legislative history of the Hill-Burton Act, see Rosenblatt, Health Care Reform and Administrative Law: A Structural Approach, 88 YALE L . J . 243 (1978). Pub. L . N o . 79-725, supra note 6 7 , § 622(f). The Surgeon General was authorized to condition the receipt of Hill-Burton funds on the furnishing of uncompensated care and community service assurances from the participating facility. Id. T h e original act provided: [T]he Surgeon General . . . shall by general regulation prescribe . . . (f) That the state plan shall provide for adequate hospital facilities for . . . persons unable to pay therefor. Such

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Prior to the early 1970s, states did not monitor facilities' compliance with their contractual obligations to provide uncompensated care and community services.71 In 1972, the Department of Health and Human Services (HHS), in response to much litigation against facilities for their failure to provide the required care,72 issued regulations quantifying the "reasonable volume" of services to be provided pursuant to the uncompensated care requirement.73 Despite the regulations, facilities continued to disregard their obligation to provide uncompensated care,74 sometimes billing the patient prior to determining eligibility for uncompensated care.75 The Hill-Burton regulations were again revised following a 1974 General Accounting Office report and Senate Subcommittee hearings on the lack of uncompensated care.76 Noncompliance continued, resulting in additional litigation,77 Congressional hearings,78 and revised regulations setting forth the annual level of required uncompensated care, rules for the determination of income eligibility, and additional reporting and recordkeeping requirements.79 regulation may require that before approval of any application for a hospital or addition to a hospital is recommended by a state agency, assurance shall be received by the State from the applicant that . . . (2) there will be made available in each such hospital or addition to a hospital a reasonable volume of hospital services to persons unable to pay therefor, but an exception shall be made if such requirement is not feasible from a financial standpoint. A similar provision exists in the current statute. 42 U . S . C . § 291c(e) (1988). 71


73 74

75 76 77






FARE, S. REP. N O . 1285, supra note 66. See Cook v. Ochsner Found. Hosp., 319 F. Supp. 603 (E.D. La. 1970), aff'd, 559 F.2d 968 (5th Cir. 1977); Euresti v. Stenner, 458 F.2d 1115 (10th Cir. 1972); Organized Migrants in Community Action v. James Archer Smith Hosp., 325 F. Supp. 268 (S.D. Fla. 1971). 42 C.F.R. §§ 53.111, 53.113 (1973). See S. REP. N O . 1285, supra note 66, at 7900. Even more recently, one researcher has found areas of noncompliance related to the uncompensated care requirement in a number of facilities, including failures to provide an individual written notice of the free care provision, the use of an inaccurate individual written notice, errors in determining income eligibility, errors in determining the amounts of Hill-Burton coverage, errors in making conditional determinations of eligibility, crediting accounts not allowable as Hill-Burton care, compliance level errors, allowable credit errors, and recordkeeping and reporting errors. O'Neill, Site Visits at 21 Hill-Burton Facilities Reveal Extensive Noncompliance, 16 CLEARINGHOUSE REV. 404 (1982). Corum v. Beth Israel Med. Center, 373 F. Supp. 550 (S.D.N.Y. 1974). S. REP. N O . 1285, supra note 66. The court in Newsom v. Vanderbilt Univ., 453 F. Supp. 401 (M.D. Tenn. 1978), modified, 653 F.2d 1100 (6th Cir. 1981) found that eligible persons have an enforceable property right in HillBurton. The court further found that the procedure by which uncompensated care was to be allocated must comport with due process. Additionally, hospitals were to be required to provide individual notice of the availability of uncompensated care in addition to written eligibility criteria. Hearings on S. 544 Before the Subcomm. on Health and Scientific Research of the Sen. Comm. on Labor and Human Resources, 96th Cong., 1st Sess. (1979). 42 C.F.R. §§ 124.501-124.512 (1979) (current version at 42 C.F.R. §§ 124.501-124.516 (1991)). These regulations were challenged by hospitals that had received funds pursuant to the Hill-Burton program. Wyoming Hosp. Ass'n v. Harris, 727 F.2d 936 (10th Cir. 1984).

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Despite the extensive reformation of regulations and practices under the Hill-Burton Act, it remains difficult for an undocumented individual to obtain hospital care under the uncompensated care provision. The institution's obligation to provide uncompensated care runs for either 20 years after the completion of the construction or until the date on which repayment of certain loans is completed.80 For many, the requisite 20-year period may have elapsed or the loan may have been repaid. Although the regulations require publication of a notice by the facility, detailing its uncompensated care services obligation,81 it is unlikely that undocumented individuals would know either of that requirement or how to locate that notice. The regulations require that the facility post notices in the admissions area, the business office, and the emergency room, and provide individual written notice of the availability of uncompensated care services to each person seeking services in the facility.82 Provision is made for the translation of the posted notice into languages other than English,83 and for "reasonable efforts [by the facility] to communicate the contents of [the written and posted notices],"84 No provision is made for the translation of the individual written notice. "Reasonable effort" on the part of the facility remains undefined. Additionally, an undocumented individual who is not literate in English or in the language of the posted notice likely will lack awareness of the importance of the posted notice or the right to question the facility about the subject of the posting. The manner in which eligibility determinations are made also may be problematic for the undocumented alien. A recent HHS policy notice provides that aliens must have resided in the United States for at least three months to establish eligibility.85 The regulations further provide that, as a condition to providing uncompensated care service, the facility may require "any information that is reasonably necessary to establish eligibility,"86 and may also require the applicant to apply for benefits from third party insurer or governmental programs under which the individual may be

80 81 82 83 84 85

4 2 C.F.R. § 124.501 (1991). Id. § 124.504. Id. § 124.504(c). Id. § 124.504(b). Id. § 124.504(b), (c). DEPARTMENT O F H E A L T H AND H U M A N S E R V I C E S , PROGRAM POLICY N O T I C E N O . 89-5 (1989). This

would eliminate t h e availability of services under this Hill-Burton provision for aliens w h o a r e holders of border crossing cards (INS F o r m 1-186) that permit an alien resident in certain areas in Mexico to enter into the United States for a maximum of 72 hours. T h e alien must r e main within 2 5 miles of the border. See 2 2 C.F.R. § 4 1 . 3 2 (1991) (for a description of this visa status). 86

4 2 C.F.R. § 124.507(b)(2)(A) (1991).

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entitled to benefits.87 These regulations reflect a concern that benefits be provided only to those who are truly eligible.88 However, the required documentation may be well beyond the ability of many undocumented aliens to provide. Many undocumented individuals receive income or earnings in the form of cash payments and consequently have no evidence to support either their claim of long-term residency or their estimate of income.89 Employers may refuse to provide documentation due to fears, whether realistic or not, of criminal and/or civil penalties stemming from their violation of immigration90 and/or tax laws.91 Those undocumented individuals who have been paid by check may have consciously decided to discard all documentation that could potentially reveal their presence in the United States.92 An undocumented individual who receives such a conditional determination may consequently fail to qualify, not because of ineligibility, but because of personal circumstances. Unlike the uncompensated care provision, the original community service provision required that Hill-Burton facilities make their services available to all residents of the facility service area, without discrimination.93 Although regulations allowed facilities to limit the availability of their services based on the individual's ability to pay,94 judicial review found such "patient dumping" practices arbitrary, unrelated to a legitimate 87





92 93 94

Id. § 124.507(b)(2)(B). For an extensive discussion of the impropriety of Medicare reimbursement for Hill-Burton free care prior to the introduction of legislation forbidding such reimbursement, see Comment, The Propriety of Reimbursement by Medicare for Hill-Burton Free Care, 130 U . P A . L. REV. 892 (1982). The courts have held that Medicare reimbursement for Hill-Burton free care was prohibited. Metropolitan Med. Center & Extended Facility v. Harris, 693 F.2d 775 (8th Cir. 1982). See also American Hosp. Ass'n v. Schweiker, 721 F.2d 170 (7th Cir. 1983), cert, denied, American Hosp. Ass'n v. Heckler, 466 U . S . 958 (1984); John Muir Memorial Hosp. v. Davis, 726 F.2d 1443 (9th Cir. 1984), aff'g, 559 F. Supp. 1042 (N.D. Cal. 1983). Eligibility rules are based on the federal poverty guideline and are found at 42 C.F.R. § 124.505 (1991). This is a common problem faced by many applicants for immigration benefits and their advocates, when eligibility for the immigration remedy depends, in part, on the applicant's ability to establish, through documentary evidence, physical presence or residence in the United States for specified periods of time. See, e.g., Immigration and Nationality Act, 8 U . S . C . §§ 1160, 1254, 1255a, 1259 (1988 & Supp. II 1990). Employers may be sanctioned by the Immigration and Naturalization Service for employing persons not authorized to work in the United States. Immigration and Nationality Act, 8 U . S . C . § 1324a (1988), as amended by I M M A C T 9 0 , supra note 6. For a discussion of employer sanctions generally, see Comment, Illegal Immigration: Employer Sanctions and Related Proposals, 19 SAN DIEGO L. REV. 149 (1981). See generally Wheeler & Tholfsen, Social Security Issues Affecting Aliens, in 2 IMMIGRATION AND NATIONALITY LAW 669-78 (R. Murphy, E. Rubin, D . Wolfson, & J. Juceam, eds. 1990). See supra note 89. Pub. L. No. 79-725, supra note 6 7 , § 6 2 2 ( 0 . 42 C.F.R. § 53.113(d)(1)(ii) (1975), as added by 39 Fed. Reg. 31767 (1974) (current version at 42 C.F.R. § 53.113(d)(1)(i) (1991)).

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government interest, and thus unlawful.95 The courts also have struck down a 20-year limitation on the community service obligation, finding no statutory basis for such a regulation.96 The regulations that currently govern the community service obligation97 were originally promulgated in 1979.98 The regulations provide that the community service assurance must be fulfilled "without discrimination on the ground of race, color, national origin, creed, or any other ground unrelated to an individual's need for the service or the availability of the needed service in the facility."99 A person will be considered to be residing in the facility's service area if the individual is (1) living there with the intention of remaining permanently or for an indefinite period of time; (2) living there for purposes of employment; or, (3) living with a family member who lives in the service area.100 Undocumented aliens should potentially be eligible for care based on the nondiscrimination provision and the broad definition of resident. However, the regulations permit a facility to "deny services to persons who are unable to pay for them unless those persons are required to be provided uncompensated services . . . ."'01 As discussed previously, access to care by undocumented individuals under the uncompensated care provision is problematic. The practical effect of this limitation is to curtail an undocumented person's access to care in a Hill-Burton facility. An exception is available only in the case of emergency services. Hill-Burton regulations specify that emergency services may not be denied to any person who resides in the facility's service area due to inability to pay.102 However, a person treated or admitted under this provision may be discharged or transferred to another facility that is able to provide the necessary services "when the appropriate medical personnel determine that discharge or transfer will not subject the person to substantial risk of deterioration in medical condition."103 The health care facility also may



97 98 99 100 101

102 103

Gordon v. Forsyth County Hosp. Auth., Inc., 409 F. Supp. 708 ( M . D . N . C . 1975), aff'd in part, vacated in part, 544 F.2d 748 (4th Cir. 1976). Lugo v. Simon, 426 F. Supp. 28 ( N . D . Ohio 1976). See also Lugo v. Simon, 453 F. Supp. 677 (N.D. Ohio 1978). 42 C.F.R. §§ 124.601-.607 (1991). 42 Fed. Reg. 29379-29282 (1979). 4 2 C.F.R. § 124.603(a)(1) (1991). Id. § 124.603(a)(2). Id. § 124.603(a)(1). One writer has found that, although undocumented aliens are eligible for care based on the community service provisions, they may experience difficulty obtaining that care. National Health Law Program, Hill-Burton Primer: Putting Flesh on the Bones of the Hill-Burton Community Service Obligation, 19 CLEARINGHOUSE REV. 13, 17 (1985).

42 C.R.R. § 124.603(b)(1)(1991). Id. § 124.603(b)(2) (emphasis added).

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seek reimbursement from third party payors or federal governmental programs such as Medicare and Medicaid.'04 It would appear that Hill-Burton facilities are obligated to provide undocumented aliens with at least emergency care based upon these provisions. However, the regulations neither define nor give any guidance as to the meaning of "emergency." The Department of Health and Human Services Office for Civil Rights, which is responsible for the enforcement of the Hill-Burton community service requirements, has defined "emergency services" in its policy manual as "those services which are necessary to prevent the death or serious impairment of the health of the individual, and which, because of the threat to the life or health of the individual, necessitate the use of the most accessible hospital [available and] equipped to furnish such services."105 This standard implies that services may be denied to an individual when the denial results in impairment that is less than serious. The regulations governing the community service requirement also provide for the posting of a notice in languages in addition to English and for "reasonable efforts to communicate the contents of the posted notice to persons who [the facility] has reason to believe cannot read the notice."106 The provision presents the same obstacles for undocumented persons as does the uncompensated care posting requirement. 3. Medicare Medicare is a two-part federal program overseen by HHS which provides health insurance for disabled and elderly individuals.107 Hospital insurance is available through Part A of the program, and covers hospitalization and related care. Part A is financed through the social security tax. Part B of the program offers supplemental medical insurance to cover physicians' care and other health services. Recipients of Part B benefits must pay a monthly premium.108


Id. § 124.603(c). F o r a discussion of undocumented aliens' ability to access care through Medicaid and Medicare, see infra text accompanying notes 107-24.


42 C.F.R. § 124.604 (1991). 107 Social Security Act, tit. XVIII, 42 U . S . C . §§ 1395-1395ccc (1988 & Supp. I. 1989), as amended by Pub. L . N o . 101-508, 104 Stat. 1388, Pub. L. N o . 101-597, 104 Stat. 3035; 42 C.F.R. pt. 4 0 5 (1991). For an in-depth critique of the Medicare program, see Kinney, National Coverage Policy Under the Medicare Program: Problems and Proposals for Change, 32 ST. LOUIS U.L.J. 869 (1988). F o r a discussion of the political angst surrounding the inception of Medicare, see Brown, Medicare and Medicaid: The Process, Value and Limits of Health Care Reforms, 4 J. P U B . HEALTH POL'Y 335 (1983). 108

F o r a discussion of problems with Part B coverage, see McMenamin, Medicare Part B: Rising Assignment Rates, Rising Costs: Symposium Report, 24 INQUIRY 344 (1987).

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Unlike the uncompensated care provision of the Hill-Burton obligation, eligibility for Medicare does not depend on financial need. Rather it is a health insurance system with eligibility linked to social security eligibility. Consequently, benefits are available to working persons who are elderly, blind, or disabled, and have worked in covered employment under a valid social security number.109 The requirement of a valid social security number is problematic for the majority of undocumented workers. In order to obtain a valid social security number that can be used for employment purposes, one must demonstrate legal residence in the United States, whether temporary or permanent, and authorization to work.110 Clearly, undocumented aliens are unable to establish either and may invent or "borrow" the social security number of another individual. Too, many undocumented aliens may have worked in employment not encompassed by the Medicare provisions.111 4. Medicaid Medicaid is "a cooperative federal/state cost-sharing program designed to enable participating states to furnish medical assistance to persons whose income and resources are insufficient to meet the costs of necessary medical care and services.""2 Two groups of individuals are eligible for Medicaid: the categorically needy and the medically needy.113 Persons who are eligible for Aid to Families with Dependent Children114 or


42 U . S . C . § 1395i-2(a)(3) (1988); 42 C.F.R. § 406.20(b)(2)(l) (1991). A n alien who is not eligible for social security retirement or disability benefits can enroll in Part A by paying the full actuarial cost of the coverage. However, an alien must be lawfully admitted for permanent residence and have lived in the U . S . continuously for five years in order to rely on this provision. 42 U . S . C . § 1395i-2(a)(3) (1988); 42 C.F.R. § 406.20(b)(2) (1991). A similar provision exists with respect to Part B coverage. 4 2 U . S . C . § 1395o(2) (1988); 42 C.F.R. § 407.10 (1991). 110 The social security law was amended in 1972. Pub. L . N o . 92-603, 86 Stat. 1329 (1972). Prior to these amendments, it was fairly easy for an undocumented alien to obtain a social security number. However, the 1972 amendments placed restrictions on the issuance of social security numbers valid for employment so that they are now available only to U . S . citizens, lawfully admitted permanent resident aliens, and aliens with lawful immigration status w h o are authorized to work by the INS. 42 U . S . C . § 405(c)(2)(B)(i) (1988); 2 0 C.F.R. 422.104 (1991). For a discussion of various means by which an undocumented alien can obtain permanent residence, see IMMIGRATION LAW AND D E FENSE, supra note 1 1 , §§ 4.1-4.22. For a description of various other lawful immigration statuses that permit an alien to work legally in the U . S . , see generally R. STEEL, STEEL ON IMMIGRATION LAW (1985 & Supp. 1990). See also 8 C.F.R. § 274a. 12.14 (1991). For a brief discussion of the payroll tax and Medicare eligibility, see G. ANNAS, S. LAW, R. ROSENBLATT, & K. W I N G , AMERICAN HEALTH LAW 187-88 (1990). 112 113


DeJesus v . Perales, 7 7 0 F.2d 316, 3 1 8 (2d Cir.), cert, denied, 4 7 8 U . S . 1007 (1985). Social Security Act, tit. XLX, 42 U . S . C . §§ 1396-1396u (1988 & Supp. I 1989), as amended by Pub. L . N o . 101-476, 104 Stat. 1142, P u b . L . N o . 101-508, 104 Stat. 1388. Social Security Act, tit. IV-A, 42 U . S . C . §§ 601-617 (1988 & Supp. I 1989), as amended. A F D C provides cash assistance to needy families with dependent children.

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Supplemental Security Income"5 are automatically eligible to receive Medicaid as categorically needy recipients."6 Categorically needy recipients have been described as those who earn "no more . . . than [that] required for the basic necessities of life."" 7 Other persons may be eligible for Medicaid if they meet the requirements established by their state. These medically needy individuals may have been able to pay for the basic necessities of life, but not for the expense of required medical care." 8 The Medicaid statute did not at first address the eligibility of aliens to receive services under this program."9 However, agency regulations restricted Medicaid coverage to only certain groups of aliens120 until one federal court found the regulations invalid as having been promulgated without statutory authority.121 That judicial decision prompted the enactment of legislation which now restricts alien eligibility for the full scope of Medicaid services to lawfully admitted permanent resident aliens and aliens permanently residing in the United States under color of law.122


116 117 118 119 120



Supplemental Security Income (SSI) is a federally funded program that provides cash assistance to low income individuals w h o are blind, aged, or disabled. 42 U . S . C . §§ 1381-1383d (1988), as amended by Pub. L . N o . 101-239, 103 Stat. 2137, Pub. L . N o . 101-508, 104 Stat. 4978. Social Security Act, tit. XIX, supra note 113. DeJesus, 7 7 0 F.2d at 3 2 1 . Id. Social Security Act, tit. XIX, supra note 113. The regulation provided in pertinent part: The agency must provide Medicaid to otherwise eligible residents of the United States w h o are . . . (b) Aliens lawfully admitted for permanent residence or permanently residing in the United States under color of law, including any alien who is lawfully present in the United States under section 203(a)(7) [refugee] or section 212(d)(5) [parole] of the Immigration and Nationality Act. 42 C.F.R. § 435.406(b)(1986). For an explanation of each of these various immigration statuses, see generally, R. STEEL, supra note 110. Lewis v. Gross, 663 F. Supp. 1164 (E.D.N.Y. 1986). See also Lewis v . Grinker, 660 F. Supp. 169 (E.D.N.Y. 1987). F o r a brief opinion on the wisdom of the challenged regulation, see Illegal Aliens' Health—and Ours, N.Y. Times, Aug. 10, 1986, at E24, col. 1. Omnibus Budget Reconciliation Act of 1986, P u b . L . N o . 99-509, § 9406, 100 Stat. 1874, 2507, amending 4 2 U . S . C . § 1396(b) [hereinafter OBRA]. The legislative history of OBRA defines aliens "permanently residing under color of l a w " (PRUCOL) as individuals in " a l l of the categories recognized by immigration law, policy, and practice." H . R . REP. N O . 7 2 7 , 99th Cong., 2d Sess. 111, reprinted

in 1986 U . S . C O D E C O N G . & A D M I N . N E W S 3607, 3 7 0 1 .

In 1990, HHS promulgated a final rule that specifies that PRUCOL aliens are eligible for all Medicaid services. The P R U C O L category now includes aliens residing in the United States pursuant to a grant of voluntary departure, aliens who are the beneficiaries of approved immediate relative petitions, asylees, refugees, aliens granted stays of deportation, and applicants for adjustment of status to permanent residence. P R U C O L also includes " a n y other aliens living in the United States with the knowledge and permission of the [INS] and whose departure that agency does not contemplate enforcing." 55 Fed. R e g . 36813-23 (Sept. 7 , 1990). T h e regulation took effect on October 9, 1990. For judicial construction of PRUCOL eligibility in the context of health services, see Cruz v . Commissioner of Pub. Welfare, 395 Mass. 107, 4 7 8 N.E.2d 1262 (1985) (visitor who had overstayed visa); St. Francis Hosp. v. D'Elia, 71 A.D.2d 110, 422 N.Y.S. 2d 104

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The 1986 amendments further revised the Medicaid statute to permit the federal reimbursement of state expenditures incurred in the care of undocumented aliens' emergency medical conditions if they were otherwise eligible under the economic and categorical eligibility requirements of Medicaid.123 "Emergency medical condition" is defined as a medical condition, including emergency labor and delivery, that manifests by acute symptoms of sufficient severity such that the absence of immediate medical attention could reasonably be expected to result in placing the patient's health in serious jeopardy, in serious impairment to bodily functions, or in the serious dysfunction of any bodily organ or part.124 These emergency medical care provisions of the Medicaid statute should ostensibly work together with the "antidumping" provisions of the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA)125 to screen and treat undocumented aliens needing emergency medical care and to reimburse the states through Medicaid for the costs of such care for undocumented aliens otherwise eligible for Medicaid. The Supreme Judicial Court of Massachusetts, however, upheld a state residency requirement applicable to even emergency care, resulting in the ineligibility of undocumented aliens for emergency Medicaid in that state.126

5. COBRA COBRA is an antidumping provision aimed at the prevention of hospital transfers of unstable emergency patients for economic reasons.127 The statute provides that any hospital that receives Medicare payments and has

123 124 125



(1979), aff'd, 440 N.Y.S.2d 185 (1981) (application for immigrant visa); Papadopoulos v. Shang, 67 A.D.2d 84, 414 N.Y.S.2d 152 (1979) (adjustment of status). For a discussion of the meaning of PRUCOL under other public benefit laws, see Carton, The PRUCOL Proviso in Public Benefits Law: Alien Eligibility for Public Benefits, 14 NOVA L . REV. 1033 (1990); Rubin, Walking a Gray Line: The "Color of Law" Test Governing Noncitizen Eligibility for Public Benefits, 24 SAN DIEGO L. R E V . 4 1 1 (1987); Wheeler, Alien Eligibility for Public Benefits: Part I, 88-11 IMMIGRATION BRIEFINGS 1 (1988). See also Department of Health and Rehab. Serv. v. Solis, 5 8 0 So. 2d 146 (Fla. 1991) (AFDC); Holley v. Lavine, 5 5 3 F.2d 845 (2d Cir. 1977), cert, denied, 4 3 5 U . S . 9 4 7 (1978) (AFDC). 4 2 U . S . C . § 1396b(v)(2) (1988). Id. § 1396(b)(v)(3). See also 5 6 Fed. R e g . 10806-07 (1991). Pub. L . N o . 99-272, § 9 1 2 1 , 100 Stat. 8 2 , 164-67 (1986), codified as amended at 4 2 U.S.C. § 1395dd [hereinafter COBRA]. Salem Hosp. v. Commissioner of Pub. Welfare, 574 N . E . 2 d 385 (Mass. 1991). But see Crespin v. Kizer, 2 2 6 Cal. App. 3d 498, 276 Cal. Rptr. 571 (1990). See F r e w , Roush, & LaGreca, COBRA: Implications for Emergency Medicine, 17 A N N A L S EMERGENCY M E D . 835, 836 (1988). T h e courts have been divided as to whether a plaintiff must allege indigency o r lack of insurance t o state a claim under the statute. Compare Burrows v. Turner M e m . H o s p . , 762 F. Supp. 840 (W.D. Ark. 1991); Deberry v. Sherman Hosp. A s s ' n , 741 F. Supp. 1302 (N.D. Ill. 1990) ( n o allegation of indigency required), dismissed on other grounds, 7 6 9 F. Supp. 1030 (N.D. Ill. 1991), with Nichols v. Estabrook, 741 F. Supp. 325 (D.N.H. 1989) (no liability found in absence of allegation that financial condition or lack of health insurance contributed to physician's decision at hospital not to treat patient).

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an emergency department must provide an appropriate medical screening examination to any individual who presents at the emergency department and for whom a request is made for examination or treatment of a medical condition. This statutory provision has been construed as imposing strict liability on the hospital when a request has been made.128 The screening examination must determine whether an emergency medical condition exists or if the individual is in active labor.129 A hospital will be found to have fulfilled the screening requirement when it "conforms in its treatment of a particular patient to its standard screening procedures."130 The definition of an "emergency medical condition" tracks the definition in the Medicaid statute, discussed above.131 "Active labor" includes times when delivery is imminent, when there is insufficient time to transfer the patient safely to another hospital prior to delivery, and when a transfer may pose a threat to the health and safety of the patient or the unborn child.132 When the emergency medical examination determines that the patient is either suffering from an emergency medical condition or is in active labor, the hospital must stabilize the patient's medical condition or provide treatment in connection with the patient's labor. Alternatively, the hospital may transfer the patient to another medical facility.133 However, the hospital may not transfer the patient to another facility unless: (1) the patient has stabilized; (2) the patient or a legally responsible representative has requested a transfer; or, (3) a physician or other qualified health care provider has certified in writing that the medical benefits reasonably expected to result from the treatment at the receiving facility outweigh the risks to the individual's medical condition resulting from the transfer. That certification must be based on a consideration of the reasonable risks and benefits to the patient and "the information available at the time."134 A transfer will be considered appropriate within the meaning of the statute only under the following circumstances: (1) the receiving facility has available space and qualified personnel to treat the patient; (2) the receiving facility has agreed to accept the transfer of the patient and to provide appropriate medical treatment; (3) the transferring hospital provides the receiving facility with appropriate medical records of the exam128

Stevison v . Enid Health Systems, Inc., 9 2 0 F.2d 7 1 0 (10th Cir. 1990) (construing Social Security Act § 1867(a), 4 2 U . S . C . § 1395dd(a)). See also Reid v . Indianapolis Osteopathic Med. H o s p . , 709 F. Supp. 8 5 3 , 855 (S.D. Ind. 1989). 129 4 2 U . S . C . § 1395dd(a) (1988), as amended by Pub. L . N o . 101-239, § 6 2 1 1 , 103 Stat. 2245. 130 Gatewood v . Washington Healthcare C o r p . , 933 F.2d 1037 (9th Cir. 1991). See also Cleland v. Bronson Health Care Group, Inc., 9 1 7 F.2d 2 6 6 (6th Cir. 1990). 131 42 U . S . C . § 1395dd(e)(l) (1988 & Supp. I 1989). See supra text accompanying note 124. 132 4 2 U . S . C . § 1395dd(e)(i)(B) (1988 & Supp. I 1989). 133 Id. § 1395dd(b). 134 Id. § 1395dd(c)(1)(A).



ination and the treatment administered at the transferring hospital; and, (4) the transfer is effected by qualified personnel and transportation equipment as required.135 A 14-year-old car with no medical equipment, driven by the patient's boyfriend, has been found inadequate within this provision.136 B. Physicians

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/ . Ethical Obligation to Provide Care A distinction is often drawn between the initial formation of a physician-patient relationship and the provision of care to a patient within an already-established relationship. Physicians in the United States have vehemently asserted the right "to choose whom to serve."137 This decision is most likely based on economics, but also may reflect a need to provide charitable care.138 One writer, who did not distinguish between the initial formation of a relationship and an already existing physicianpatient relationship, has theorized that undocumented aliens may have a moral claim to medical care, notwithstanding their noncitizenship and any arguments that they have forfeited their moral claim by entering into or remaining in the United States illegally.139 However, in view of the reluctance of many physicians to treat indigent patients,140 it is likely that many, if not most, undocumented aliens are unable to establish a

135 136 137

Id. § 1395dd(c)(2). Owens v . Nacogdoches County Hosp. Dist., 741 F. Supp. 1269, 1276 ( E . D . Tex. 1990). See A M E R I C A N M E D I C A L ASSOCIATION, PRINCIPLES O F M E D I C A L E T H I C S § V I ( 1 9 8 0 ) , reprinted B E A U C H A M P & J. C H I L D R E S S , PRINCIPLES O F BIOMEDICAL E T H I C S 3 2 9 , 332 (2d ed. 1983). See


in T. also

Ad H o c Committee on Medical Ethics, American College of Physicians, American College of Physicians Ethics Manual, 101 ANNALS INTERNAL M E D . 129, 132 (1984) [hereinafter Ethics Manual]. T h e 1955 A M A Principles of Medical Ethics noted that the "[p]overty of a patient . . . should c o m m a n d the gratuitous service of a physician . . . ." AMERICAN M E D I C A L ASSOCIATION, PRINCIPLES O F M E D I C A L E T H I C S c h . V I I , § 1 ( 1 9 5 5 ) , reprinted

456 (6th ed. 1967). Earlier A M A Principles

in C . M C M A D D E N , M E D I C A L E T H I C S 4 4 6 ,

of Medical Ethics did not contain this precept. AMERI-

C A N M E D I C A L ASSOCIATION, PRINCIPLES O F M E D I C A L E T H I C S 5 5 ( 1 9 7 1 ) , reprinted

in R .


C A S E STUDIES IN M E D I C A L E T H I C S 3 5 1 , 354 (1977). 139 140

Nickel, supra note 2 , at 21-33. Elias, Physicians Who Limit Their Office Practice to Insured and Paying Patients (Letter to Editor), 314 N E W E N G . J. M E D . 3 9 1 (1986); Dallek, Health Care for America's Poor: Separate and Unequal, 2 0 CLEARINGHOUSE REV. 3 6 1 (1986); National Health L a w Program, Increasing Clients' Access to Medicaid Providers: New Developments, 18 CLEARINGHOUSE REV. 1269 (1985). See also Newacheck, Access to Ambulatory Care for Poor Persons, 2 3 HEALTH SERV. R E S . 4 0 1 (1988). F o r a comparison of the quality of care received by the poor and nonpoor, see Brook, Kamberg, Lohr, Goldberg, Keeler, & Newhouse, Quality of Ambulatory Care: Epidemiology and Comparison by Insurance Status and Income, 2 8 M E D . C A R E 392 (1990). Cf. Kindig, Movassaghi, Dunham, Zwick, & Taylor, Trends in Physician Availability in 10 Urban Areas from 1963 to 1980, 2 4 INQUIRY 136 (1987) (decline in office-based primary care physician availability in poverty areas greater than in nonpoverty areas).

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physician-patient relationship absent private funds or private insurance to cover the costs of the treatment sought, charitable or moral considerations notwithstanding.141 The physician's ethical obligation to provide care subsequent to the establishment of a physician-patient relationship is significantly more compelling. The Hippocratic Oath establishes the physician's duty to act "for the benefit of the sick."142 The World Medical Association Declaration of Geneva counsels the physician to make the health of the patient the foremost consideration and to disregard religion, nationality, race, party politics, or social standing in fulfilling obligations to the patient.143 The International Code of Medical Ethics enjoins a physician from permitting "motives of profit to influence the free and independent exercise of professional judgment on behalf of patients."144 Some religious doctrines may obligate the physician to provide care not only in life-threatening situations, but also when care is required to alleviate pain or to preserve the patient's well-being.145 Theoretically, at least, an undocumented individual with an alreadyestablished physician-patient relationship should be able to obtain the necessary care from a physician, notwithstanding the patient's undocumented status. Unfortunately, patient reliance on this precept may be mis-


142 143

" S o o n e must not b e anxious about fixing a fee. F o r I consider such a worry to b e harmful t o a troubled patient, particularly if the disease b e acute. . . . Therefore, it is better t o reproach a patient you have saved than to extort money from those w h o a r e at death's door." 1 HIPPOCRATES 3 1 7 (W. Jones trans. 1962). Percival, however, cautioned against the provision of free medical advice to those w h o could afford it: A wealthy Physician should not give advice gratis t o the affluent, because it is an injury t o his professional brethren. T h e office of [the] Physician can never b e supported but as a lucrative o n e , and it is defrauding in some degree the common funds for its support, w h e n fees a r e dispensed with, which might justly b e claimed. Percival, Of Professional Conduct, in ETHICS IN MEDICINE 2 5 (1977). T h e Hippocratic Oath, in T. BEAUCHAMP & J . CHILDRESS, supra note 137, at 3 3 0 . T h e World Medical Association Declaration of Geneva (1948, as amended 1968), reprinted in T. B E A U C H A M P & J. CHILDRESS, supra note 137, at 3 3 1 .


Sohl & Bassford, Codes of Medical Ethics: Traditional Foundations and Contemporary Practice, 22 S o c . S c i . M E D . 1175, 1178 (1986) (citing World Medical Association, Handbook of Declarations). This should be distinguished from a consideration of the patient's economic situation in making treatment decisions. See Rosenblatt, Medicaid Primary Care Case Management, the Doctor-Patient Relationship, and the Politics of Privatization, 3 6 C A S E W. R E S . L. REV. 9 1 5 , 9 2 6 n . 4 3 (1986). F o r a discussion of medical ethics within the context of a health maintenance organization ( H M O ) , with its emphasis on cost savings and profit, see Povar & M o r e n o , Hippocrates and the Health Maintenance Organization: A Discussion of Ethical Issues, 109 A N N A L S INTERNAL M E D . 4 1 9 (1988). F o r instances of serious h a r m resulting from H M O gatekeeping practices, see Dallek, Politics of Privatization: Commentary, 3 6 C A S E W. R E S . L . REV. 9 6 9 , 977-78 (1986). 145 See, e.g., J . BLEICH, JUDAISM AND HEALING 3 , 12 (1981). See also Rosner, The Physician's Obligation to Heal AIDS Patients in Jewish Law, 260 J.A.M.A. 2837 (1988). For a comparison of the Hippocratic, Jewish, Catholic, Protestant, and secular precepts of medical ethics, see R. VEATCH, A THEORY OF MEDICAL ETHICS 3-49 (1981).

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placed. For example, this author has been consulted regarding the arrest of an individual by a Border Patrol agent146 from a hospital located in San Diego County. The patient's physician had reported the patient's undocumented presence to the INS after the patient once again required hospitalization due to complications arising from illicit drug usage.147 The physician involved had expressed his moral outrage at the use of public funds to treat undocumented law violators, even in emergency situations. It remains unclear whether the physician also had an economic motive for this behavior, as public funding did not cover the physician's normal charges. Physicians may find their professional ethical obligations challenged not only by their own moral sensibilities, but also by pressures to contain costs. Physicians employed within a government system may be told to choose between their jobs and their consciences, which mandate the treatment of undocumented patients despite a bureaucracy designed to contain such costs.148 Physicians employed by health maintenance organizations may find the level of their salaries dependent upon their ability to contain costs.149 In some circumstances, it may be unclear whether the reduction of costs represents a reduction of unnecessary services that is medically and economically beneficial to the facility, the physician, and the patient, or a reduction of services beneficial to the institution and the physician only. 15° When there exists a conflict between the interests of the hospital and the welfare of the patient, the physician must ethically give priority to the patient's welfare.151




F o r a discussion of the Border Patrol and its functions, see generally, 1 IMMIGRATION LAW SERVICE § 2.21 (1985 & Supp. 1992). This particular patient o r client would b e deportable d u e to illegal entry into the United States. Immigration and Nationality A c t , 8 U . S . C . § 1251(a)(l)(B) (1988 & Supp. II. 1990). In addition, the alien would b e deportable for having violated the narcotics laws of the United States. Id. § 1251(a)(2)(B). See, e.g., Health Care Services to Undocumented Persons, supra note 2 4 , at 273 (statement of Greg Anderson, M . D . , Physician Specialist-Internist, Central District Health Clinic). T h e Council on Ethical and Judicial Affairs of the A M A has stated that "[t]o expect a physician treating a patient to make rationing decisions based on governmental o r other external priorities in the allocation of scarce health resources creates an undesirable conflict with the primary responsibility of the physician to his patient." AMERICAN M E D I C A L ASSOCIATION, C U R R E N T OPINIONS § 2 . 0 3 , at 3 (1989)

[hereinafter 1989 OPINIONS]. In other situations a physician's ethical obligations may conflict even more dramatically with the dictates of the government. See Ethics Manual, supra note 137, at 136. 149 See Hillman, Financial Incentives for Physicians in HMOs: Is There a Conflict of Interest?, 3 1 7 N . E N G . J . M E D . 1743 (1987). 150 Cf. Pulvers v . Kaiser Found. Health Plan, 9 9 Cal. A p p . 3d 5 6 0 , 160 Cal. Rptr. 392 (1980) (court dismissed claim of H M O ' s fraudulent concealment of financial incentives for physician). 151 1989 OPINIONS, supra note 148, § 4 . 0 4 , at 6 . See generally Spielman, Financially Motivated Transfers and Discharges: Administrators' Ethics and Public Expectations, 9 J. M E D . HUMANITIES & BIOETHICS 32 (1988).



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2. Contractual Obligation to Provide Care As discussed previously, a physician generally may choose whom to treat.152 However, in some situations a physician may have a contractual obligation to provide care. This obligation may arise from the employment contract with the physician's employer to provide care in specific situations, or by virtue of a contract directly with the patient. Whether a contract has been established in either situation is largely determined on the basis of applicable state law. A physician may have a contractual obligation with an employer to provide care to all those who present themselves. This situation may arise in the context of an emergency room, where the on duty physician is obligated by contract with the hospital to treat all patients.153 Alternatively, a physician employed by a health maintenance organization may be required to provide care to all those enrolled in the plan.154 In such situations, an undocumented person should have access to the desired care so long as both the person and the procedure are otherwise covered by the applicable contract. The situation is somewhat more complex with respect to the obligations of private physicians to their patients. The existence of a contractual obligation to a particular patient may depend on whether a physicianpatient relationship already has been established. As an example, a physician-patient relationship will be found in Texas when there is a voluntary agreement between the physician and the patient to create such a relationship. A specific or formal agreement is not necessary. Rather, an appointment to see a private physician for a specific matter may create a duty to treat.155 The existence of a physician-patient relationship also may be implied from a physician's action.156 Once the physician has begun treating the patient, the physician may not unilaterally sever the relationship with the patient "without reasonable notice at a time when there is still the necessity of continuing medical attention."157 The obliga152 153

154 155

See supra notes 137-41 a n d accompanying text. See, e.g., Hiser v . Randolph, 126 Ariz. 6 0 8 , 6 1 7 P.2d 774 (Ariz. App. 1980). See also Mozingo v. Pitt County M e m . H o s p . , 101 N . C . A p p . 5 7 8 , 4 0 0 S.E.2d 7 4 7 (1991), review denied, 329 N . C . 498, 4 0 7 S.E.2d 537 (1991). But see Thompson v . Sun City Community H o s p . , 141 Ariz. 5 9 7 , 6 8 8 P.2d 6 0 5 (1984) (en banc). See Povar & Moreno, supra note 144, at 419-20. See Lyons v. Grether, 218 Va. 630, 239 S.E.2d 103 (1977). See also E . RICHARDS, L. M A X W E L L , & J . N E I B E L , T E X A S H E A L T H LAW M A N U A L 4 - 5 ( 1 9 8 4 ) .



Cf. Salas v. Gamoa, 7 6 0 S.W.2d 8 3 8 (Tex. A p p . 1988) (physician not liable for pediatric emergency when physician refused t o see the infant and h a d n o existing physician-patient relationship); Childs v. Weiss, 4 4 0 S.W.2d 104 (Tex. C i v . App. 1969) (no physician-patient relationship established where physician o n duty told telephoning nurse to have woman in active labor w h o presented herself at the emergency room call her o w n physician). L e e v . Dewbre, 362 S.W.2d 900, 9 0 2 (Tex. C i v . A p p . 1962).



tion to continue medical attention can be terminated only by the patient's discharge of the physician or the physician's withdrawal after giving the patient reasonable notice.158 Reasonable notice by the physician may require notice by certified letter stating the physician's intention to discontinue treatment of the patient.159

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C. State and County Obligations to Provide Care The availability of medical care to undocumented aliens through state and local programs varies considerably. Although several authors have argued that the lack of legal immigration status should not prevent an individual from becoming a state resident for the purpose of receiving medical care,160 many state statutes specifically exclude such individuals from the receipt of nonemergency medical benefits.161 Like federal law, a distinction is often drawn between entitlement to emergency, versus nonemergency, services. Appendix 1 provides a partial listing of states' eligibility criteria relevant to undocumented persons' need for nonemergency services. Not surprisingly, services are rarely available to undocumented individuals. Appendix 2 provides a listing of those states in which case law and/or statutory law arguably provide a basis for the receipt of emergency medical care services by undocumented aliens.162 These obligations to provide care exist in addition to those existing under federal law, discussed previously. Table 1 provides a summary of patients' characteristics that are specifically protected by states' emergency care laws. Only three states— Arizona, California, and Florida—specifically prohibit a denial of emergency care based on the patient's alien or citizenship status. Numerous states mandate the provision of emergency care services regardless of sex, race, ability to pay, or availability of insurance. These provisions are argu158

159 160 161


O n e court stated: We believe the law is well settled that a physician o r surgeon, upon undertaking an operation or other case, is under the duty, in t h e absence of an agreement limiting the service, of continuing his attention, after the first operation o r first treatment, s o long as the case requires attention. T h e obligation of continuing attention can b e terminated only by the discharge of the physician by the patient, or the withdrawal from the case by the physician after giving the patient reasonable notice so as to enable t h e patient to secure other medical attention. Id. at 9 0 2 . Id. See Richards & Rathbun, The Law of Patient's Rights in Texas, 4 4 T E X . B . J. 1059 (1981). See, e.g., Drake, Immigrants' Rights to Health Care, 2 0 CLEARINGHOUSE REV. 4 9 8 , 5 0 9 (1986). See, e.g., K A N . STAT. A N N . § 39-709(e) (Supp. 1990); V A . C O D E A N N . § 32.1-343 (Michie Supp. 1991). F o r a discussion of permanent residents' eligibility for state-funded programs, s e e , for example, Machado v . Department of Health and Rehab. Servs., 3 5 7 F. Supp. 890 (S.D. F l a . 1973). F o r a discussion of emergency care statutes generally, see Comment, To Treat or Not to Treat: A Hospital's Duty to Provide Emergency Care, 15 U . C . DAVIS L . REV. 1047 (1982). See also Dowell, Indigent Access to Hospital Emergency Room Services, 18 CLEARINGHOUSE REV. 4 8 3 (1984).

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Lack of Insurance

Patient Characteristics Specifically Protected Under State Emergency Care Laws




















Ability to Pay/ Economic Status


National Origin

Physical, Medical Preexisting Condition










X X X X X* X




X X X X X* X X X X X* X

*The statute does not absolutely ban discrimination on these grounds, but provides instead that such discrimination may not be arbitrary, capricious, or unreasonable.

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ably applicable to undocumented aliens who fall within these classifications and are denied care for one or more of those reasons. However, these characteristics and traits do not encompass alienage. An alien denied care on that basis would be forced to seek care elsewhere and then litigate the issue of coverage by the relevant statute. Most undocumented aliens would not pursue such litigation due to a fear of detection by the INS during the course of the proceedings. Some states require that hospitals provide emergency services to "any" applicant or patient applying for those services, but prohibit a denial of services on a limited number of grounds. Such language arguably establishes several differing levels of duty on the part of the provider, and may permit the refusal of care to those individuals not encompassed by the enumerated characteristics. For instance, Louisiana provides that its emergency room services are available to "all persons residing in the territorial area of the hospital," regardless of insurance. The statute bars discrimination on the basis of race, religion, or national ancestry, but qualifies the allowable level of discrimination based on age, sex, or physical condition and economic status. Alienage is not mentioned at all, arguably creating a third level of patient characteristics susceptible to some allowable level of discrimination. This discussion demonstrates that existing laws and program restrictions present formidable barriers to an undocumented alien seeking any medical care. Access to care is even more difficult when the alien is not faced with a life-threatening illness or injury, but seeks instead preventive treatment. An undocumented alien's ability to access the limited care available may be further frustrated by various aspects of the alien's personal situation. III. IMPEDIMENTS TO OBTAINING HEALTH CARE A. Patient Characteristics / . Acculturation and Cultural Beliefs An immigrant's reliance on Western medicine may be related to individual levels of acculturation and personal beliefs in alternative systems of care within a given culture. Individuals who are less acculturated may delay longer before consulting a physician because the kind of care required carries a low level of acceptability.163 Psychiatric care, in particular, may be especially anathema to individuals whose former governments used 163

Van der Stuyft, De Muynck, Schillemans, & Timmerman, Migration, Acculturation and Utilization of Primary Health Care, 29 Soc. Sci. MED. 53, 57 (1989). See also Council on Scientific Affairs, Hispanic Health in the United States, 265 J.A.M.A. 248 (1991) [hereinafter Hispanic Health]. But



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psychiatry as a means of social control and stigmatization.164 Additionally, immigrant families, whether documented or not, may be socially isolated from the mainstream ideas of the United States. Consequently, they may view illness, the role of the caregiver, and compliance quite differently than does the United States health care provider.165 Members of some communities may rely on traditional healing practices that are familiar, in addition to or instead of medical practices in the United States.166 The provider of care may be more effective and the pa-

see M a r k s , Solis, Richardson, Collins, Birba, & Hisserich, Health Behavior of Elderly Hispanic Women: Does Cultural Assimilation Make a Difference?, 77 A M . J. P U B . HEALTH 1315 (1987) (after controlling for age a n d education, n o consistent association w a s found between health behavior and language preference, country of birth, contact with homeland, o r attitudes towards children's friends). One's level of education also may affect an individual's decision to seek care. See Moatti, Gales, Julian, Durbec, Mattei, & Ayme, Socio-cultural Inequities in Access to Prenatal Diagnosis: The Role of Insurance Coverage and Regulatory Policies, 10 PRENATAL DIAGNOSIS 3 1 3 (1990); Niederhauser, Health Care of Immigrant Children: Incorporating Culture into Practice, 15 PEDIATRIC NURSING 5 6 9 , 573-74 (1989). See also Fandetti & Goldemeier, Social Workers as Culture Mediators in Health Care Settings, 13 HEALTH S O C . WORK 171 (1988); Heggenhougen & Shore, Cultural Components of Behavioural Epidemiology: Implications for Primary Health Care, 22 S o c . Sci. M E D . 1235 (1986). 164 Heggenhougen & Shore, supra note 1 6 3 , at 1241; Brodsky, Mental Health Attitudes and Practices of Soviet Jewish Immigrants, 13 HEALTH S O C . WORK 130 (1988). See also Hall, Providing Culturally Relevant Mental Health Services for Central American Immigrants, 39 HOSP. & C O M M . PSYCHIATRY 1139, 1140 (1988). F o r studies of immigrants' mental health, see Golding, Karno, & Rutter, Symptoms of Major Depression Among Mexican-Americans and Non-Hispanic Whites, 147 A M . J . PSYCHIATRY 861 (1990); K u o & Tsai, Social Networking, Hardiness and Immigrant's Mental Health, 2 7 J . HEALTH S O C . BEHAV. 133 (1986); Munroe-Blum, Boyle, Offord & Kates, Immigrant Children: Psychiatric Disorder, School Performance, and Service Utilization, 5 9 A M . J. ORTHOPSYCHIATRY 5 1 0 (1989); Vega, Kolody, Valle, & Hough, Depressive Symptoms and Their Correlates Among Immigrant Mexican Women in the United States, 2 2 S o c . S c i . M E D . 645 (1986); Weiss, O'Connell, & Siiter, Comparisons of Second-Generation Holocaust Survivors, Immigrants and Nonimmigrants on Measures of Mental Health, 5 0 J. PERSONALITY S O C . PSYCHOLOGY 828 (1986). See also Aldwin & Greenberger, Cultural Differences in the Predictors of Depression, 15 A M . J . CONTEMP. PSYCHOLOGY 7 8 9 (1987); H a r m o n , Rosner, & Wiederlight, The Mariel Refugee and the New York Criminal Court, 32 J. FORENSIC S C I . 7 2 5 (1987). Diagnosis of psychiatric disorders is particularly difficult when dealing with different cultures. See Robins, Cross-Cultural Differences in Psychiatric Disorder, 7 9 A M . J . P U B . HEALTH 1479 (1989). 165 Anderson, Ethnicity and Illness Experience: Ideological Structures and the Health Care Delivery System, 2 2 S o c . S c i . M E D . 1277, 1279-81 (1986); Champion, Austin, & Tzeng, Cross-Cultural Comparison of Images of Nurses and Physicians, 3 4 INT'L N U R S . REV. 4 3 (1987). 166 Nail & Spielberg, Social and Cultural Factors in the Responses of Mexican-Americans to Medical Treatment, 8 J. HEALTH S O C . BEHAV. 2 9 9 , 3 0 6 (1967); Pang, The Practice of Traditional Korean Medicine in Washington, D.C., 2 8 S o c . S c i . M E D . 8 7 5 , 882 (1989). See also Stone, Primary Health Care for Whom?: Village Perspectives from Nepal, 2 2 S o c . S c i . M E D . 2 9 3 (1986). There may b e concerns about the possibility of adverse drug interactions, particularly when the patient does not tell the physician about personal reliance o n folk remedies. Mayers, Use of Folk Medicines by Elderly Mexican-American Women, 19 J. DRUG ISSUES 2 8 3 , 292 (1989).

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tient more compliant when the provider is aware of these practices and their impact on the patient's perception of his or her illness.167 Too, legal advocates for clients seeking care may need to be aware of client behavior that may make it more difficult to locate or retain the services of a provider. Chinese clients may rely on specific diets to "build blood" or "flush out dirty blood."168 Clients from areas as diverse as Nepal,169 Mexico,170 and Vietnam171 may believe that an illness is due to an imbalance of "hot" and "cold" foods, referring not to their temperature, but rather to intrinsic qualities attributed to specific preparations. These imbalances may lead to maladies such as rheumatism,172 high fever,173 high blood pressure,174 abscesses,175 diarrhea,176 and gynecological maladies.177 The offending heat or cold may be withdrawn or extracted through the use of external applications,178 neutralized by internal remedies such as herbal teas,179 or expelled


Reliance on traditional medications also may subject an alien to criminal prosecution and subsequent deportation proceedings. For instance, this author is familiar with a case involving a lawfully admitted permanent resident alien (documented alien) originally from Laos. This elderly gentleman had legally used opium in his home country to relieve the pain caused by a serious, chronic health condition. H e continued this practice in the United States, where he w a s prosecuted for and convicted of possession of a controlled substance. The violation of narcotics laws provided the basis for a later charge of deportability. Creson, McKinley, & Evans, Folk Medicine in Mexican-American Sub-culture, 30 DISEASES NERV. SYSTEM 264, 266 (1969). See Johnston, Folk Beliefs and Ethnocultural Behavior in Pediatrics, 12 N U R S . CLINICS N . A M . 7 7 , 78 (1977).


Ludman, Newman, & Lynn, Blood-Building

Foods in Contemporary

Chinese Populations,

89 J.

Am. DIET. A . 1122 (1989). 169



Stapleton, Diarrhoeal Diseases: Perceptions and Practices in Nepal, 28 S o c . Sci. M E D . 593 (1989). Currier, The Hot-Cold Syndrome and Symbolic Balance in Mexican and Spanish-American Folk Medicine, 5 ETHNOLOGY 251 (1966). See also Foster, The Validating Role of Humoral Theory in Traditional Spanish-American Therapeutics, 15 A M . ETHNOLOGY 120 (1988). For a discussion of the sources of " h o t " or "cold," see Foster, How to Stay Well in Tzintzuntzan, 19 S o c . Sci. M E D . 523 (1984). Flaskerud & Soldevilla, Pilipino [sic] and Vietnamese Clients: Utilizing an Asian Mental Health Center, 2 4 J. PSYCHOSOC. N U R S . 3 2 , 33 (Aug. 1986).


Currier, supra note 170, at 2 5 4 . 173 Foster, supra note 170, at 125. 174 Id. at 126. 175 Id. at 127. 176 Currier, supra note 170, at 2 5 4 ; Stapleton, supra note 169. 177 Browner, Criteria for Selecting Herbal Remedies, 2 4 ETHNOLOGY 13 (1986). See Oladepo & Sridhar, Traditional Public Health Practices in Nigeria, 107 J. ROYAL SOC'Y HEALTH 1 8 1 , 182 (1987) (pregnant w o m e n prohibited from eating certain foods). 178 Foster, How to Get Well in Tzintzuntzan, 21 S o c . S c i . M E D . 8 0 7 , 812 (1985). 179 Id. See also Kay & Yoder, Hot and Cold in Women's Ethnotherapeutics: The American-Mexican West, 2 5 S o c . S c i . M E D . 3 4 7 , 352 (1987).

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by induced vomiting or sweating.180 Care may be administered by family members or by lay healers.181 Although the specifics may vary, clients from various backgrounds may believe that their illness stems from supernatural causes. Ailments attributable to such origins include fright182 and epilepsy.183 Such complaints actually may have biologic bases and require examination and diagnosis.184 Treatment from a physician in these and other situations may have to be recommended to the patient through a shaman or traditional healer in order to be accepted by the patient.185 Reliance on non-Western belief systems ultimately may affect the patient's willingness or ability to comply with a prescribed regimen. Chinese families may "forget" to assist a child with rehabilitative exercises because the child's comfort is deemed to take precedence over uncomfortable rehabilitative exercises.186 Others may view a "cure" as the responsibility of the health care provider, and outside the realm of family members.187 2. Language Language also may affect not only the ability of undocumented persons to access care, but also their rate of termination from treatment.


Foster, supra note 178. Edgerton, Karno, & Fernandez, Curanderismo in the Metropolis: The Diminished Role of Folk Psychiatry Among Los Angeles Mexican-Americans, 24 AM. J. PSYCHOTHERAPY 124 (1970); Martinez & Martin, Folk Diseases Among Urban Mexican-Americans: Etiology, Symptoms and Treatment, 196 J . A . M . A . 147 (1966). 182 Stapleton, supra note 169, at 597; Baca, Some Health Beliefs of the Spanish Speaking, 69 A M . J. N U R S . 2 1 7 2 , 2174-75 (1969); Nations & Rebhun, Angels with Wet Wings Won't Fly: Maternal Sentiment in Brazil and the Image of Neglect, 12 CULTURE, M E D . & PSYCHIATRY 141, 168-69 (1988): Signorini, Patterns of Fright: Multiple Concepts of Susto in a Nahua-Ladino Community of the Sierra de Puebla (Mexico), 21 ETHNOLOGY 313 (1982). The term susto is sometimes used to refer to "fright" by some Hispanic groups. (The verb asustar means " t o frighten.") Susto is characterized by restlessness during sleep, listlessness, loss of appetite, depression, and loss of strength. Rubel, The Epidemiology of a Folk Illness: Susto in Hispanic America, 3 ETHNOLOGY 268, 2 7 0 (1964). Susto may affect children and adults. Signorini, supra, at 313. The cure may be effected by a lay healer. Baca, supra, at 2174. 183 B a c a , supra note 1 8 2 , at 2 1 7 5 . See Folta & Deck, Rural Zimbabwean Shona Women: Illness Concepts and Behavior, 9 W E S T . J . N U R S . R E S . 3 0 1 , 307-09 (1987). 184 DeLaCancela, Guarnaccia, & Carillo, Psychological Distress Among Latinos: A Critical Analysis of Ataques de Nervios, 10 HUMANITY S O C . 431 (1986); Trotter, Folk Medicine in the Southwest: Myths and Medical Facts, 7 8 FOLK M E D . 167 (1985). See generally Hispanic Health, supra note 1 6 3 . 185 See Kraut, Healers and Strangers: Immigrant Attitudes Towards the Physician in America—A Relationship in Historical Perspective, 2 6 5 J . A . M . A . 1807, 1810 (1990). 186 Anderson, supra note 165, at 1280. 187 Id. at 1281.



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Those who are Spanish-speaking have been found to utilize health services less frequently and to encounter more barriers to obtaining health care.188 Communication between the patient and the care provider may be hindered by an inability to speak the same language. It also may be rendered difficult even when the same language is spoken, due to different levels of familiarity with the illness and the associated jargon.189 Subsequent patient conduct perceived as noncompliance by the caregiver actually may reflect a lack of adequate communication between the patient and the provider. 3. Economic Status The high cost of care and the low economic status of many undocumented aliens may be one of the two greatest barriers to care.190 Undocumented aliens often have difficulty accessing even low cost care due to their economic situations. Many may be poor and uninsured, even though employed.191 Some may be in physically demanding, low paying jobs with few benefits. The lack of health care benefits and income to treat acute health conditions ultimately may lead to a chronic health condition and a subsequent, further decline in income.192 Those employed on an hourly basis may find it financially and logistically difficult to travel to offices during the day, only to spend hours traveling and then having to wait their turn to be seen,193 due to double- and triple-booking practices, emergencies, and other situations.


Estrada, Trevino, & Ray, Health Care Utilization Barriers Among Mexican-Americans: Evidence from HHANES 1982-84, 80 A M . J. PUB. HEALTH 2 7 , 29 (Supp. 1990). See also Earnest, Access to Health Care: One Neurologist's Perspective, 4 8 ARCH. NEUROLOGY 4 7 6 , 477 (1991); Gant & Mondy, Immigrant Health Care: Are We Responsible or Not?, 82 T E X . M E D . 7 ( N o . 11 1986); Menken, Caring for the Underserved: Health Insurance Coverage Is Not Enough, 4 8 ARCH. N E U ROLOGY 472 (1991). But see Andersen, et a l . , supra note 1. 189 Quesada, Language and Communication Barriers for Health Delivery to a Minority Group, 10 S o c . Sci. M E D . 3 2 3 , 325 (1976). See also Kerr, Access to Emergency Departments: A Survey of HMO Policies, 18 ANNALS EMERGENCY M E D . 274 (1989); Colman & Robboy, The Social Construction of a Medical Emergency, 1 TOPICS IN EMERGENCY M E D . 61 (1980). 190 See Hearing Before the Subcomm. on Health and the Environment of the House Comm. on Energy and Commerce 5 (testimony of Pete Duarte, Executive Director, Centra de Salud Familiar La F e , Inc., El Paso, Texas). For a discussion of the economic status of Hispanics in the United States, see CENTER ON BUDGET AND POLICY PRIORITIES, SHORTCHANGED: RECENT DEVELOPMENTS IN HISPANIC POVERTY, INCOME AND EMPLOYMENT (1985). 191

Hubbell, Waitzkin, & Rodriguez, Functional Status and Financial Barriers to Medicare Care Among the Poor, 83 S. M E D . J. 5 4 8 , 549 (1990). 192 Wolinsky, Aguirre, Fann, Keith, Arnold, Niederhauer, & Dietrich, Ethnic Differences in the Demand for Physician and Hospital Utilization Among Older Adults in Major American Cities: Conspicuous Evidence of Considerable Inequalities, 67 MILBANK Q. 412, 4 4 0 (1989). 193 Dutton, Financial, Organizational and Professional Factors Affecting Health Care Utilization, 23 Soc. Sci. M E D . 7 2 1 , 722 (1986).



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4. Immigration Status The undocumented person's lack of legal status and the related fear of detection and apprehension by the immigration authorities may well be the greatest obstacle to the search for and/or the receipt of medical attention apart from emergency situations.194 Such fears are not misplaced. The reporting of undocumented aliens to the INS by health care providers may occur occasionally, in a random manner. However, it also may be systematic. For instance, the director of health in Hawaii is charged with the duty of cooperating with the United States government to effect the deportation of "all alien public charges" admitted to or hospitalized at the state hospital.195 Undocumented individuals who are ill and poor may not have the wherewithal to locate and retain a legal advocate to defend against deportation, and may consequently be ordered deported despite the availability of an immigration remedy that would permit them to remain in the United States legally.196 Individuals may fear not only this ultimate deportation, but a lack of adequate medical care in the INS detention facility while awaiting a deportation hearing before an immigration judge.197


W. C O R N E L I U S , L . C H A V E Z , & J. C A S T R O , M E X I C A N IMMIGRANTS A N D SOUTHERN C A L I F O R N I A : A S U M M A R Y O F C U R R E N T K N O W L E D G E 52 (1982); J. N A L V E N , IMPACTS AND U N D O C U M E N T E D P E R S O N S : T H E Q U E S T FOR U S E A B L E DATA IN S A N D I E G O C O U N T Y 1974-1986, at 3 1 (1986). C o r n e l i u s ,

Future of Mexican


in California:

A New Perspective


for Public Policy, 6 WORKING

PAPERS IN U . S . - M E X I C A N STUDIES 3 9 (1981). 195

HAWAII REV. STAT. § 336-1 (1985). It could b e argued that this practice constitutes a breach of the physician's ethical responsibilities t o a patient when removal from the institution results in a deterioration of the patient's health status. 196 A s an example, suspension of deportation is potentially available to respondents in deportation proceedings if they can demonstrate good moral character, seven years' continuous physical presence in t h e United States, a n d extreme hardship t o themselves or t o a U . S . citizen o r lawfully admitted permanent resident spouse, child, o r parent as a result of their deportation. Immigration and Nationality A c t , 8 U . S . C . § 1254(a) (1988 & Supp. II 1990). A n individual's health m a y b e relevant to a finding of extreme hardship. Mejia-Carrillo v. INS, 656 F.2d 5 2 0 (9th Cir. 1981); In re Anderson, 16 I & N D e c . 596, 5 9 7 (BIA 1978). 197 Persons detained by the INS may be treated and cared for by the Public Health Service (PHS). 42 U.S.C. § 249(a) (1988); 42 C.F.R. § 34.13 (1991). Under certain circumstances, detained individuals may receive care at other public or private medical facilities at the expense of the PHS. 42 U.S.C. § 249(c) (1988). The United States government has acknowledged its responsibility for the care of suspected aliens detained or taken into custody by the Border Patrol. See City of El C e n t r o v. United States, 922 F.2d 816, 822 (Fed. Cir. 1990), cert, denied, 111 S. Ct. 2851 (1991). Despite these provisions, detained aliens may not receive the care that appears medically required. This author has represented a young epileptic child who was detained and taken into custody, without her medication, by the Border Patrol in San Diego County. Despite numerous telephone calls to Border Patrol offices regarding the urgency of her situation, more than 24 hours passed before the Border Patrol could locate her at a specific detention facility. She was released

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Other individuals may fear the immigration consequences of receiving publicly-funded medical benefits. All aliens applying for permanent resident status must demonstrate that they will not become public charges. A failure to make this showing may result in their exclusion from the United States.198 Although a prospective test is used to determine an alien's likelihood of becoming a public charge,199 the past receipt of public benefits may be an important factor in this calculation.200 Additionally, an alien may be deported for having become a public charge within five years after entry, from causes not arising after entry.201 Each entry marks the commencement of a new five-year period. Few aliens realize that the INS must interpret "public charge" for the purpose of deportation quite narrowly,202 and that the public charge provision is rarely a basis for the deportation of an alien from the United States.203 5. Patient Dumping Studies of patient transfers prior to the effective date of COBRA (August 1, 1986) found that many patients were inappropriately transferred—"dumped."204 This practice was often motivated by economic concerns stemming from the patient's inability to pay for the necessary pursuant to court order. She had not been able to take her prescribed medication for two days. In July of 1991, this author was contacted by the legal representative of a detained HIV-seropositive individual who was applying for political asylum. The applicant had been unable to obtain his prescribed A Z T during the course of his detention, despite the fact that he had communicated his health status to the detention officers, and was economically unable to pay the required bond to effect his release. 198

Immigration and Nationality Act, 8 U . S . C . § 1182(a)(4) (Supp. II 1990). An alien may be excluded from the U.S. for any of nine broadly enumerated grounds. Id. § 1182 (1988 & Supp. II 1990). The exclusion grounds apply whenever an alien is seeking to effect an entry. Id. § 1101(a)(13) (1988). Once an alien is physically in the United States, he or she may be deported under one or more of five broadly worded provisions. Id. § 1251 (1988 & Supp. II 1990). One of the grounds of deportability is excludability at the time of the original entry, for any of the nine grounds of exclusion. Id. § 1251(a)(l).


See generally IMMIGRATION LAW AND DEFENSE, supra note 11, § 5.2 See, e.g., In re Vindman, 16 I&N Dec. 131 (Reg. C o m m ' r 1977); In re Perez, 15 I&N Dec. 136 (BIA 1974). Immigration and Nationality Act, 8 U . S . C . § 1251(a)(5) (1988 & Supp. II 1990). For the distinction between exclusion and deportation, see supra note 198. There is a three-pronged test to determine whether an alien has become a public charge, within the meaning of the deportation statute: (1) the charge for the services provided to the alien must have been imposed under the appropriate law; (2) the alien must have received a demand for payment; and, (3) the alien must have failed to pay these charges. In re B, 3 I&N Dec. 323 (BIA 1948); In re M , 2 I&N Dec. 694 (BIA 1946). Only nine aliens were deported during the five year period 1981-1986 for having become public





charges. 1986 204




Rosenbaum, Hughes, & Johnson, Maternal and Child Health Services for Medically Indigent Children and Pregnant Women, 26 M E D . CARE 315 (1988). The National Association of Public Hospitals examined 1,066 patient transfers to 26 urban public hospitals in 12 states and the District of Columbia that occurred during a two-week period in 1985. The study found that almost 7 5 % of the



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services,205 the patient's lack of a personal physician, and racial discrimination.206 Dumping practices continue, despite the potential penalties that can be imposed on an institution engaging in such practices.207 It is unclear to what extent dumping practices have affected access to care for undocumented aliens, as distinct from minorities and the uninsured. It is clear, however, that many undocumented individuals are uninsured and that many are members of racial or ethnic minority groups. To that extent, they may be at a higher risk of being affected by dumping practices.208 B. Case Study: Access to Care for HIV-Positive Undocumented Patients in San Diego County 1. Background Infection by the human immunodeficiency virus (HIV) is characterized by a breakdown of the body's immune system. Initially, the infection may be asymptomatic, or may later present with night sweats, diarrhea, and opportunistic infections.209 The infection may progress to AIDS, a term used to denote the occurrence of specific symptoms resulting from HIV infection.210 Thus, an individual may be infected with HIV, but may not have AIDS. The infection is transmitted as the result of an exchange of blood or other body fluids.2" The primary modes of transmission include sexual intercourse, the sharing of needles and syringes for intravenous

transfer patients required emergency care when they arrived at the public hospitals. Fifteen percent of the transfers were said to qualify as dumping. 15% of Transfers Seen as "Dumping," 60 HOSPITALS 146 (Oct. 1986) [hereinafter Transfers]. 205



210 211

Transfers, supra note 204. See Relman, Economic Considerations in Emergency Care, 312 N . E N G . J. M E D . 372 (1985); Wrenn, No Insurance, No Admission, 312 N. E N G . J. M E D . 373 (1985). Himmelstein, Woolhandler, Harnly, Bader, Silber, Backer, & Jones, Patient Transfers: Medical Practice as Social Triage, 74 A M . J. P U B . HEALTH 494 (1984). See also Dallek, supra note 2 1 , at 408-09. Brider, Too Poor to Pay: The Scandal of Patient Dumping, 87 A M . J. N U R S . 1447 (1987); Kellermann & Hackman, Patient "Dumping "Post-COBRA, 80 A M . J. PUB. HEALTH 864 (1990); Strobos, Tightening the Screw: Statutory and Legal Supervision of Interhospital Patient Transfers, 20 ANNALS EMERGENCY M E D . 302 (1991). For a discussion of the possible penalties, see Southard, COBRA Legislation: Complying with ED Provisions, 15 J. EMERGENCY N U R S . 23 (1989); Enfield & Sklar, Patient Dumping in the Hospital Emergency Department: Renewed Interest in an Old Problem, 13 A M . J. L. & M E D . 561 (1988). Sec Dallek, supra note 2 1 ; Relman, supra note 205; Wrenn, supra note 205. See also Schlesinger, Paying the Price: Medical Care, Minorities, and the Newly Competitive Health Care System, 65 MILBANK Q. 270 (Supp. 2 1987). 209 Surgeon General's Report on Acquired Immune Deficiency Syndrome, 256 J . A . M . A . 2784 (1986). Id. Id. at 2785.

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injections, the transplacental passing of the virus from an infected mother to the fetus, and blood transfusions.212 The Centers for Disease Control (CDC) received reports of 50,830 AIDS patients for the period June 1, 1981 through January 18, 1988. Analysis of those cases by race and ethnicity revealed that the cumulative incidence of AIDS in blacks and Hispanics in the United States was almost three times that in whites. The risk of AIDS among homosexuals and bisexuals also was higher among blacks and Hispanics.213 Black and Hispanic children had a greater risk of AIDS associated with blood transfusion than did white children. Additionally, blacks and Hispanics were more at risk for AIDS due to unknown factors than were whites.214 Another study found that, despite the elevated risk of AIDS in United States Hispanics, the risk in persons of Mexican ethnicity was similar overall to that of whites.215 A number of writers have suggested that the higher risk of AIDS for blacks and Hispanics, due to unspecified means of transmission, may reflect the reluctance of blacks and Hispanics to acknowledge openly their homosexual or bisexual activity or their intravenous use of drugs.216 Others have speculated that the cultural practice of receiving medicinal injections from friends and neighbors and the concomitant use of shared needles may






Melbye, The Natural History of Human T Lymphotropic Virus-III Infection: The Cause of AIDS, 292 BRIT. M E D . J. 5 (1986). See also Friedland & Klein, Transmission of the Human Immunodeficiency Virus, 317 N. E N G . J. M E D . 1125 (1987). Selik, Castro, & Pappaioanou, Racial/Ethnic Differences in the Risk of AIDS in the United States, 78 A M . J. P U B . HEALTH 1539 (1988). Id. at 1540. For an in-depth examination of AIDS among blacks and Hispanics, see Friedman, Sotheran, Abdul-Quader, Primm, Jarlais, Kleinman, Mauge, Goldsmith, El-Sadr, & Maslansky, The AIDS Epidemic Among Blacks and Hispanics, 65 MILBANK Q. 455 (Supp. 2 1987). Selik, Castro, Pappaioanou, & Buehler, Birthplace and the Risk of AIDS Among Hispanics in the United States, 79 A M . J. P U B . HEALTH 836, 837 (1989). The authors of this study concluded that their estimates of the cumulative incidence of AIDS in persons born in Mexico, Cuba, and other Latin American countries may have been too high due to the undercounting of undocumented Hispanic aliens in the 1980 census. Id. at 838. It should be remembered, however, that the term AIDS represents only one point on the spectrum of HIV infection. Consequently, this interpretation may not be transferrable to a discussion of HIV, which is not reportable to many state health departments and the Centers for Disease Control (CDC). For a discussion of disease reporting mechanisms generally, see CONTROL OF COMMUNICABLE DISEASES IN M A N (A. Benenson ed. 15th ed. 1990). Selik, Castro, & Papaioanou, supra note 2 1 3 , at 1543; Marin, AIDS Prevention Among Hispanics: Needs, Risk Behaviors, and Cultural Values, 104 PUB. HEALTH REPS. 4 1 1 , 412 (1989). See also Peterson & Marin, Issues in the Prevention of AIDS Among Black and Hispanic Men, 43 A M . PSYCHOLOGIST 8 7 1 , 873 (1988). For discussions of homosexuality and bisexuality in the Mexican culture, see Carrier, Mexican Male Bisexuality, in BISEXUALITIES: THEORY AND RESEARCH 75 (F. Klein & T. Wolf eds. 1985); Carrier, Family Attitudes and Mexican Male Homosexuality, 5 U R B . LIFE 359 (1976). For an examination of the sexual transmission of AIDS in Mexico, see Carrier, Sexual Behavior and Spread of AIDS in Mexico, 10 M E D . ANTHROPOLOGY 129 (1989).

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be somewhat responsible for the transmission of HIV among Hispanics.217 Efforts to reduce transmission among Hispanics may be difficult due to differences in languages, unawareness of the group's media preferences,218 and a lower level of acculturation.219 The cost of medical care for the treatment of HIV infection is high. Although early intervention may be recommended, the costs of such care may be prohibitive for many infected patients. One researcher has placed the total 1991 cost of early intervention for individuals in New York City at $348 million to $1.4 billion. In San Francisco, the cost may range from $43 million to $170 million.220 Hospitalizations may be long and expensive. A study of 1984 AIDS discharges from short-stay hospitals found that AIDS accounted for 510,000 days of hospital care, and that the average hospitalization lasted 15.6 days.221 One forecast predicted that the cumulative lifetime medical care costs of treating all people diagnosed with AIDS during a given year will reach $5.3 billion in 1991, $6.5 billion in 1992, and $7.8 billion in 1993.222 These figures translate to a lifetime medical care cost per person of between $40,000 and $75,000 from the time of diagnosis.223 Reliance on publicly funded medical care programs is increasing, while the share of AIDS-related medical care costs borne by private insurers is declining.224





(1987)). See Loue & Oppenheim, Self-Administration of Medications with Shared Needles as a Potential Risk Factor of HIV Transmission Among Undocumented and Recently Immigrated Individuals from Mexico, Abstract presented at the 4th National AIDS Update Conference (San Francisco, May 19-21, 1991) (copy available from author). Hopkins, AIDS in Minority Populations in the United States, 102 PUB. HEALTH REPS. 677, 679 (1987); Hu, Keller, & Fleming, Communicating AIDS Information to Hispanics: The Importance of Language and Media Preference, 5 A M . J. PREVENTIVE M E D . 196 (1989). Marin & Marin, Effects of Acculturation on Knowledge of AIDS and HIV Among Hispanics, 12 HISPANIC J. BEHAVIORAL SCI. 110 (1990).




Arno, Shenson, Siegel, Franks, & Lee, Economic and Policy Implications of Early Intervention in HIV Disease, 262 J . A . M . A . 1493, 1496 (1989) (Table 4 ) . Graves & Moien, Hospitalizations for AIDS, United States, 1984-85, 77 A M . J . P U B . HEALTH 729 (1987). Hellinger, Updated Forecasts of the Costs of Medical Care for Persons with AIDS, 1989-1993, 105 P U B . H E A L T H R E P S . 1 (1990).



Treatment Costs for HIV Disease Projected to Top $10 Billion in 1994, 6 AIDS POL'Y & L . 3 (June 26, 1991). Green & Arno, The "Medicaidization" of AIDS: Trends in the Financing of HIV-Related Medical Care, 264 J . A . M . A . 1261 (1990). F o r a breakdown of the nature of Medicaid costs, see Solomon, Hogan, Bouknight, & Solomon, Analysis of Michigan Medicaid Costs to Treat HIV Infection, 104 P U B . HEALTH REPS. 4 1 6 (1989). F o r a discussion of insurance industry practices that may partly explain this decline in share of costs, see Schatz, The AIDS Insurance Crisis: Underwriting or Overreaching?, 100 HARV. L . REV. 1782 (1987).



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2. HIV and Undocumented Aliens in San Diego County Undocumented individuals may learn of their serostatus in a number of ways. They may decide to be tested, oftentimes at alternative test sites, where they can remain anonymous.225 Alternatively, awareness of one's serostatus may result from the appearance of symptoms. Many undocumented aliens may obtain HIV antibody testing as part of the medical examination requisite to an application for lawful permanent resident status in the United States. A positive antibody test may well mean the denial of any lawful immigration status and the prolongation of one's presence in undocumented status.226 It is unknown how many HIV-positive undocumented individuals are currently present in San Diego County, as neither HIV status nor immigration status is reportable to the public health department. What data is available indicates that San Diego County recorded a total of 3,078 AIDS cases through March of 1992, of which 2,037 have died.227 225

California maintains Alternative Test Sites, where an individual can receive anonymous HIV testing. This antibody test is provided at no cost to the individual. The results of the antibody test are not reportable to either the state or local health departments in a manner by which the individual can be identified. C A L . HEALTH & SAFETY C O D E § 1632 (West 1990).


Prior to June 1, 1991, the immigration laws excluded individuals who were infected with a dangerous, contagious disease. Immigration and Nationality Act, 8 U . S . C . § 1182(a)(6) (1952). HIV was classified as a dangerous, contagious disease by the Supplemental Appropriations Act of 1987. Pub. L. No. 100-71, § 518, 101 Stat. 3 9 1 , 475 (1987). The INS began requiring HIV antibody tests as part of the medical examination for permanent residence on December 1, 1987. 52 Fed. Reg. 32540 (1987) (codified at 42 C.F.R. § 34.2(b) (1991)). Waivers of HIV status for those intending to remain permanently in the U . S . were available only to refugees, applicants for legalization, and special agricultural workers. Immigration and Nationality Act, 8 U . S . C . §§ 1255a(d)(2)(B)(i), 1160(c)(2)(B)(i) (1988 & Supp. II 1990); Cable from James A. Puleo, INS Assistant Commissioner for Examinations, to INS Regional Offices (Mar. 2, 1988), reprinted in 65 INTERPRETER RELEASES 239 (1988). The 1990 amendments to the Immigration and Nationality Act deleted the language relating to dangerous, contagious diseases and replaced it with a provision excluding individuals afflicted with " a communicable disease of public health significance." Immigration and Nationality Act, 8 U . S . C . § 1182(a)(l)(A)(i) (Supp. II 1990). The first proposed regulations promulgated pursuant to this provision did not include HIV as a communicable disease of public health significance. 56 Fed. Reg. 2484 (1991). Interim regulations issued on May 3 1 , 1991 reinstated HIV as a basis of exclusion. Id. at 25000. Unlike the predecessor statute, these statutory amendments do provide for the possibility of a waiver of HIV for those applicants for permanent residence who have specified U . S . citizen or lawfully admitted permanent resident relatives in the U . S . Immigration and Nationality Act, 8 U . S . C . § 1182(g)(l) (1988 & Supp. II 1990). For an analysis and critique of the requirements of a medical examination, see Comment, Medical Examination of Aliens: A Policy with Ailments of Its Own?, 12 U . A R K . LITTLE ROCK L.J. 739 (1989-90). For a discussion of the bar to immigration for HIV-positive applicants, see Note, Prevention at Our Borders?: Testing Immigrants for AIDS, 12 SUFFOLK TRANSNATX L.J. 331 (1989); Comment, AIDS and Immigration: The United States Attempts to Deport a Disease, 20 U . MIAMI INTER-AM. REV. 131 (1988).



O F AIDS MONTHLY SURVEILLANCE REPORT (Mar. 3 1 , 1992) (available from San Diego County Task Force on AIDS).

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A recent report of 54 undocumented and recently immigrated HIVpositive individuals who requested HIV-related services from various nonprofit organizations between July 1 and December 31, 1990 found that the majority of these individuals had contracted HIV infection in the United States, primarily through homosexual activity. The vast majority of these individuals had arrived in the United States from Mexico.228 Nineteen percent of the 37 individuals for whom complete data was available reported that they had private medical insurance. However, 14% had required hospitalization and 43 % had sought outpatient care at community clinics.229 One local hospital reported that 76 of its 1,872 HIV-infected patients followed from July 1, 1986 to December 31, 1990 were Mexican citizens. It is unclear how many of these 76 individuals were undocumented. All but two of these patients had their health care financed through Medicaid services, known as Medi-Cal in California.230 By all accounts, access to care for this population appears to be problematic. Those who are most fortunate can obtain both emergency and nonemergency care because their care is financed through employersponsored group insurance plans. Some of these insured individuals may have become too ill to work, but have been able to continue their health insurance coverage through payment of the entire premium amount through the employer that sponsored the plan, plus a two percent administration fee.231 These premiums may be quite costly, however, and individuals who are too ill to resume work may find themselves unable to continue payment, despite grace periods232 and provisions for monthly payments.233 As a result of the Ryan White Comprehensive AIDS Resources Emergency Act of 1990,234 funds became available beginning February 1, 1991 in San Diego County for direct patient care of HIV-infected individuals at various community clinics and certain inpatient case management services. Although residence is not a criteria for patient eligibility for coverage, the patient must have a T-cell count greater than 500 to qualify for coverage of


Loue & Oppenheim, supra note 2 1 7 . Loue & Oppenheim, Immigration, HIV Seropositivity, and the Need for Health Care, Abstract presented at the 119th Annual Meeting of the American Public Health Association (Atlanta, Nov. 10-14, 1991) (copy available from author). 230 Confidential communication from researcher at major medical facility in San Diego County (Aug. 16, 1991). 231 Individuals may elect to continue their health coverage if they were "covered employees" at the time of a qualifying event, such as a reduction in hours. Consolidated Omnibus Budget Reconciliation Act of 1985, 29 U.S.C. §§ 1161-1168 (1988 & Supp. I 1989). 232 Id. §§ 1162(2)(C), 1162(3)(B) (1988). 233 Id. § 1162(3)(B). 234 Pub. L . N o . 101-381, 104 Stat. 576 (1990).

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the medical services.235 Consequently, individuals whose disease may have progressed relatively further or who require inpatient medical attention are ineligible for coverage of their costs under this program. Those without private insurance or coverage through the Ryan White funds must pay for their care out-of-pocket or rely on services provided under the emergency Medi-Cal provisions. Unlike many states whose programs cover only emergency medical conditions, California law provides for coverage of three types of emergency medical conditions, regardless of citizen status: (1) the treatment of emergency medical conditions, within the statutory definition; (2) the continuation of medically necessary indigent care; and, (3) other follow-up care, which may not include life-long chronic care.236 Because these services are available to all individuals who are otherwise eligible for Medi-Cal, verification of immigration status is unnecessary. It would appear that, as a result of these laws, the undocumented HIV-positive individual in California, and especially San Diego County, has relatively good access to publicly funded medical care compared to counterparts who reside in other states. Yet, access is by no means easy. Requested care under Medi-Cal must fall within one or more of the three categories enumerated above. "Medically necessary indigent care" is undefined by statute. Case law advises that a bone marrow transplant for a leukemia patient is "medically necessary indigent care," and that such treatment must, therefore, be provided to an undocumented individual.237 "Follow-up care" may be difficult to distinguish from lifelong chronic care, which is not covered. Despite the ability of all otherwise eligible individuals to qualify for these restricted scope Medi-Cal benefits, the Department of Health Services (DHS) had been requiring aliens to provide extensive documentation with respect to their immigration status and that of their family members. The court in Crespin v. Kizer™ enjoined DHS from continuing these practices. However, DHS' temporary reliance on this practice may have been sufficient to discourage eligible undocumented individuals from seeking medical care or Medi-Cal benefits to pay for that care. Undocumented aliens living with HIV infection also are subject to the same problems that confront many HIV-infected patients, and particularly,


Communication with Jeffrey Wynne, Office of AIDS Coordination, San Diego County Department of Public Health (Jan. 1992). For an explanation of T-cells and their function, see I. ROITT, J.


See S.B. 175, 1988 Cal. Stat. 1441. Dominguez v. Superior Court, 226 Cal. App. 3d 524, 276 Cal. Rptr. 564 (1990). 226 Cal. App. 3d 498, 276 Cal. Rptr. 571 (1990).

BROSTOFF, & D. MALE, IMMUNOLOGY 2.2-2.4 (1985). 237 238

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those who are homosexual. Both nurses239 and physicians240 have expressed fear241 of contagion from treating HIV-infected patients. Value judgments may compound this impact on the physician-patient relationship. One study found that physicians are less willing to interact with an AIDS patient than a leukemia patient, even in casual conversation.242 The same study found that many physicians consider AIDS patients, in comparison with leukemia patients, to be more responsible for their illness, more deserving of what has happened, and less deserving of sympathy and understanding.243 A survey of the 2,364 members of the San Diego County Medical Society found that nearly one quarter of the 1,009 responding physicians demonstrated strongly negative attitudes towards homosexuals.244 A high level of discomfort with treating homosexuals has been found to be associated with a lower level of competency in the provision of their care.245 Some providers also may feel uncomfortable treating HIV-infected patients because the providers know that, at least currently, their HIV-infected patients will die, and the provider does not want to face death and grief.246 The AMA Council on Ethical and Judicial Affairs has stated that "AIDS victims and those who are seropositive should not be treated unfairly or suffer from discrimination."247 Unlike many jurisdictions, the City of San 239




243 244




Blumenfield, Smith, Milazzo, Seropian, & Wormser, Survey of Attitudes of Nurses Working with AIDS Patients, 9 G E N . HOSP. PSYCHIATRY 58 (1987). Loewy, AIDS and the Physician's Fear of Contagion, 89 CHEST 325 (1986); Searle, Knowledge, Attitudes, and Behaviour of Health Professionals in Relation to AIDS, 1 LANCET 26 (1987); Richardson, Lochner, McGuigan, & Levine, Physician Attitudes and Experience Regarding the Care of Patients with Acquired Immunodeficiency Syndrome (AIDS) and Related Disorders (ARC), 25 M E D . CARE 675 (1987). See generally Thompson, Dealing with AIDS and Fear: Would You Accept Cookies from an AIDS Patient?, 80 S. M E D . J. 228 (1987). Fear is " a sensation or a feeling of anxiety caused by a realization, perception or expectation of impotency in the face of perceived or expected danger or evil. It subsumes such qualities as dread and awe and . . . other emotive and aesthetic elements enter into it." Loewy, Duties, Fears and Physicians, 22 S o c . Sci. M E D . 1363, 1363 (1986). For an historical perspective of epidemics, physicians' fears, and physician conduct in the face of those fears, see Amundsen, Medical Deontology and Pestilential Disease in the Late Middle Ages, 32 J. HIST. M E D . 403 (1977); Walsh, Refutation of the Charges of Cowardice Made Against Galen, III ANNALS M E D . HIST. (n.s.) 195 (1931). Kelly, Lawrence, Smith, Hood, & Cook, Stigmatization of AIDS Patients by Physicians, 77 A M . J. P U B . HEALTH 789, 790 (1987). Id. at 7 9 1 . Mathews, Booth, Turner, & Kessler, Physicians' Attitudes Toward Homosexuality—Survey of a California County Medical Society, 144 W.J. M E D . 106 (1986). See also Steinbrook, Lo, Tirpack, Dilley, & Volberding, Ethical Dilemmas in Caring for Patients with the Acquired Immunodeficiency Syndrome, 103 ANNALS INTERNAL M E D . 787, 789 (1985). Lewis, Freeman, & Corey, AIDS-Related Competence of California's Primary Care Physicians, 77 A M . J. P U B . HEALTH 795 (1987). See Artiss & Levine, Doctor-Patient Relation in Severe Illness, 288 N E W E N G . J. M E D . 1210 (1973); Kuntz, "I Didn't Think His Death Would Hit Me So Hard," 47 RN 30 (Feb. 1984). Council on Ethical and Judicial Affairs, Ethical Issues Involved in the Growing AIDS Crisis, 259

J.A.M.A. 1360, 1361 (1988).

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Diego248 and the County of San Diego249 each have enacted legislation that prohibits discrimination against those who are HIV-positive or who are thought to be HIV-positive. These provisions may provide protections in addition to those applicable under state or federal law.250 These mandates realistically offer neither protection nor solace to most undocumented aliens who are denied care. With litigation comes the fear of publicity and the consequent attentions of the INS. Some individuals also may fear that the prospective defendant will notify the INS of the individual's undocumented presence, so that the individual will be deported and the issue of discrimination rendered moot.251 Still others may feel that they will die soon, and that it is ultimately easier to seek care elsewhere than to expend energy on a lawsuit that may require substantial energies and monies to pursue. IV. REMEDIES FOR UNDOCUMENTED ALIENS DENIED HEALTH CARE A. Private Lawsuit 1. Hill-Burton Act The Act does not provide for a private civil remedy as a means of enforcing the provisions requiring the health care facility to provide a reasonable volume of hospital services to persons who are unable to pay. However, authorization to maintain a private cause of action has been implied.252 Enforcement of that obligation may be pursued affirmatively to compel the 248

S A N D I E G O , C A L . , MUNICIPAL C O D E §§ 5 2 . 9 5 0 0 - 5 2 . 9 6 1 5 (1988).


S A N D I E G O COUNTY, C A L . ORDINANCES ch. 12, § 3 2 . 1 2 0 1 - 3 2 . 1 2 1 3 (1988).


Two California decisions support the proposition that a medical professional's private office may have a duty of nondiscrimination under applicable state law. Leach v. Drummond Med. Group, 144 Cal. A p p . 3d 362, 192 Cal. Rptr. 6 5 0 (1983) (medical group practice subject to state civil rights law); Washington v. Blampin, 226 Cal. App. 2d 604, 38 Cal. Rptr. 235 (1964) (physician's office subject to state civil rights law). F o r an extensive discussion of potential remedies for discrimination in the provision of medical care due to H I V status, see Barnes, Discrimination in Places of Public Accommodation: Access to Health Care, Education, and Other Services, in AIDS PRACTICE M A N U A L : A LEGAL AND EDUCATIONAL G U I D E § 11 (P. Albert, R. Eisenberg, D . Hansell, & J.



Marcus eds. 3d ed. 1991). One client advised the author in May of 1991 that he had arranged an appointment with a physician at a local clinic. When the client told the physician that he w a s HIV-infected, the physician bluntly told him, " I don't treat AIDS patients," and promptly terminated the consultation. T h e client was informed of his legal options, but declined each of them. H e expressed the fear that someone at the clinic might advise the INS of his presence and whereabouts, as the clinic had recorded this information as part of his record. See Cook, 319 F. Supp. at 606; Saine v . Hospital Auth., 502 F.2d 1033 (5th Cir. 1974); Organized Migrants in Community Action, 325 F. Supp. at 2 7 1 ; Hospital Center v . Cook, 177 N.J. Super. 2 8 9 , 426 A . 2 d 526 (Super. C t . App. Div. 1981).

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provision of services, either on an individual basis or as a class action.253 The hospital's obligation to provide these services also may be asserted as an affirmative defense against an action by the hospital to recover an unpaid bill.254 Practically, it would be difficult for an individual undocumented alien to pursue such an action. The affirmative undertaking of a lawsuit may raise fears of INS action at the commencement of the suit or during its pendency, whether as the result of publicity or of unfriendly phone calls to the INS advising the agency of the individual's presence. The cost of litigation also may foreclose the possibility of a private lawsuit. An individual asserting the Hill-Burton uncompensated care provision as a defense is unlikely to have sufficient funds with which to retain counsel. Too, undocumented aliens are often unable to utilize otherwise available free legal services as the result of the Legal Services Corporation bar against the provision of services to undocumented persons by its funded programs.255 In an affirmative action, participation as an unnamed member of a class may reduce an individual's fears about the potential immigration problems, as well as the financial burden of pursuing a remedy. 2. Medicaid A private cause of action in state court may lie following the denial of specified emergency coverage to an undocumented alien. Although Medicaid is a federal program, it is administered by the state. Consequently, states may have established differing procedures by which to challenge a denial of coverage. California's procedure, as described below, is one example of how an administrative claim may be perfected and pursued as a private lawsuit. An applicant who is denied benefits must receive a written Notice of Action from the Department of Social Services (DSS). The notice must state the nature and date of the action taken and must advise the applicant of any applicable regulations and appeal rights. The Notice of Action must usually be sent to the applicant at least 10 days prior to the date of the proposed action.256 A fair hearing to review the planned action must be requested by tele-



Euresti, 458 F.2d at 1119; Gordon v. Forsyth County Hosp. Auth., 409 F. Supp. 708 ( M . D . N . C . ) , aff'd in part, vacated in part, 544 F.2d 748 (4th Cir. 1976). Hospital Center, 426 A.2d at 526; Cooper Medical Center v. Boyd, 170 N . J . Super. 5 3 , 430 A.2d 261 (Super. Ct. App. Div. 1981). But see Falmouth Hosp. v. Lopes, 376 Mass. 580, 382 N . E . 2 d 1042 (1978); St. Peter's Hosp. v. Hall, 422 N.Y.S.2d 628, 102 Misc. 2d 73 (1979).


45 C.F.R. §§ 1626.1-1626.6 (1991).


M E D I - C A L G U I D E (CCH)


at 1013


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phone or by mail within 90 days of the date of the mailing of the notice.257 The individual must provide some indication as to the basis of the appeal.258 A minimum of 10 days' notice of the hearing time and place will be provided to the individual.259 The hearings are conducted by administrative law judges.260 An individual has the right to be represented at the hearing, to review his or her file prior to the hearing, and to present testimony and documents.261 A DSS worker will present the state's case at the hearing where the issue is one of eligibility, such as eligibility for the emergency care coverage.262 A decision is mailed to the individual after the conclusion of the hearing.263 An adverse decision may be reviewed at a rehearing if the claimant requests a rehearing from the Director of DSS within 30 days of receipt of the hearing decision.264 Alternatively, the claimant may appeal the adverse determination to superior court within one year of the date of the hearing decision.265 A private lawsuit challenging the denial of emergency care is, again, problematic for the undocumented individual. The ability of an undocumented alien to obtain legal representation in California may be increased somewhat as the result of the availability of public funding for legal service activities. These funds may be expended on behalf of otherwise eligible clients without regard to immigration status.266 However, there remains the possibility that an individual will be subject to INS action prior to the completion of the court proceedings.

3. COBRA A private cause of action is available to "any individual who suffers harm as a direct result of a participating hospital's violation of a requirement of [the transfer/stabilization provisions]."267 That action may be pursued in federal court268 within the two year statute of limitations set forth in the


258 259


inafter M.P.P.]. Id. § 2 2 - 0 0 3 . 2 1 . M E D I - C A L GUIDE, supra note 256.


Id. 261 Id. See also M.P.P., supra note 257, §§ 21.010.1, 22.051.1. 262 See M.P.P., supra note 257, § 22-023.13. 263 Id. § 22-063.1. 264 Id. § 22-065. 265

MEDI-CAL GUIDE, supra note 256.


See 45 C.F.R. §§ 1610.1-1610.5 (1991). 42 U.S.C. § 1395dd(d)(2)(A) (1988), as amended by Pub. L. No. 101-508, 104 Stat. 1388 (amendments transferred § 1395dd(d)(3)(A) to § 1395dd(d)(2)(A)). Bryant v. Riddle Memorial Hosp., 689 F. Supp. 490 (E.D. Pa. 1988). See also Thorton v. Southwest Detroit Hosp., 895 F.2d 1131 (6th Cir. 1990).





statute.269 The statutory language providing for a private cause of action has been found to incorporate a state's substantive limitation on the maximum amount recoverable for the personal injury from a health care provider, but not a state's procedural limitations on medical malpractice claims.270 Unfortunately, the difficulties inherent in pursuing a private cause of action are much the same as those relevant to the enforcement of Hill-Burton obligations. Absent participation as an unnamed class member, the potential hurdles may prove too difficult to overcome. Downloaded by [McGill University Library] at 08:33 18 November 2014

B. Immigration Remedies The remedy to an undocumented alien's inability to access necessary medical care may lie within the immigration context where the individual requires nonemergency medical care, particularly if that care is necessary on an ongoing basis. This section explores situations in which an undocumented alien may obtain a lawful immigration status. If otherwise eligible for public benefits, an undocumented alien who achieves status in one of the enumerated categories may qualify for nonemergency publicly funded medical care. 1. Suspension of Deportation Suspension of deportation is a remedy that is available only to individuals who already have been placed in deportation proceedings. It is potentially available to individuals who can demonstrate seven years' continuous physical presence in the United States, good moral character during that period of time, and extreme hardship to themselves or to a United States citizen or lawfully admitted permanent resident spouse, child, or parent, as a result of their deportation.27' An individual's health may be relevant to a finding of extreme hardship.272 Suspension of deportation also may be available to individuals who have committed serious crimes, but they must demonstrate good moral character and continuous physical presence in the United States for at least 10 years following the commission of the crime, as well as exceptional and extremely unusual hardship.273 A successful application for suspension of deportation will result in a grant of permanent residence.274 2. Deferred Action Deferred action is an administrative remedy. If granted, the INS assigns a lower priority to the deportation of the individual. The INS may 269


271 272 273 274

42 U . S . C . § 1395dd(2)(C) (1988 & Supp. I 1989), as amended by Pub. L. No. 101-508, 104 Stat. 1388. Reid, 709 F. Supp. at 8 5 4 - 5 5 .

Immigration and Nationality Act, 8 U . S . C . § 1254(a)(1) (1988 & Supp. II 1990). Mejia-Carrillo, 6 5 6 F.2d at 522; Anderson, 16 I & N Dec. at 598. Immigration and Nationality Act, 8 U . S . C . § 1254(a)(2) (1988 & Supp. II 1990). Id. § 1251(a).

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consider the following factors in deciding an application: (1) the likelihood of removing the alien, including (a) the likelihood that the alien will leave the United States without formal proceedings, (b) the alien's ability to travel due to age or physical condition, (c) whether another country will accept the alien, and, (d) whether the alien will qualify for relief that would prevent or delay deportation; (2) the presence of sympathetic factors that could lead to protracted deportation proceedings, or an unfavorable result; (3) the likelihood of adverse publicity as to the presence of sympathetic factors that could result in a disproportionate investment of INS time; and, (4) whether the individual has committed a grave offense.275 A grant of deferred action will permit an individual to remain in the United States for one year, after which time the INS will review the merits of the application on an annual basis.276 A grant of deferred action will provide an undocumented individual with lawful status and the concomitant ability to qualify for publicly funded nonemergency medical care.277 Unfortunately, applications for deferred action are often denied, and INS may revoke a •


grant at any time. 3. Registry Registry permits an alien to adjust status to permanent residence. An applicant must demonstrate continuous residence in the United States since entry prior to January 1, 1972. Additionally, the alien must demonstrate that he or she is of good moral character, and not inadmissible as a criminal, procurer, immoral person, narcotics laws violator, subversive, or alien smuggler, and is not ineligible for United States citizenship.279 Registry is available both as an administrative remedy and in the context of deportation.280 The grant of a registry application permits the alien to qualify for publicly funded nomemergency medical care.281 4. Adjustment of Status Adjustment of status is available to an alien already in the United States. It can be obtained as an administrative remedy or in the context of a deportation proceeding. The alien must meet the following requirements: (1) inspection and admission or parole into the United States;282 (2) appearance 275

276 277 278 279 280 281 282


INTERPRETATIONS § 242.1(a)(22) (1991) [hereinafter INS OI]. See id. See supra note 122 (discussion of PRUCOL status). See INS O I , supra note 2 7 5 , § 242.1(a)(22). Immigration and Nationality Act, 8 U.S.C. § 1259 (1988 & Supp. II. 1990). See 8 C.F.R. § 249.2 (1991). See supra note 122. For a discussion of inspection and admission procedures and parole, see 1 IMMIGRATION LAW SERVICE, supra note 5 , § 11.1-11.99.

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at the adjustment interview unless he or she is under the age of 14 and this requirement is waived; (3) eligibility for receipt of an immigrant visa; (4) admissibility to the United States for permanent residence; and, (5) the availability of an immigrant visa at the time the alien files the application.283 Additionally, the alien must not have worked in the United States without authorization after December 31, 1976, unless he or she is seeking adjustment of status as the immediate relative of a United States citizen.284 These requirements preclude the success of an application for adjustment in many cases. First, many undocumented aliens have entered the United States illegally, in other words, without inspection, and are therefore statutorily barred from receiving this remedy. Those who entered with the proper documentation may have worked without authorization, and are consequently barred as well. In addition, many undocumented aliens may not have either the family or employment relationships that form the basis for an application for adjustment of status.285 Those who do may face a waiting period for a visa that is as long as 10 years, due to oversubscribed quotas.286 5. Political Asylum Political asylum is available to aliens as an administrative remedy, or in the context of a deportation proceeding. The alien must demonstrate a reasonable likelihood of persecution287 due to race, religion, nationality, membership in a particular social group, or political opinion.288 The alien also must demonstrate that: (1) he or she possesses a characteristic that the persecutor seeks to overcome in others by some sort of punishment; (2) the persecutor knows or could know that the alien possesses this characteristic; (3) the persecutor is capable of punishing the alien; and, (4) the persecutor is inclined to punish the alien.289 Ultimately, the alien must demonstrate both subjective and objective elements of fear to establish a well-founded fear of persecution.290 As indicated previously, a large proportion of undocumented aliens in the United States are thought to come from Mexico.291 Consequently, it is unlikely that they would be able to qualify for political asylum under the above criteria. It may be difficult for an individual to make a successful 283

284 285 286

Immigration and Nationality Act, 8 U . S . C . § 1255(a) (1988). See generally Deportation: Part I, 88-8 IMMIGRATION BRIEFINGS 10 (1988). Immigration and Nationality Act, 8 U.S.C. § 1255(c) (1988). Id. §§ 1153-1154 (1988 & Supp. II 1990).

Id. §§ 1151-1152. See DEPARTMENT O F STATE, VISA BULLETIN (Aug. 1991), reprinted PRETER RELEASES A p p . IV, at 895 (1991).

287 288 289 290 291

Elliot, Relief

In re Acosta, 19 I & N 211 (BIA 1985). Immigration and Nationality Act, 8 U.S.C. §§ 1101(a)(42)(A), 1158(a) (1988). In re Mojharrabi, 19 I & N Dec. 439 (BIA 1987). Bajwa v . Cobb, 727 F. Supp. 53 ( D . Mass. 1989). Passel & Woodrow, supra note 14.


in 68 INTER-



showing of eligibility for asylum due to lack of corroboration, an inability to remember,292 or the uneven application of eligibility standards to various nationalities.293

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6. Private Bills Private bills are difficult to obtain and require that a member of Congress support this request for extraordinary relief. A Congressman who agrees to sponsor legislation on behalf of an undocumented alien will introduce a bill to that effect. The bill will be forwarded to the Judiciary Committee of the House in which it is introduced.294 Both the Senate and the House Judiciary Committees have published Rules of Procedures regarding private legislation.295 An individual requesting this extraordinary relief due to the existence of a medical condition will encounter a variety of hurdles. First, a bond may be required when the alien is excludable for a mental or physical condition.296 Additionally, the alien's medical records are subject to review by the Subcommittee on Immigration, Refugees, and International Law of the House Judiciary Committee. The Subcommittee may request information from government agencies to assess any public charge implications.297 An alien likely to be a public charge due to a medical condition ordinarily would be found excludable298 and it would therefore be unlikely that the alien would be the beneficiary of a private bill. Realistically, the private bill may well be a remedy available only to those who already have sufficient funds to cover the cost of their medical care. C. Regulatory Mechanisms It is important to note that the existence of regulatory review of a complaint against a facility will not result in the provision of care to the complaining individual. Rather, it may result in sanctions against the offending institution and, theoretically, a cessation of the offending practice in the future. However, the undocumented individual still may be left without the necessary health care. 292

See Loue, Health-Related



Issues in Immigration



DENIED APPLICANTS DEPORTED (1987). See American Baptist Churches v . Meese, 712 F. Supp. 7 5 6 (N.D. Cal. 1989). 294

C . GORDON & S. M A I L M A N , 3 IMMIGRATION LAW AND PROCEDURE § 7 . 1 2 b , at 7-184 (1991).


These rules are reproduced in id. at 7-184 to 7-188.10. Subcommittee Statement of Policy, reprinted in C . GORDON & S. MAILMAN, supra note 2 9 4 , § 7.12b, at 7-188.4. F o r a listing of the possible mental and physical conditions that may result in a finding of excludability, see Immigration and Nationality Act, 8 U . S . C . § 1182(a)(l) (1988 & Supp. II 1990). See generally Loue, supra note 292. Subcommittee Statement of Policy, supra note 296. Immigration and Nationality Act, 8 U . S . C . § 1182(a)(4) (1988 & Supp. II 1990).


297 298



1. Hill-Burton Program A hospital that has accepted governmental assistance for construction, expansion, or modernization under this program may be penalized for a failure to provide free health care.299 Action by the Secretary of HHS may include voluntary agreement or a request to the Attorney General to bring an action against the facility for specific performance.300

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2. COBRA A hospital that knowingly and willfully, or negligently, fails to comply with the statutory mandates regarding the provision of emergency care is potentially subject to suspension or termination of its provider agreement and/or a civil penalty.301 A physician also may be sanctioned for violations of the provisions.302 3. State Provisions Table 2 provides a summary of potential state sanctions against facilities that violate their state mandate regarding the provision of emergency medical care. It is unclear whether any of these sanctions are effective deterrents of prohibited practices, as fines may be nominal relative to the potential cost of care.303 V. ALTERNATIVE MECHANISMS FOR HEALTH CARE AND A PROPOSAL FOR CHANGE It has been said that the American health care system is "out of control,"30* due to high costs,305 low reimbursement levels,306 increasing competition between providers,307 and the growing number of individuals without 299

John Muir Mem. Hosp. v. Davis, 559 F. Supp. 1042 ( N . D . Cal. 1983), aff'd, 726 F.2d 1443 (9th

Cir. 1984). 42 C.F.R. § 124.512(a) (1991). 301 42 U . S . C . § 1395dd(d) (1988 & Supp. I 1989), as amended by Pub. L. N o . 101-508, 104 Stat. 1388. 302 Id. See, e.g., Inspector Gen. v. Burditt, N o . C-42(HHS July 2 8 , 1989) (available from Clearinghouse Review, Clearinghouse No. 45,013). 303 See, e.g., G A . C O D E A N N . § 3 1 - 8 - 4 6 (Harrison 1990); WASH. REV. C O D E A N N . § 7 0 . 1 7 0 . 0 7 0 (Supp. 1992); Wis. STAT. A N N . § 146.301(7) (West 1989). 304 Davies & Felder, Applying Brakes to the Runaway American Health Care System: A Proposed Agenda, 263 J . A . M . A . 7 3 , 73 (1990). 305 Id.; Rosenthal, Health Coverage for the Uninsured: A Primer for Legal Services Advocates, 24 CLEARINGHOUSE REV. 1250, 1251-54 (1991). 3( ™ Feder, Hadley, & Mullner, Poor People and Poor Hospitals: Implications for Public Policy, 9 J.


HEALTH P O L . , POL'Y & L. 237 307


Kennedy, The Last Word: Ensuring Access to Essential 1987).

Health Care, 61 HOSPITALS 120 (No. 2,

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TABLE 2. Sanctions for Denial of Emergency Care by 5itate Potential Sanction(s)

State California

Areas of Coverage

Suspension of License

transfer, discharge, patient notification of rights

Revocation of License






evaluation, admission, transfer, recordkeeping



pregnant women in labor



examination, admission




Florida UJ

Louisiana Maryland


New York

diagnosis, treatment




transfer, admission






•- transfer


Criminal Sanctions











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health insurance and access to health care. These problems raise value issues regarding the desirability of universal access to care, the social and political acceptability of a multi-tiered health care system, and societal willingness to accept limits on freedom of choice to contain costs.309 Clearly, the lack of access for undocumented aliens is only one part of a much larger problem. The threshold question exists as to whether society should be concerned at all about ensuring undocumented aliens' abilities to access existing care or expanding available services to include nonemergency care. This preliminary issue clearly cannot be resolved definitively within the scope of this article. However, various aspects of the situation should be borne in mind while examining the alternatives presented below. First, moral arguments exist in support of the provision of care to undocumented aliens.310 Second, undocumented aliens have been found to pay more in taxes than they collect in benefits.311 Third, some undocumented aliens are children and are here not as a matter of choice but because they were brought by parents who may be either documented or undocumented. It is not at all clear that the denial of benefits to these children as punishment for their status is either warranted or excusable.312 Fourth, many undocumented aliens may have been resident in the United States for substantial periods of time and have become participating members of their communities.313 A. Universal Health Care Various writers have pointed to Canada's system of health care as an example of affordable and universal access to care. Canada spends approximately 8.5% of its gross national product (GNP) on health care for 25 million people. The United States spends approximately 11 % of its GNP on health care that remains unavailable to approximately 37 million people.314 308


310 311

Id.; Lewin, Access and Quality Issues, 64 BULL. N.Y. A C A D . M E D . 2 0 (1988); Smith, Data Show Lack of Insurance a Serious Problem, 88 MrCH. M E D . 19 (Apr. 1989). See generally Kitzhaber, Access to Health Care a U.S. Concern, 4 0 A M . FAM. PHYSICIAN 19S (Supp. Nov. 1989). Tavani, Report on a Seminar on Financing and Service Delivery Issues in Caring for the Medically Underserved, 106 P U B . HEALTH REPS. 19, 21 (1991). See Hansen, The Ethical Dilemma of Health Care, 15 STATE LEGIS. 8 (Oct. 1989). Nickel, supra note 2 . Taxes Aliens Pay, supra note 3 0 . See also COMMUNITY RESEARCH ASSOCIATES, I N C . , UNDOCUMENTED IMMIGRANTS: THEIR IMPACT ON THE COUNTY O F SAN DIEGO 83-89 (1980).


See Comment, Equal Protection: Can California Offer More for Undocumented Children?, 16 PAC. L.J. 1101 (1985). F o r a discussion of equal protection and access to health care generally, see Mariner, Access to Health Care and Equal Protection of the Law: The Need for a New Heightened Scrutiny, 12 A M . J . L . & M E D . 345 (1986).


See Ciesielski, Hall, & Sweeney, Occupational Injuries Among North Carolina Migrant Farmworkers, 81 A M . J. P U B . HEALTH 926, 927 (1991). Wunnicke, Canada Keeps Costs Down, 15 STATE LEGIS. 10 (1989). See Lowy & Vayda, Letter to the Editor, 321 N E W E N G . J. M E D . 1551 (1989); Rimmer, Observations on Primary Health Care in Ontario, Canada, 4 0 BRIT. J. G E N . PRAC. 300 (1990).


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Canada appears to control its costs through the imposition of limitations on what physicians can charge and what hospitals can spend.315 In the past, the American Medical Association has taken a strong position against a national medical care program, perceiving it as a threat to the autonomy of the medical profession.316 Physicians are divided not only regarding the issue of national health insurance,317 but also regarding the appropriate organization and coverage in the event there should be such a plan.318 Discussion of the scope of a universal health care program and the mechanisms for its funding may be found elsewhere,319 and will not be repeated here. The establishment of a national health care system still would require the formulation of answers to many questions relating to the undocumented population. Must the undocumented individual have resided in the United States for a minimum period of time to qualify for coverage? How may that residence be proved? Will undocumented individuals be found eli-


Wunnicke, supra note 314; Oreopoulos, Letter to the Editor, 321 N E W E N G . J. M E D . 1551 (1989). See Detsky, O'Rourke, Naylor, Stacey, & Kitchens, Containing Ontario's Hospital Costs Under Universal Insurance in the 1980s: What Was the Record?, 142 C A N . M E D . A.J. 565 (1990). F o r an interesting comparison of the costs of surgery for malignant bowel cancer in the United States and Canada, see McCarthy, Tracking the Cost of Health Care: The Bill Came to $5339, 142 C A N . M E D . A.J. 1271 (1990).


American Medical Association, Power, Purpose and Politics in Organized Medicine, 6 3 YALE L . J . 938, 997 (1954). Maheux, Beland, & Pineault, The Influence of Medical School Programs on Physician's Attitudes Toward Universal Access to Medical Care, 2 5 M E D . CARE 202 (1987). Colombotos, Kirchner, & Millman, Physicians View National Health Insurance: A National Study, 13 M E D . CARE 369 (1975). F o r an example of a program of national health insurance, see H . R . 16, 102d Cong., 1st Sess. (1991). F o r discussion regarding a national health program and its financing, see, e . g . , Evans, Accessible, Acceptable and Affordable: Financing Health Care in Canada, in T H E 1990 RICHARD AND HINDA ROSENTHAL LECTURES 7-47 (1990); Evans, Lomas, Barer, LaBelle, Fooks, Stoddart, Anderson, Feeny, Gufni, Torrance, & Tholl, Controlling Health Expenditures: The Canadian Reality, 320 N E W ENG. J. M E D . 571 (1989); Enthoven & Kronick, A Consumer Choice Health Plan for the 1990's: Universal Health Insurance in a System Designed to Promote Quality and Economy, 320 N E W E N G . J. M E D . 29 (1989); Grumbach, National Health Insurance in America: Can We Practice with It? Can We Continue to Practice Without It?, 151 W.J. M E D . 2 1 0 (1989); Grumbach, Bodenheimer, Himmelstein, & Woolhandler, Liberal Benefits, Conservative Spending: The Physicians for a National Health Program Proposal, 2 6 5 J . A . M . A . 2549 (1991); Himmelstein & Woolhandler, A National Health Program for the United States: A Physicians' Proposal, 320 N E W E N G . J. M E D . 102 (1989); Woolhandler & Himmelstein, A National Health Program: Northern Light at the End of the Tunnel, 262 J . A . M . A . 2136 (1989). For an examination of social and political conditions conducive to the establishment of a national health care system, see Sakala, The Development of National Medical Care Programs in the United Kingdom and Canada: Applicability to Current Conditions in the United States, 15 J. HEALTH P O L . , POL'Y & L . 7 0 9 (1990).




The Bush Administration proposal for health care reform would facilitate coverage for some portions of the United States population, while contracting coverage for other members. T H E PRESIDENT'S COMPREHENSIVE HEALTH REFORM PROGRAM ( F e b . 6, 1992). The plan as written does not

specifically address coverage for undocumented aliens.



gible for health coverage using the same criteria as would be used for United States citizens?320

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B. Increased Federal Support A somewhat simpler interim solution may be available to both undocumented individuals and localities that are especially impacted by INS enforcement and by the need to provide care for the undocumented population. For example, it is clear that undocumented aliens may be severely injured during Border Patrol attempts to detain them.321 Whether a high speed chase on the freeway, which endangers the lives of the aliens, the officers, and innocent passers-by is warranted when the most serious offense committed is one of illegal entry ultimately is not only a legal issue to be addressed, but a moral one as well. Local hospitals are mandated by federal law to provide emergency care to those presenting at the emergency room. When those presenting for evaluation and treatment have been injured as the result of actions taken by federal agents, which may not, in fact, have been warranted, equity would argue that the federal government should bear those costs. Alternatively, as the control of immigration is a federal function, it seems only just that the costs incurred in the performance of that function and as a result of that function be borne by the federal government. Neither statute nor regulation currently permit a local hospital or a locality to collect full reimbursement of such costs from the federal government. A statutory amendment is necessary that would provide for the filing of such claims with the federal government for review and reimbursement. C. Amendments to the Internal Revenue Code A number of bills have been introduced to amend the Internal Revenue Code (IRC) in ways that would presumably encourage hospitals to provide either additional charitable care or a requisite level of emergency care. These proposals, if passed, could improve access to care by undocumented aliens by strengthening facilities' legal obligations and financial incentives to provide that care. The Charity Care and Hospital Tax-Exempt Status Reform Act of 1991 would preclude the receipt of a tax exemption by a hospital that does not provide sufficient qualified charity care and sufficient qualified community 320

Under H.R. 16, supra note 319, undocumented aliens appear to be eligible for coverage so long as they meet the financial eligibility criteria outlined in sections 104, 105, and 701 of the bill. 321 See, e.g., City of El Centro, 922 F.2d at 818. For background information on freeway accidents involving undocumented aliens who are attempting to evade Border Patrol examination, see Jones, A Deadly Game in the Fast Lane, L.A. Times, Dec. 11, 1990, at A3, col. 1; McDonnell, 2 More Killed Near Freeway Checkpoint, L.A. Times, Dec. 26, 1990, at A l , col. 4 ; Newman, I-5 Median Fence to Save Migrants from Freeway Traffic Called "Waste of Money," L.A. times, Dec. 12, 1990, at B14, col. 1.

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benefits in a nondiscriminatory manner.322 The Act provides for the reporting of these services by the hospital as a part of its annual return.323 House Bill 1374 seeks to clarify, through an amendment to the IRC, the requirement that hospitals provide certain emergency medical care in order to be exempt from income tax.324 Under certain circumstances, the offending hospital may elect civil monetary penalties in lieu of a loss of tax-exempt status.325 As civil penalties often provide inadequate incentive to comply with the anti-dumping provisions of COBRA,326 it is unclear whether these penalties would provide any greater inducement when it is cost effective not to comply. The Health Care Savings Account Act of 1991 would amend the IRC to allow employees and employers a 60% tax credit for contributions to a health care savings account for the benefit of the employee or self-employed individual.327 It is unlikely that most undocumented aliens, who are often in low-paying jobs, could afford any deduction from their paycheck that would be sufficiently large to realize a tax savings. It is also unclear whether employers in occupations traditionally served by undocumented workers would voluntarily choose to establish such a fund, particularly when the practice has been to discharge employees who are ill or injured.328 D. Mandated Coverage Through Employment A state mandate for coverage through employment could require that employers provide minimum benefits to employees and their dependents. Hawaii is currently the only state with mandated employer coverage, due in part to restrictions imposed by the federal Employee Income Security Act (ERISA).329 The Hawaii mandate requires that employers with more than one employee provide basic health coverage to full-time employees, who are defined as those working more than 87 hours per month. Employers cover only 50% of the costs of coverage.330 A number of issues are raised regarding the effectiveness of such a plan with respect to the undocumented. Some employers may have only one employee, such as a live-in housekeeper. An exemption for small-scale em322 323 324 325 326

327 328



H.R. 790, 102d Cong., 1st Sess. (1991). Id. § 2(b). H.R. 1374, 102d Cong., 1st Sess. (1991). Id. § l ( a ) . See Note, Preventing Patient Dumping: Sharpening the COBRA's Fangs, 61 N.Y.U.L. REV. 1186 (1986). H.R. 7 0 2 , 102d Cong., 1st Sess. (1991). See Lansing & Alabart, The Reagan Administration Proposals on Immigration: The Problem of the Undocumented Alien in the United States, 13 C A L . W. I N T T L.J. 1 (1983). ERISA preempts all state laws that regulate employee benefit plans, including health benefits. 29 U . S . C . § 1144(a) (1988 & Supp. I 1989). HAWAII REV. STAT. §§ 393-11 to 393-24 (1985).

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ployers would potentially deprive a large number of undocumented aliens of coverage. Stronger enforcement of state and federal labor and tax laws also would be necessary to discourage the common practice of paying undocumented workers in cash and later denying their existence. A limitation as to the minimum number of hours worked per month to be considered eligible for coverage could result in a lack of coverage for those undocumented aliens engaged in seasonal employment, such as grape picking. It is also unclear whether, absent a subsidy, the majority of undocumented workers eligible for coverage could financially afford to pay their share of the premium, as well as the deductibles and co-payments for themselves and their dependents. The alternative "pay or play" approach to employer-provided health insurance is an attempt to avoid ERISA preemption without a specific Congressional exemption such as that received by Hawaii. "Pay or play" provisions give employers the choice of providing health care coverage or being liable for a tax.331 Massachusetts' Health Security Act is one example of a "pay or play" approach.332 The Massachusetts plan is designed to cover pre-existing conditions, which often form the basis for a denial of health care coverage.333 The law also provides that by 1992 all employers of six or more full-time employees will have to pay the state a surcharge of up to $1,680 per employee to help fund the plan. Employers who offer health insurance will be able to deduct the cost of the insurance from the surcharge.334 The exclusion of small employers from this mandate could result in the noncoverage of undocumented aliens employed in smaller businesses. Unlike the Massachusetts scheme, one California "pay or play" proposal would provide coverage for all "California residents and their dependents with no other available health insurance coverage."335 The employer would be required to provide the basic health care coverage to employees or 331

A . B . 3 2 8 , 1989-90 Sess. (July 10, 1989 version), in SENATE O F F I C E O F RESEARCH, EXPANDING A C C E S S TO H E A L T H C A R E FOR CALIFORNIA'S U N I N S U R E D POPULATION 2 8 - 3 0 (1990) [hereinafter E X PANDING A C C E S S ] .


333 334

F o r a history of t h e passage of t h e A c t , see Goldberger, The Politics of Universal Access: The Massachusetts Health Security Act of 1988, 15 J . HEALTH P O L . , POL'Y & L . 857 (1990). See also Wunnicke, Massachusetts Insures the Uninsured, 14 STATE LEGIS. 2 1 (Aug. 1988). Wunnicke, supra note 3 3 2 , at 2 2 . Id. A . B . 3 2 8 , supra note 3 3 1 . F o r an interesting comparison with other California proposals for mandated employer coverage, see A . B . 3 5 0 , 1989 Sess. (July 19, 1989 version), in EXPANDING ACCESS, supra note 3 3 1 , at 26-27; California Medical Association Proposal (Jan. 1 1 , 1990), in EXPANDING ACCESS, supra note 3 3 1 , at 33-35; S.B. 6 , 1989 Sess., in EXPANDING ACCESS, supra note 3 3 1 , at 36-37. Unlike A . B . 3 2 8 , these other proposals would provide coverage t o only a portion of the uninsured population. Coverage under S . B . 6 would b e available only to "permanent state residents," which could exclude not only undocumented aliens, but also some aliens w h o may b e present legally.

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pay an eight percent payroll tax on the wages of uncovered employees. The payment rate for uninsured employees would be two percent of gross wages, up to 25% of the premium for coverage. Those who are not employers or employees and are not covered by a health benefits plan would be taxed at a rate of two percent of their income. Salaries below the poverty level would be exempt from taxation.336 Assuming that undocumented aliens residing in a state with such a plan could qualify as residents for the restricted purpose of participation in the plan, many of the problems inherent in other approaches would be eliminated. All uninsured persons would be covered under this plan. Those earning minimal wages would not be required to allocate a portion of their wages to insurance. Presumably, the possession of health insurance would reduce the barriers experienced by undocumented aliens in obtaining nonemergency care. E. High Risk Pools As of 1989, approximately 15 states had created risk pools to provide comprehensive coverage to individuals who were otherwise unable to purchase health insurance coverage,337 either because they had been turned down by insurers or because they had been offered coverage at prohibitively high rates due to an existing condition or handicap.338 Even assuming that undocumented aliens could participate in such plans if otherwise eligible, it is not at all clear that the potential availability of this coverage would actually impact their access to medical care. Pool coverage is extremely expensive; premiums may cost 50% more than the premium paid by a healthy person.339 Pool coverage also may require that the insured pay a deductible. Consequently, pool coverage truly is

336 337

A . B . 328, supra note 3 3 1 . States with risk pools included Connecticut, Florida, Illinois, Indiana, Iowa, Maine, Minnesota, Montana, Nebraska, New Mexico, North Dakota, Oregon, Tennessee, Washington, and Wisconsin. Subcommittee on Health, House Committee on Ways and Means, Press Release No. 14 (May 8, 1989), reprinted in Establishment of State Risk Pools to Provide Health Coverage for Uninsured Americans: Hearings Before the Subcomm. on Health of the House Comm. on Ways and Means, 101st Cong., 1st Sess. 2 (1989) [hereinafter Hearings on State Risk Pools].


Hearings on State Risk Pools, supra note 337, at 4 (statement of Rep. Peter Stark, Chairman). Some risk pools require as a prerequisite to eligibility verification that an individual either has been denied coverage elsewhere or has been charged excessive premiums due to an existing condition. See, e.g., I L L . A N N . STAT. ch. 7 3 , § 1307 (Smith-Hurd Supp. 1991); IND. C O D E A N N . § 27-8-105.1(b) (Burns Supp. 1990); IOWA C O D E A N N . § 514E.7.2 (West 1988); M E . REV. STAT. A N N . tit. 24A , § 6057 (1990); N . M . STAT. A N N . § 59A-54-12 (1988 & Supp. 1991); T E X . INS. C O D E A N N . art. 3.77, § 10 (Vernon Supp. 1992); UTAH C O D E A N N . § 3 1 A - 2 9 - l l l ( l ) (1991). Others may require documentation of a specific condition. See, e.g., Wis. STAT. A N N . § 619.12 (West Supp. 1990).


Hearings on State Risk Pools, supra note 337, at 15 (testimony of Aaron K. Trippler, Vice President of Membership Services, Communicating for Agriculture).



not available to those who cannot afford its cost.340 In view of the low wages received by many undocumented aliens, it is unlikely that pool coverage is a realistic option for those requiring medical attention for an already existing condition.

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E Expanded Medicaid It has been suggested that Medicaid be expanded to enable undocumented aliens to obtain full benefits.341 One research group found that the expansion of coverage to include all persons below the federal poverty line who were uninsured as of 1989 would cost approximately $9 billion.342 They found, however, that a portion of these increased costs would be offset by reduced utilization of federal programs serving the poor uninsured and reduced spending for state-financed programs for the indigent. This expanded coverage also would reduce the out-of-pocket spending by the poor for health care.343 Even if an expansion of Medicaid to include the undocumented were financially and politically feasible, the impact on access for the undocumented population could well be negligible. Benefits available under Medicaid differ between states. An expansion of the class of individuals eligible for benefits could result in a move to reduce available benefits. The low payment rates for providers also could limit the ability of undocumented aliens to access care.344 Many undocumented individuals might limit their access to care through Medicaid due to fears of later being denied a lawful status because of their reliance on publicly funded services. G. Other Approaches A number of other possibilities exist that deserve greater explanation and discussion regarding their feasibility. First, there exist sources of revenue from undocumented aliens, such as unclaimed excess state and federal income tax payments from employer withholding and fines from employer sanctions. If such funds could be identified and earmarked, then there exists the possibility of establishing a pool of funds to be used to reimburse hospitals for the full cost of care for undocumented aliens. The availability 340



343 344

Id. at 22 (statement of Patricia K. Ikard, Chairman, Board of Directors of New Mexico Comprehensive Health Insurance Pool). See Health Care Services to Undocumented Persons, supra note 2 4 , at 244 (statement of Henry Waxman). See generally Berk & Wilensky, Health Insurance Coverage of the Working Poor, 25 Soc. Sci. M E D . 1183, 1186 (1987). Bovbjerg & Kopit, Coverage and Care for the Medically Indigent: Public and Private Options, 19 IND. L. REV. 857, 898-99 (1986). Thorpe, Siegel, & Dailey, Including the Poor: The Fiscal Impacts of Medicaid Expansion, 261 J . A . M . A . 1003, 1006 (1989). Id. See Russell, Providing Medical Care for the Poor: A Proposal, 66 BULL. N.Y. A C A D . M E D . 329, 330 (1990).

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of full reimbursement may remove the economic incentive to transfer or refuse treatment to undocumented patients when such decisions are medically inappropriate. The United States spends large sums of monies each year to provide foreign aid to other nations. A solution may be in the allocation of a portion of these funds instead to the provision of medical care within the United States to undocumented aliens who are citizens of these countries. A third potential solution lies in the strengthening of international cooperation as health care concerns transcend national borders. This would require efforts to reduce the disparities in health status between the United States and the countries from which the majority of the United States undocumented have arrived. This approach necessarily would require increased research and educational efforts and better use of existing data. Cooperative efforts between the United States and Mexico, for instance, could parallel those presently underway in Europe.345 A reduction in these disparities ultimately could prove to be the single most effective means to reduce the financial burden on the United States over a long term period and provide necessary medical care to individuals who might otherwise seek treatment in the United States.346 CONCLUSION Public outcries regarding the widespread and voracious consumption of resources by undocumented aliens appear misplaced, in view of the substantial personal and systemic obstacles that hinder their access to care. Yet, it is also clear that some facilities and communities are impacted economically. This may be due in part to their geographical location, but it is due in large part to our societal inability or unwillingness to formulate a consistent and comprehensive policy and program to address the difficult issues raised by this community's medical needs and inability to have those needs addressed. Solutions are available, some of which may be both fiscally sound for our nation and its communities and humane to the undocumented population in our country. It is time that we take the time to examine our options and to choose from them wisely. 345

See Pinet, The WHO European Program of Health Legislation and the Health for All Policy, 12 AM. J.L. & MED. 441, 443 (1990); Svensson, Introduction: Health Inequities in Europe, 31 Soc. Sci. MED. 225 (1990). See also Editorial, Mental Health Services for Migrants in Europe, 336 LANCET 911, 912 (1990). 346

As John Donne wrote: "No man is an island, entire of itself; every man is a piece of a continent, a part of the main; . . . any man's death diminishes me because I am involved in mankind; and therefore never send to know for whom the bell tolls; it tolls for thee." Devotions No. 17, in J. DONNE, SELECTED PROSE (N. Rhodes ed. 1987) (spelling updated).




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California Nonemergency Health Care, 62 Op. Att'y Gen. 70 (1979). Florida FLA. STAT. ANN. § 154.304(3) (West Supp. 1992). Hawaii HAWAII REV. STAT. § 336-12 (1985). Idaho Intermountain Health Care, Inc. v. Board of Comm'rs of Blaine County, 109 Idaho 412, 707 P.2d 1051 (1985). Kansas KAN. STAT. ANN. § 39-709(e) (Supp. 1991). New Mexico Perez v. Health and Social Serv., 91 N.M. 334, 573 P.2d 689 (1977), cert, denied, 91 N.M. 491, 576 P.2d 297 (1978). Texas Ibarra v. Bexar County Hosp. Dist., 624 F.2d 44 (5th Cir. 1980). Virginia VA. CODE § 32.1-343 (Michie Supp. 1991).


Alabama Birmingham Baptist Hosp. v. Crews, 229 Ala. 398, 157 So. 224 (1934). Harper v. Baptist Medical Center-Princeton, 341 So. 2d 133 (Ala. 1976). Citizens Hosp. Ass'n v. Schoulin, 48 Ala. App. 101, 262 So. 2d 303 (1972). Chandler v. Hospital Auth. of Huntsville, 548 So. 2d 1384 (Ala. 1989). Arizona ARIZ. REV. STAT. § 11-297, 11-297.01 (West Supp. 1991). Maricopa County v. Superior Court for County of Maricopa, 108 Ariz. 373, 498 P.2d 461 (1972), rev'd sub. nom. Memorial Hosp. v. Maricopa County, 415 U.S. 250 (1974). Guerrero v. Copper Queen Hosp., 112 Ariz. 104, 537 P.2d 1329 (1975).

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Hiser v. Randolph, 126 Airz. 608, 617 P.2d 774 (Ariz. App. 1980). But see Thompson v. Sun City Community Hosp., 141 Ariz. 597, 688 P.2d 605 (1984). Thompson v. Sun City Community Hosp., 141 Ariz. 597, 688 P.2d 605 (1984) (en bane), rev'g in part and aff'g in part, 142 Ariz. 1, 688 P.2d 647 (Ariz. App. 1983). St. Joseph's Hosp. & Medical Center v. Maricopa County, 12 Ariz. 94, 688 P.2d 986 (1984) (en bane). Arkansas Carr v. St. Paul Fire & Marine Ins. Co., 384 F. Supp. 821 (W.D. Ark. 1974). California CAL. HEALTH & SAFETY CODE §§ 1317-1317.4 (West 1990). S. B. No. 175, 1988 Cal. Stat. 1441. DHS Letter No. 88-66 (Sept. 15, 1988). DHS Letter No. 88-87 (Dec. 12, 1988). Payton v. Weaver, 131 Cal. App. 3d, 182 Cal. Rptr. 225 (1982). Bay Gen. Community Hosp. v. County of San Diego, 156 Cal. App. 3d 944, 203 Cal. Rptr. 184 (1984). Dermegerdich v. Rank, 151 Cal. App. 3d 848, 199 Cal. Rptr. 30 (1984). Madera Comm. Hosp. v. County of Madera, 155 Cal. App. 3d 136, 201 Cal. Rptr. 768 (1984). Cooke v. Superior Court, 213 Cal. App. 3d 401, 261 Cal. Rptr. 706 (1989). Crespin v. Kizer, 226 Cal. App. 3d 498, 276 Cal. Rptr. 571 (1990). Dominguez v. Superior Court, 226 Cal. App. 3d 524, 276 Cal. Rptr. 564 (1990). Delaware Wilmington v. Manlove, 54 Del. 15, 174 A.2d 135 (1961). District of Columbia Lucy Webb Hayes Nat'l Training School v. Geoghegan, 281 F. Supp. 116(D.D.C. 1967). Florida FLA. STAT. ANN. §§ 395.0142, 395.0144 (West Supp. 1992) (repealed eff. Oct. 1, 1992). FLA. STAT. ANN. § 458.3295 (West 1991) (to be repealed eff. Oct. 1, 1996). FLA. ADMIN. CODE ANN. § 10C-8.300 (1990). Bourgeois v. Dade County, 99 So. 2d 575 (Fla. 1956). LeJeune Road Hosp. v. Watson, 171 So. 2d 202 (Fla. App. 1965). Ruvio v. North Broward Hosp. Dist., 186 So. 2d 45 (Fla. App. 1966), cert, denied, 195 So. 2d 567 (Fla. 1966).

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Dade County v. American Hosp. of Miami, 502 So. 2d 1230 (Fla. 1987). Georgia GA. CODE A N N §§ 31-8-42, 31-8-43, 31-8-46 (Harrison 1990). Buttersworth v. Swint, 53 Ga. App. 602, 186 S.E. 770 (1936). Williams v. Hospital Auth. of Hall County, 119 Ga. App. 626, 168 S.E.2d 336 (1969). Hospital Auth. of Gwinnett County v. Jones, 259 Ga. 759, 386 S.Ed.2d 120 (1986), vacated and remanded, 111 S. Ct. 1298 (1991), remanded, 409 S.E.2d 501 (1991). Hawaii HAWAII REV. STAT. § 321-232(b) (1985). Idaho IDAHO CODE §§ 39-1391 to 39-1391c (1985). East Shoshone Hosp. Dist. v. Nonini, 109 Idaho 937, 712 P.2d 638 (1985). Illinois I I I . ANN. STAT. ch. I l l 1/2, §§ 86, 87, 6151 (Smith-Hurd 1988 & Supp. 1991). Indiana IND. CODE A N N . § 12-5-6-2.1 (Burns 1988); id. §§ 16-1-39-1 (Burns 1990); id. § 16-1-39-2 (Burns Supp. 1991). Kentucky KY. REV. STAT. A N N . §§ 216B.400.(l) (Baldwin Supp. 1991); id. § 216B.900.(3) (Baldwin 1988). Hill v. Ohio County, 468 S.W.2d 306 (Ky. 1971), cert, denied, 404 U.S. 1041 (1972). Noble v. Sartori, 799 S.W.2d 8 (Ky. 1990). Louisiana LA. REV. STAT. A N N . ch. 40, §§ 2113.4, 2113.6 (West Supp. 1992). Joyner v. Ochsner Med. Found., 230 So. 2d 913 (La. App. 1970). Hastings v. Baton Rouge Gen. Hosp., 498 So. 2d 713 (La. 1986). Maryland Davis v. Johns Hopkins Hosp., 86 Md. App. 134, 585 A.2d 841 (Md. App.), cert, granted, 591 A.2d 506 (Md. 1991). Massachusetts M A S S . G E N . LAWS A N N . ch. I l l , § 70E(e) (West 1983 & Supp. 1991).

Michigan MICH. COMP. LAWS ANN. §§ 333.20904,

333.20921 (West Supp. 1991). Ritter v. Wayne County Gen. Hosp., 174 Mich. App. 490, 436 N.W.2d 673 (1988). Walling v. Allstate Ins. Co., 183 Mich. App. 731, 455 N.W.2d 736 (1990).



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Minnesota MINN. STAT. ANN. § 256B.06 (West Supp. 1992). Missouri MO. ANN. STAT. §§ 205.989, 256B.06 (Vernon 1983). Stanturf v. Sipes, 447 S.W.2d 558 (Mo. 1969). Nevada NEV. REV. STAT. ANN. § 439B.410 (1991). New Jersey Monmouth Med. Center v. Hau Kwok, 183 N.J. Super. 494, 444 A.2d 610 (1982). New York N.Y. PUB. HEALTH LAW § 2805-b(l) (McKinney Supp. 1992). Jones v. City of New York, 134 N.Y.S.2d 779 (Sup. Ct. 1954), judgment rev'd, 286 A.D. 825, 143 N.Y.S.2d 628 (1955). O'Neill v. Montefiore Hosp., 11 A.D.2d 132, 202 N.Y.S.2d 436 (1960). Barcia v. Society of New York Hosp., 39 Misc. 526, 241 N.Y.S.2d 373 (1963). North Carolina N.C. GEN. STAT. § 143-507 (Michie 1990). Pennsylvania 28 PA. ADMIN. CODE § 117.1 (West 1991). Rhode Island R.I. GEN. LAWS § 23-17-26(a) (Michie 1989). South Carolina S.C. CODE REGS. R. 61-16, § 613.1-2 (1992). South Dakota Fjerstad v. Knutson, 271 N.W.2d 8 (S.D. 1978). Fjerstad v. Sioux Valley Hosp., 291 N.W.2d 786 (S.D. 1980). Tennessee TENN. CODE ANN. §§68-39-301, 68-39-302, 68-39-511(12) (Michie 1987 & Supp. 1991). Texas TEXAS HEALTH & SAFETY CODE §§ 311.021, 311.022 (Vemon Supp. 1992). Childs v. Weis, 440 S.W.2d 104 (Tex. Civ. App. 1969). Valdez v. Lyman-Roberts Hosp., 638 S.W.2d 111 (Tex. App. 1982). Gonzalez v. United States, 600 F. Supp. 1390 (W.D. Tex. 1985). Brownsville Medical Center v. Garcia, 704 S.W.2d 68 (Tex. App. 1985). Floyd v. Willacy County Hosp. Dist., 706 S.W.2d 731 (Tex. App. 1986). Salas v. Gamboa, 760 S.W.2d 838 (Tex. App. 1988).

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Utah UTAH CODE ANN. §§ 26-8-2(11), 26-8-8(1) (Michie 1989). Virginia VA. CODE ANN. § 32.1-127 (Supp. 1991). Washington REV. WASH. CODE § 70.170.060(2) (Supp. 1992). Wisconsin Wis. STAT. ANN. § 146.301 (West 1989 & Supp. 1990). Wyoming WYO. STAT. ANN. § 35-2-115 (Michie 1988).


Access to health care and the undocumented alien.

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