Texas medical center on verge of ending cancer treatment for illegal immigrants

Ethicist: Problem is an ethics crisis for the nation, not just one state

The University of Texas Medical Branch (UTMB) in Galveston has long been the hospital where indigent patients — including illegal immigrants — sought care. But the strain placed on the hospital's cancer treatment resources for the indigent has led the university hospital to propose refusing cancer treatment to patients who cannot document that they are legal U.S. residents.

The decision on whether to deny care based on documented status was pending at press time, but a University of Texas ethicist told Medical Ethics Advisor the time when state-funded hospitals had to choose who to turn away has been looming for a long time.

"What happened was we had a crunch a couple of years ago, and there was actually a period of time when the cancer program ran out of money before the end of the year, and all [indigent] patients were being turned away [from the cancer program] by the end of the year," recalls Howard Brody, MD, PhD, director of the Institute for the Medical Humanities at UTMB and chair of the medical branch's ethics committee.

Political debate quickly ensued, comparing the merits of denying care to certain segments of a population based on immigrant status in order to preserve resources vs. denying care to taxpaying, legal U.S. residents because resources are expended on illegal aliens.

Brody says the question is not whether the hospital is forced to deny care, but rather, "Who do you say no to?"

The issue being faced by UTMB and other hospitals in the United States — particularly in the 24 border counties that run along the U.S.-Mexico border — is not over denial of emergency care. The Emergency Medical Treatment and Active Labor Act (EMTALA) requires hospitals to treat and stabilize patients seeking emergency care. Furthermore, the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 — commonly referred to as "Medicare Section 1011" — provides reimbursement to hospitals, physicians, and ambulance providers for unreimbursed costs of services required under EMTALA and furnished to undocumented aliens, aliens paroled into the United States, and Mexican citizens permitted temporary entry to the United States.

Section 1011 provides $250 million per year for fiscal years 2005-2008 for payments to eligible providers for emergency health services provided to undocumented aliens and other specified aliens, and Texas is slated to receive $44 million of those funds in 2008. A 2004 Texas attorney general's opinion leaves it up to hospitals in the state to decide individually whether to use state funds for providing preventive or nonemergency care to people who do not have legal status in the United States.

But for nonemergency treatments, such as cancer therapy, hospitals are being forced to get lean and creative to serve as many patients as possible on set budgets.

$12 million stretched for indigent cancer care

The UTMB set aside about $12 million in the $1.4 billion annual budget for 2007 to treat indigent cancer patients, but that isn't enough to meet demand, says Karen Sexton, RN, PhD, vice president and CEO of hospitals and clinics at the medical branch.

And the cancer program is running lean, the hospital and Brody report. The medical branch laid off 381 employees in 2006 to counter rising costs, state funding cuts, and a growing constituency of uninsured patients.

After several years of running out of money and cutting off care to all indigent patients when the money ran out of the cancer budget, Brody says, the medical branch tried to come up with a better plan.

"In trying to do something in the interim, they tried the best they could to document where people were from — not to identify immigrants vs. U.S. citizens, but just to document where they were coming to us from, because some counties [in Texas] have more generous funding and some have deals with our system and some don't," he explains. "It's a crazy patchwork for funding cancer care, and if someone who had funding [in their home county] could go back home for care there, then the money we had would stretch farther."

At no time, Brody repeats, was an emergency patient turned away, but nonemergency patients who could be steered back to their home counties for care were rerouted when possible. And patients already under care at the branch were not denied care, nor would they be if they were already under care at UTMB if and when the hospital was to decide to halt care to undocumented immigrants.

"While this was going on, the chemotherapy group really looked hard at all their costs, and cut their costs significantly," says Brody. "They took steps for efficiency anywhere they could, to become a lean machine for providing care, because they believe sincerely in the money going to the care of patients."

Ethics in an unethical situation

Brody told MEA in December that UTMB was planning a forum on rationing care in January, but as of press time the cancer program had not requested a formal consult with the ethics center.

"They may feel that they have to make a decision quickly, that it's an institutional decision that will come through institutional channels," says Brody.

He says even under a bad system, there are ethical and unethical ways to make decisions.

Deciding who gets care

"Do you want to categorize patients broadly, or decide patient by patient?" he asks. "The argument for patient-by-patient selection is that you can stretch your dollars and maximize your outcomes by selecting patients who will benefit most from your resources.

"The danger is, is the patient you like going to get treatment, and the patient you don't like going to be denied treatment? Is someone with a different lifestyle going to be labeled as noncompliant? Are you opening the door to too much of a personal judgment when it's left up to such individual decisions? Individual choices can be very suspect."

Making selection choices based on broad categories carries its own ethical risks, he continues.

"I would warn that it's not ethically defensible that immigrant status be used to turn people away," he says, referencing California's passage of Proposition 187 in the mid-1990s. Proposition 187 sought to bar illegal immigrants from social programs, public schools, and free health care, but was ruled unconstitutional and declared dead in 1999.

"I think of the concerns raised by the legislation in California that would have denied care to undocumented immigrants — if they don't have papers, are they illegal? And is it racial stereotyping if you ask your Hispanic patients for papers, but not patients who appear Anglo?"

Brody says the problems faced by the cancer program at UTMB don't start and end with the U.S.-Mexico border states.

"Obviously, some hard choices have to be made, starting with the failure of the United States to have some comprehensive plan of care," he suggests. "Historically, if hospitals couldn't provide a service, people didn't expect them to provide it. But today, there's a disconnect between us being an affluent country but being unable to provide care to people who can't afford it."

Sexton issued a statement saying hospital staff are keenly aware of the impact any decision is going to have on patients.

"We're trying to do the best we can to help our physicians and others with a decision by making it not so subjective," she said. "It doesn't feel right to us, either."

Nor should it, says ethicist Brody.

"I don't think we should try to stop it from being upsetting — we want it to be upsetting," he points out. "When we have to turn people away today, we should be thinking about what we can do to change the system so we don't have to turn people away tomorrow."


For more information, contact:

  • Howard Brody, MD, PhD, director, Institute for the Medical Humanities; professor, family medicine, John P. McGovern Centennial Chair, University of Texas Medical Branch, Galveston. E-mail: habrody@utmb.edu.
  • U.S. Department of Health and Human Services, Centers for Medicare & Medicaid Services. FY 2008 State Allocations for Section 1011 of the Medicare Modernization Act: Federal Reimbursement of Emergency Health Services Furnished to Undocumented Aliens. Available at www.cms.hhs.gov.