Hospitals are required to provide emergency medical services to all persons who present in the ED, regardless of immigration status. Once admitted, the illegal immigrant patient often becomes hostage to a system that does not provide Medicaid coverage for medically necessary post-hospital services. 

If patients suffer a prolonged hospitalization, significant financial losses for the hospital can occur, especially if the patient develops an infection. The issues are often thorny, and hospital administrators need to be aware of the hospital’s rights and obligations when treating an illegal immigrant.

Under EMTALA, general hospitals are obligated to provide an appropriate medical screening and stabilizing medical treatment to every person who presents in the ED with an emergency medical condition. Under no circumstances, including during triage and patient registration, may a hospital delay screening or stabilizing treatment to inquire about an individual’s method of payment or insurance status. 

Stabilizing an emergency medical condition often requires admission to the hospital for acute medical services. Some states, including New York, have their own anti-dumping statutes that require general hospitals to admit any person who presents to the hospital in need of immediate hospitalization, regardless of whether the person is insured or uninsured, a citizen, a qualified immigrant, or an illegal immigrant.

Under HIPAA, the availability of federally funded governmental benefits for qualified immigrants and illegal immigrants was severely restricted. Although the law preserved federally funded Medicaid coverage for emergency medical care, such as acute care hospital services, the law proscribed Medicaid coverage for qualified immigrants for a period of five years after entry into the US and prohibited the use of federal Medicaid funds for illegal immigrants for non-emergency medical services. 

Since Medicaid is a jointly funded program administered by the states, each state is free to adopt Medicaid eligibility rules that are more inclusive than federal laws, provided that the state provides the financial support for such programs without using federal funds. 

Some states, such as New York, have extended Medicaid to certain qualified immigrants within the first five years of their entry into the US. With few exceptions that vary by state, there is no leniency for illegal immigrants, and they are not entitled to Medicaid coverage for any non-emergency medical services.

The impact on hospitals is profound. Emergency Medicaid coverage is available to pay for acute medical services provided in a hospital, but there is no easy way to discharge an illegal immigrant patient who requires ongoing medical care. 

Discharge options

Hospitals are obligated under various state laws to formulate an appropriate discharge plan for each patient. Generally, the plan must identify the patient’s needs for ongoing medical care and the resources available to the patient to meet those needs. But how does a hospital discharge an illegal immigrant requiring ongoing skilled medical care when the patient has no resources and is not entitled to Medicaid benefits to pay for such medical services?  

Healthcare providers such as nursing homes and home health agencies are often unwilling to provide services to an illegal immigrant because there is no source of payment. Nursing homes and home health agencies are not under any obligation to provide care, and they are entitled to both medically and financially screen a patient before agreeing to provide services. 

As a result, hospitals are often compelled to look to family, friends, religious groups, and charitable community services to create a discharge plan that meets the patient’s needs. Some home health agencies are willing to provide charity services for those who demonstrate financial need. 

Some hospitals have been willing to arrange and pay for a person’s return to his/her native country to the care of family members who agree to provide the necessary services. For the patient who needs supervision only, such a discharge plan may be easily established with a willing family member. It is more difficult when the patient requires ongoing skilled nursing care and the country of origin does not provide such services. 

In that situation, it may be impossible for the hospital to establish an appropriate discharge plan. Remember that the illegal immigrant patient is entitled to participate in the development of the discharge plan and may refuse to cooperate. Such refusal raises numerous issues, and proceeding over the patient’s objection can leave the hospital liable and may violate laws providing federal jurisdiction over deportation matters. These issues are presently being vigorously litigated in a case pending against a hospital in Florida. 

Some states have extended Medicaid to immigrants who are persons residing under color of law (PRUCOL). In general, PRUCOL is extended to an individual who is permanently residing in the US with the knowledge and permission of the US government and whose departure the federal government does not contemplate enforcing. 

There are multiple ways to establish PRUCOL, and under this analysis, there is no five-year waiting period. Accordingly, if the illegal immigrant can obtain PRUCOL status, the individual can obtain Medicaid if s/he otherwise meets the eligibility requirements. 

Given privacy concerns and other patient’s rights, hospitals faced with the dilemma of discharging a patient who requires skilled nursing services and is not otherwise eligible for Medicaid due to illegal immigrant status should consult counsel to determine whether or not it is appropriate to assist the patient.

There are no easy answers to this dilemma, and there remains the possibility of liability and a public relations nightmare for discharge plans gone awry. The best solution to this complex, multifaceted problem is to seek the patient’s cooperation while ensuring that the hospital is aware of the law and potential pitfalls that may accompany a hasty or ill-advised decision. Great care and creative thinking, with the patient’s participation, is often the best approach. 

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