Texas physicians caught in cross-border battle

New rules would turn providers into INS agents’

Public hospitals in Texas are struggling to come to terms with a recent state attorney general’s opinion that they should refuse to provide subsidized nonemergency health services to undocumented immigrants.

County public hospitals and clinics have for years treated low-income residents regardless of their immigration status. An estimated 1 million Texans do not have legal residency status. Restricting services now to only citizens and legally recognized residents would turn health care providers into "INS agents" and jeopardize the fragile solvency of the public health system, claims Ron Anderson, MD, president and CEO of Parkland Hospital and Health System, the public health care system serving Dallas County.

"We don’t want our hospitals to become places that people are afraid to come to until they are critically ill," he says. "If you want to solve problems with immigration, it should be done at the border or in the workplace, not in the back of an ambulance or emergency room."

Feds make first ruling

According to a legal opinion issued by Texas Attorney General John Cornyn on July 10, the 1996 federal welfare reform act (officially known as the Personal Responsibility and Work Opportunity Reconciliation Act) made it illegal for publicly-funded health systems to provide nonemergency services to uninsured residents who are undocumented immigrants, unless the state specifically passes legislation allowing it.

The only exceptions are emergency services, immunizations, diagnosis and treatment of communicable diseases, disaster relief services, school lunch and breakfast, and programs necessary to protect life and safety (domestic violence shelters, homeless shelters, food banks, soup kitchens, emergency mental health, and substance abuse services).

These are protected under federal law for all residents and cannot be restricted, says Anne Dunkelberg, MPA, senior policy analyst with the Center for Public Policy Priorities in Austin.

Following the opinion, a group known as the Young Conservatives of Texas filed complaints with the district attorneys in Harris, Dallas, Bexar, and El Paso counties, alleging that the public hospital districts had misappropriated taxpayer funds by providing nonemergency services to illegal residents. And, three county health districts (Nueces, Montgomery, and Tarrant) announced that they would not provide subsidized nonemergency care to undocumented immigrants.

"Some counties have been scared into not providing care," says Anderson. This is unfortunate not only because these people will have no access to primary and preventive services, but because the health districts will still be responsible for caring for emergency medical situations that arise when chronic medical conditions go untreated. The cost of treating critical and acute medical conditions is much higher than the cost of providing free preventive care to the uninsured, undocumented residents, he says.

"For example, we have really strong data on our prenatal care system. We deliver 16,000 babies each year at Parkland," Anderson states. "We get prenatal care for 96% of those births. For the 4% who don’t get prenatal care, they have an infant mortality rate that is four to six times higher. Considering the costs associated with low birth weight and other complications of no prenatal care, the health system will have to absorb that higher price and they have also ethically and morally compromised the life of those children forever."

Dialysis patients are another concern for the public hospitals and clinics, he adds.

Renal failure is a chronic medical condition that becomes acute intermittently. Patients from other countries, many times the parents of legal residents, come here on visitation visas, have an acute episode, and end up in hospital emergency departments requiring treatment.

"That is a pretty expensive circumstance, and it is a huge issue for us," Anderson acknowledges. "We have about 19 patients who are undocumented from different parts of the world. We can’t get these patients into private dialysis units, so we have been carrying the burden for that care, and we’ve never billed for it."

Public opinion polls have shown that 52% of Texans support the attorney general’s position and are in favor of restricting subsidized medical care to legal residents. However, most people are unaware that hospitals are required by federal law to treat all people who present to their facility with emergency medical conditions — a fact that would likely change their opinion about providing primary and preventive care earlier, Anderson contends.

It would make more sense, he says, to proactively try to establish better guest worker programs and get some sort of limited health insurance for these residents, rather than just restrict care altogether, which has the opposite of the intended effect, he says.

"The politicians are looking at the polls. But, we believe if the questions had been asked correctly, we would have had a different result," he says. "Nobody is saying, We have to pay for these illnesses at a much more expensive stage downstream, what do you think about that?’ Even people who don’t care about the morality of it, wouldn’t want to spend the additional money."

Regardless of public opinion, public hospitals are obligated to provide indigent care to legal and undocumented residents alike, Anderson adds. "I think the polls are flawed, but even if it [public opinion against providing care] was 75%, it does not relieve us of our responsibility from a moral point of view."

After consulting with the hospital system’s board of directors and attorneys, and meeting with the Dallas County district attorney, Parkland has decided to continue providing subsidized services to county residents without asking about immigration status, says Anderson.

Hospital attorneys have reviewed the federal law and Cornyn’s opinion, as well as a 1999 constitutional amendment and a separate law passed by the Texas Legislature that, they believe, specifically allows public funds to be used to provide health services to undocumented residents.

The 1999 law was a renewal of a 1985 law that defined the roles and responsibilities of hospital districts, says Anderson. "We went back and listened to the tape of the legislators in 1985 and it was clearly their intention to cover the undocumented. They had the opportunity to change that in 1999, and they didn’t. We think their intention was to keep things the way they were."

In addition, the 1999 amendment to the state constitution stated that counties were to provide medical services for all needy "inhabitants" of the county, and did not distinguish between those with legal status and those without, he adds. Their attorneys believe these two statutes demonstrate that the state has passed legislation specifically permitting subsidized care to undocumented immigrants.

At this time, criminal investigations still are proceeding although the Dallas district attorney has assured Parkland officials that he has found no evidence of criminal intent, and that he would not pursue complaints based on past actions by the hospital to cover illegal immigrants.

"Right now, we are kind of in limbo," Anderson says. As for the counties who have stopped providing the subsidized care, he suspects that they also are continuing to treat these patients, but are just writing off unpaid charges as bad debt.

"I have talked to some of them privately and, although that is their political position, they do not turn people away," Anderson states. "What they do is charge them the full amount."

Parkland has a program that allows indigent patients to pay for services on a sliding scale according to their ability to pay. In admitting patients to the program, hospital staff ask the patient if he or she is a resident of the county or intends to be a resident of the county, but they don’t ask about immigration status.

"They apparently are asking that question and denying them any sort of sliding scale opportunity to pay for their bill," adds Anderson. "I seriously doubt they have wholesale turned people away, even though that may be what their board and county commissioners have expected them to do."

It’s important to understand that the attorney general’s opinion does not carry the weight of law and is not an enforcement order, explains Dunkelberg. "It is not like a judge making a decision and directing the government to do something. It is just asking a person, who is an expert, for his opinion and he gives it."

On Aug. 30, Michael A. Stafford, the attorney for Harris County, released his own legal opinion on the matter, which differed from that of the state attorney general. Like the Parkland officials, Staf-ford concluded that the state Legislature had, in fact, taken action to specifically allow these services to continue to be provided to all residents, documented and undocumented.

"The Texas Department of Health has always construed the term resident’ in a manner which does not condition residency on the legal status of the person," the opinion reads. "Furthermore, the Legislature has also provided the necessary legislative action after Aug. 22, 1996, to permit the District’s continuation of health care assistance to all residents, regardless of legal status."

Stafford’s opinion carries equal legal weight with the state attorney general’s and it remains to be seen whether the complaints against the public hospital districts hold up in court, Dunkelberg says. In the meantime, undocumented immigrants are being denied needed care in some areas, and even in counties that are committed to continue serving them, many may be afraid to seek care at all.

"Some people may not realize that they can still use the emergency room," she says.

But, the real fear is that, unless Congress or the Legislature acts, efforts made by the Texas public health system to improve access to primary care and preventive medicine will be lost.

"The whole thrust of public health systems over the last 20 to 30 years has been for government entities that deliver care to the uninsured, have been trying to get primary and preventive care out there as a way to reduce both the need for emergency care and the use of the emergency room for non-emergent care," Dunkelberg explains. "A policy like what the attorney general is pointing to would really run counter to the whole direction of public health systems that have been underway for three decades."

Although the Harris and Dallas County hospital districts have not changed their policies, a number of the smaller counties, notably Nueces and Montgomery, have changed theirs, even though hospital officials have said they think it is a bad idea, she adds.

"Very publicly they said they thought it was a bad policy change and they were only doing it because they were afraid of being sued," she says. "They are so small and their resources so limited that they simply cannot afford to be dragged into court."

The policy change will likely mean that these small counties will end up spending more money on emergency care for conditions they could have treated early. "They have to suffer the fiscal consequences of it as well as the humanitarian consequences," she says.

The hospitals’ only hope for a remedy now is for the state legislature to pass a law explicitly granting counties the right to decide for themselves what to do with public health care funds. However, she notes, the Texas Legislature only meets every other year and will not convene again until January 2003.

The alternative, she says, is for Congress to act and alter the parts of the welfare reform act that affect provision of health care to immigrants.

"This is putting health care providers in a terrible, ethical bind," she says. "The best outcome that could happen would be for this ill-conceived federal law to be changed."

Sources

  • Ron Anderson, Parkland Hospital and Health System, 5201 Harry Hines Blvd., Dallas, TX 75235. Telephone: (214) 590-8000.
  • Anne Dunkelberg, Center for Public Policy Priorities, 900 Lydia St., Austin, TX 78702.

For More Information

  • Center for Public Policy Priorities. The Straight Story: Health Care for Uninsured Undocumented Immigrants in Texas. The Policy Page.
  • Landa AS. Illegal care? Treating undocumented immigrants in Texas. American Medical News. Oct. 1, 2001. Accessed on the web at: http://www.ama-assn.org/sci-pubs/amnews/pick_01/gvsa1001.htm.
  • Graham J. Migrants chilled by health care ruling. Chicago Tribune. Aug. 13, 2001.
  • Brewer S. Opinion supports immigrant care: County attorney says federal law would not be violated. Houston Chronicle; Sept. 7, 2001.
  • The Access Project and the National Health Law Program (NheLP). Immigrant Access to Health Benefits: A Resource Manual. A free copy is available from The Access Project web site: www.accessproject.org.