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Undocumented immigrant patients in LT-care present challenges to hospitals
Martin Memorial decision an important one
A recent jury verdict in Florida may provide support for hospitals considering sending long-term, high-cost patients back to their home countries.
On July 27, a jury decided in favor of Martin Memorial Health Systems, which in 2003 repatriated a brain-injured patient to his native Guatemala.
The patient, Luis Alberto Jimenez, had "suffered traumatic brain damage and severe physical injuries" as a result of a car accident on Feb. 28, 2000, according to the original complaint, filed in the Circuit Court of the 19th Judicial Circuit by Montejo Gaspar Montejo, Jimenez's guardian. The patient spent nearly three years following the accident at Martin Memorial before being repatriated, with a short stint in a nursing home before he was returned to the hospital for emergency care in January 2001.
The hospital noted in a public statement that the case of Jimenez "has been a challenging situation for Martin Memorial for most of this decade." It also noted that the hospital had spent a "significant amount of resources as a result — resources that could have been used to provide patient care."
The complaint contended that the hospital committed "an action for false imprisonment" when it returned the patient to Guatemala, but the jury decided otherwise.
According to Carla Luggiero, JD, senior associate director for federal relations for the American Hospital Association in Washington, DC, hospitals are "watching this [decision] carefully," and she said the jury's decision "may make them a little more comfortable in moving forward" if they decide to repatriate a patient.
Hospital president/CEO issues statement
While the hospital is not granting media interviews following the jury decision, it did issue a public statement from its president and CEO, Mark E. Robitaille, of Martin Memorial Health Systems.
"We are obviously pleased with the jury's decision. We have maintained all along that we acted correctly and, most importantly, in the best interests of Mr. Jimenez.
"Regardless of the outcome of this case, what is most disappointing is that the issue of providing health care to undocumented immigrants remains unresolved on a state and national level. This is not simply an issue facing Martin Memorial," which is based in Stuart, FL.
"It is a critical dilemma facing health care providers across Florida and across the United States. What is truly unfortunate is that since Mr. Jimenez was first admitted to Martin Memorial nine years ago, nothing has been done to address this issue by our political leadership."
Luggiero also says that in 2003, the Medicare Modernization Act, which was passed then, included a provision, called Section 1011, that she describes as a "four-year program of $250 million a year allocated to states and hospitals that had a very high proportion of illegal immigrants in the hospital setting."
"And it did partially compensate [hospitals]," she notes. "When I say partially, it was maybe a quarter to the dollar — you know, it was something, rather than nothing."
"That program expired in . . . September of 2008, and efforts to have it reauthorized have been unsuccessful," she says.
However, Luggiero says the AHA, in an effort to get attention directed to health care costs for undocumented immigrants, has "consistently raised the issue."
"I think it's more of a political issue right now. There are so many strong feelings on both sides of the aisle about health care reform in the districts," she says.
The challenge hospitals face
Although indicating she has no "hard data" on this issue, "anecdotally, there does seem to be more concern about this," Luggiero says. "And 20 years ago, you didn't actually hear of anyone being repatriated, but it has, I think increased — at least it is my sense that it has increased over years."
Her position is that this issue has increased in importance because neither Medicare nor Medicaid pays for undocumented immigrant health care services "except in very, very remote circumstances," she says.
"But hospitals have this challenge: They have to remain viable to be able to offer services to the community at large," she says.
An acute care hospital, Luggiero says, is a very labor-intense and high-tech environment, and when you have a patient who has reached the point where the acute care that he or she is getting in the hospital has been fulfilled, then the hospital has to find another willing taker. In other words, the patient has reached a "plateau; they are not going to get any better," she says, despite being in the acute care setting.
Because there are no funds for undocumented immigrant care, the hospital has to absorb the cost.
"And when you've got a patient that has reached the point that they cannot get any better with the additional care that's given in the hospital, they are essentially taking up resources that could go to other patients that might need the bed," Luggiero says. "So, hospitals are kind of between a rock and a hard place . . .."
EMTALA, she notes, is a federal law that requires that hospitals stabilize patients who come in to their emergency department.
"But you know, we know that sometimes stabilizing a patient means more than making sure that their heart is beating, and their pulse is going, and that they're breathing," she says.
The ethics of the matter
William Greenough, MD, argues that the ethics of the patient-physician contract dictate that repatriating patients is an "unacceptable policy," as he wrote in the American Medical Association's Virtual Mentor publication in July in an article titled, "Treating and Repatriating: An Unacceptable Policy."1
Greenough is a professor of medicine and international health at Johns Hopkins University in Baltimore, and who works in long-time care in the division of geriatric medicine, focusing on patients who are on long-term ventilator support, dialysis, and hydration.
Greenough tells MEA, that "in most health care systems around the world, if I go to Canada or France, I am taken care of with no cost. And not shipped somewhere else. So, the ethical consideration is: Is the patient going to have an acceptable quality of care at the facility to which they are being referred?"
He maintains that the only way to know anything about the quality of care — and the likelihood of survival of a patient about to be transferred or repatriated to his or her own country from a U.S. hospital — is to have data about the hospital in the country to which the patient is being referred.
"Otherwise, the ethical issues would be that if you do not know what the care will be or else it's inferior care, you're basically consigning the patient to inadequate care, which from a doctor's point of view is unsatisfactory," Greenough notes. "It's unethical."
Physician as patient advocate
"A physician must advocate for his or her patient even if the hospital administration has debts or is near bankruptcy," Greenough writes in Virtual Mentor. "If this is truly the case, an appeal should be made to the state for financial help."
Greenough argues that if "the hospital administration insists on an unsafe transfer," the physician should seek legal counsel and aid vs. the hospital.
While he acknowledges that this could place a physician in an adversarial role vs. the hospital, it doesn't have to be confrontational, he says, and could be more of a collaborative approach — an approach he has taken at his institution to advocate for safe transfers of his patients.
"In the situation here in Maryland, we're stepping down people who are on ventilators to what are called skilled nursing ventilator facilities," he says. "And it's been done on the basis of paper transactions — paper guidelines — but the outcomes of those transfers, compared to a similar group of patients, have not been made available or are not available."
Greenough has been tracking his patients who have been transferred to skilled nursing ventilator facilities and has found that "there is a very high mortality rate for patients that are determined to be stable by the state criteria [for transfers]."
"So, I feel they are flawed criteria," he notes.
At this point, Greenough has worked with Johns Hopkins "to get the hospital to agree not to transfer further patients that are declared stable [based on state criteria] into the facility where they have not survived," he says.
It is important to note, that most of these patients had indicated previously that they would like to remain on life support, he says.
"In my case, what I've done is I've gotten the administration to agree that pending more information from the state and legal appeals by my patients, that we would not transfer patients, but would take the cost reduction for caring for the patient, which is the ethical position, although it's financially adverse for the institution," he says.
Hope for resolution
In the public statement from Martin Memorial Health Systems, Robitaille indicates that the health system's "hope is that something positive can come as a result" of the Jimenez case.
"This is an opportunity for leaders at the state and federal levels to find a solution, rather than relying on individual health care providers to develop solutions on a case-by-case basis," the statement suggests. "Unfortunately, none of the proposed national health care reform bills currently being debated in Washington address the issue of how to adequately provide health care for undocumented immigrants in a way that is fair and equitable to everyone involved."
Greenough indicates that the situation "all boils down to what is the least expensive way you can care for a patient on life support," and his goal is to convince not only his institution, but also "to persuade the insurance companies that they are still responsible for paying for the patient's cost of care."
"We're exploring how best to approach this situation, because clearly the hospital cannot eat a bad debt forever without going bankrupt, and with the current health system, why, there's increasing pressure on hospitals to swallow debt, basically," he says.
Still, the physician-patient contract remains the same, in his view.
"The primary ethical contract is between a patient and [his or her] physician, and the physician is responsible for the best interest of the patient who's in their care — and regardless of what the external pressures may be.
"You do the best you can with the resources you have and the situation you're in, and if you're in a refugee situation, it's different than if you are in a well-funded teaching hospital," Greenough says.