Immigrants, Health Reform, and “Lies”

Cortez

In a much-anticipated prime time address to Congress, President Obama made the case for health care reform.  One ostensible goal of the speech was to correct misinformation about the bills proposed by Congress.  As a scholar who studies both health care and immigration (and sometimes the intersection between the two), I’ve grown increasingly frustrated with the misconceptions surrounding this issue — and I very much hoped the President would deflate the myth that health reform would provide federal benefits to undocumented immigrants.

Of course, when President Obama made this very point (”The reforms I’m proposing would not apply to those who are here illegally”), he was greeted with a heckle from South Carolina Representative Joe Wilson, who shouted “You lie!”  Although Rep. Wilson later apologized for his “lack of civility,” he didn’t recant the basic factual assertion, making clear that he still disagreed with the President’s statement that health reform doesn’t cover undocumented immigrants.  Of course, the media has jumped on this story, but perhaps unsurprisingly, few bothered to clarify the underlying factual dispute.

Neither bill published by the House or Senate covers undocumented immigrants.  In fact, both bills state in pretty plain terms that they don’t do it.  The House bill, titled America’s Affordable Health Choices Act of 2009, states in Section 242 that those not lawfully present in the United States are not eligible for insurance subsidies or tax credits.  To make it even more clear, Section 246 is titled “No Federal Payment for Undocumented Aliens,” and states “Nothing in this subtitle shall allow Federal payments for affordability credits on behalf of individuals who are not lawfully present in the United States.”

Likewise, the Senate Health, Education, Labor, and Pension Committee’s bill, titled the Affordable Health Choices Act, states in Section 3111(h) that “Nothing in this Act shall allow Federal payments for individuals who are not lawfully present in the United States.”  The Senate Finance Committee has yet to release its bill, but it’s a good bet that undocumented immigrants similarly will be excluded.

Although nothing in the bills apparently would prohibit undocumented immigrants from purchasing health insurance in the new national marketplace (called an “exchange” and a “gateway” in the House and Senate bills), it’s not clear why anyone would take issue with immigrants purchasing insurance on their own, without federal subsidies.  Moreover, although nothing in the bills seems to alter federal funding for emergency care provided to immigrants, nothing creates such a benefit either — thus undercutting Rep. Wilson’s contention with the President.

This controversy should remind us that immigrants remain in a sort of health care purgatory, caught in our two most dysfunctional systems — immigration and health care.  In the mid-1990s, Congress severely limited immigrant access to programs like Medicaid as part of welfare reform, making it difficult for even lawful immigrants to enroll.  In fact, even lawful immigrants aren’t eligible for Medicaid for five years after entering the United States — and various peculiarities of immigration law often push this waiting period to ten years.  At the same time, immigrants do receive indirect federal funding for health care through the Emergency Medical Treatment and Active Labor Act (EMTALA), which requires hospitals with emergency departments to screen and at least stabilize patients presenting with emergent conditions.  Thus, hospitals must provide emergency care regardless of the patient’s immigration status.

Unfortunately, most immigrants are ineligible for means-tested public insurance programs like Medicaid.  This regulatory framework has led to “medical repatriation,” in which hospitals effectively deport immigrant patients to unload expensive long-term care burdens.  Of course, hospitals — most of which are run by state and local governments — complain about unfunded federal mandates like EMTALA.  Hospitals can be “stuck” treating immigrants whose medical needs have shifted from acute to long-term (as with the car accident victim who needs neurological rehabilitation and nursing care).  As Prof. Boozang discussed, a growing number have begun “repatriating” immigrant patients by sending them back to their country of origin — without consulting immigration officials — sometimes by purchasing commercial plane tickets or even hiring air ambulances.

Certainly, there are more humane ways to handle health care for immigrants.  California, for example, legalized cross-border health insurance, thus allowing immigrants living in the state to purchase insurance with lower premiums and deductibles that covers care provided in Mexico.  Arizona and Texas have considered similar legislation, to no avail.  Recently, UCLA researchers estimated that over 950,000 people travel from California to Mexico for medical care every year.  For a population being left out of health care reform, traveling to Mexico for care may be the future — whether voluntary or not.


Professor Cortez teaches and writes in the areas of health law, FDA law, administrative law, and the legislative process at SMU School of Law.  His scholarship focuses on international and comparative health law, particularly the regulation of emerging international markets in health care and biotechnology, such as cross-border health care, medical tourism, and clinical trials.  He also writes about immigration federalism.

Before joining the SMU law faculty, Professor Cortez practiced with the Washington, D.C., law firm Arnold & Porter, where he represented medical technology clients in administrative, legislative, litigation, and transactional matters, with a special emphasis on health care fraud and abuse, FDA enforcement, health privacy, and the Medicare and Medicaid programs.  Professor Cortez is a frequent contributor to Health Reform Watch, where this post first appeared.

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A. FitzpatrickAdamjerry.soucy@gmail.comDavisBrittancus Recent comment authors
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A. Fitzpatrick
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A. Fitzpatrick

I just received a request for donations from Swedish Heart and Vascular Institute in Seattle. It’s from Howard S. Lewis, M.D. I’m curious about how much Dr. Lewis makes?
Does anyone know?

Nate
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Nate

Phillip, that was paid for illegals and excludes any contributions they make and taxes paid. There are roughly 8 million people that want insurance and can’t afford it or get it. 11 billion is $1,375 towards fixing each of their problems. I love how the left wants to ignore 11 billion on illegals and another few billion on tort reform, and the billions wasted on medicare and medicaid fraud but OMG did you see how much the CEO of United Health made!!! Those insurance company profits if the left could get rod of those everything would be all right. Majority… Read more »

Phillip
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Phillip

Beth,
The vast majority of the people want healthcare reforem in this country and more people than not want the public option.
You need to wake up and smell the coffee. Obama won a huge election victory. He has the mandate to move his agenda forward. Healthcare has been a central theme in his agenda for a long time. Elections have consequences. You no longer get to call the shots, as you lost the election. Try again in 2012.

Phillip
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Phillip

Nate, Even if you are right on the $11 bn to treat illegal immigrants that is only 0.6% of the average $2 trillion that is spent on healthcare every year. And if you assume that part of that is likely paid by illegals themselves from the taxes they pay, then the cost of illegals in the healthcare system is negligible. That is the point, given all the challenges and problems with healthcare, illegal aliens are so far down the list of real problems. Illegals are a red herring that is being used by the right-wing to try and tie the… Read more »

Beth Frederick
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Beth Frederick

The President and his main squeeze Axelrod need to wake up and smell the coffee:
http://crosssection.wordpress.com/2009/09/13/health-care-vote-is-high-noon/

Adam
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Adam

With all due respect to Mr. Cortez and his education in both health care and immigration perhaps he should spend some time educating himself on policy and enforcement. Its strange that for some reason any addition to the bill that is meant to enforce the touted legislation language has been defeated in a partisan way.
Its also funny that the president himself said (after Joe’s outburst) that he would now include enforcement language in his supported bill. Hmmm, must have been some reason for that, eh?

Phillip
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Phillip

Joe Wilson completely lied by saying that Obama lied. Wilson, mister healthcare reform, should know that the bills explicitly say that illegal immigrants are not include, just like Obama stated. It was Joe Wilson that was lying. If you want to argue about more enforcement, that is a competely separte issue and something that Obama hardly lied about. All I would say about enforcement is, I hope when you go to emergency that they ask you for your proof of citizenship before they treat you. It is a complete joke. You immigrant bashers are all the same. Try to blame… Read more »

Nate
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Nate

Are you auditioting for the role of village idiot Jerry? Are you disputing the facts outlined by NYT and WaPo? Luci had opinions about how she thought things were. I replied with facts about how they really are. And you chirp in with another Shorter, which I must admit was every bit as funny and enlightening as the other times you have used that. I think you should respond to every comment with a Shorter Nate, they are that brillant.

jerry.soucy@gmail.com
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Shorter Nate: No facts, please.

Nate
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Nate

Luci, You must not spend much time with these people. Almost every illegal alien I have ever know has ID in multiple names. Further you don’t need ID you can have it auto deposited to just about any bank account you want. Further still you can get the money when you file with the advances at which time the money goes to the tax preparer. From NYT Tens of thousands of foreigners are illegally obtaining Social Security numbers by using fake documents, a typical first step to identity theft and other crimes, From WaPo The Social Security cards were then… Read more »

Luci
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Luci

I’m wondering how they are able to “receive refunds” as you say, if they are using stolen or fake SSN’s? The system would catch this, thus not sending anything back to them. Let’s say, for example, Jose has a valid yet stolen card for John Doe, he pays taxes claiming only his stay at home wife and daughter as dependents, at the end of the year, how is he going to get any money back, or receive refunds? If the government sends him a check, it’ll be in the name of John Doe and therefore Jose can’t cash it. A… Read more »

Nate
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Nate

Mr. Cortez, I beleive this is the point where you add an update admitting you where 100% wrong, say your sorry to those you slandered and refrain from pretending you know anything about healthcare. You said; “As a scholar who studies both health care and immigration (and sometimes the intersection between the two), I’ve grown increasingly frustrated with the misconceptions surrounding this issue — and I very much hoped the President would deflate the myth that health reform would provide federal benefits to undocumented immigrants.” The President now admits; Today, for the first time as far as we know, the… Read more »

Nate
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Nate

to further Davis comment that fact the Democrats in the house and senate have now admitted the bill is lacking and that they are going to go back and amend it proves Wilson was right. Despite what the bill claimed illegals would have recieved benefits the same way they get jobs with fake documents. Phillip, Once you claim every illegal alien is a hard working honest citizen who only wants to earn a better life you show your true narative and naievety. I’ll assume you avoided the simple question becuase you couldn’t answer it without hurting your argument. I never… Read more »

Jerry
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Brittancus and Davis, you might just want to go straight to the microchips implanted beneath the scalp.
Meanwhile, Rob Miller is closing in on $1M in contributions, thanks to the boorish lout from SC.

Davis
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Davis

Here’s the flaw in your article: The bills published by the House and Senate do exclude illegal immigrants from Obama’s health care plan, as noted by your direct citations. Why Mr. Wilson’s cry of “You lie!” is completely justified is that the bill fails to describe exactly how this provision will be enforced. As it stands, illegal immigrants exist and thrive within this country because, despite immigration laws, the provisions providing for the enforcement of these laws vary from city to city, county to county, state to state, in all varying degrees ranging from lackadaisical to blatantly turning a blind… Read more »