Home > Recent Post > Immigration Reform and Health Care: Leaving the Undocumented in the Breach – Lori Nessel

Immigration Reform and Health Care: Leaving the Undocumented in the Breach – Lori Nessel

Lori Nessel
Seton Hall University School of Law

Any effort at comprehensive immigration reform must also address the health care needs of millions of immigrants with long-standing ties to this country. Absent such reform, immigrants needing ongoing medical care will remain vulnerable to the unethical practice of de facto deportation by hospitals, which is fueled by a lack of government reimbursement or oversight of international discharges.

In fact, a recent study from the Center for Social Justice and New York Lawyers for the Public Interest cites hundreds of cases of forced or coerced medical deportations. Acting alone or in concert with private transportation companies, as my colleagues and I report, hospitals are functioning as unauthorized immigration officers and engaging in de facto deportation of seriously ill or injured immigrant patients directly from their hospital beds to their native countries.

The coerced repatriation and subsequent death of Marlene, a young longtime U.S. resident from Mexico, illustrates the perilous outcomes that all too often occur when hospitals engage in medical repatriation. Marlene was brought to the U.S. when she was one year old, and by the time she was nineteen, she dreamed of becoming a police officer and serving on the SWAT team. But just two months after her high school graduation, a family acquaintance entered her home and shot her in the head.

Marlene was rushed to a public hospital in Arizona. Upon arrival at the hospital, Marlene was admitted and initially “stabilized” by doctors. But after learning that she was undocumented, the hospital began pressuring Marlene’s relatives to agree to repatriation. The hospital’s pressure persisted as the family attempted to find any avenue of assistance. Meanwhile, Marlene developed an intestinal infection, severe fever, and pneumonia, and suffered a heart attack.

The family ultimately succumbed to the hospital’s pressure and agreed to her transfer, but still asked their attorney to investigate any possible relief that might allow Marlene to stay in the U.S. One possibility was a U Visa which, if granted, would have afforded Marlene lawful immigration status in exchange for her willingness to assist in the investigation of the crime. The hospital, however, would not delay Marlene’s transfer, and the doctors at the hospital declared her stable and able to travel. At 9:00 AM on August 10, 2010, Marlene was wheeled out a back entrance of the hospital and taken to Mexico. Upon her arrival, she was diagnosed with septicemia, pneumonia, and meningitis. At 5:05 AM on August 11, 2010, Marlene died.

Thanks to the new Deferred Action for Childhood Arrivals (DACA) program, someone in Marlene’s situation today might well qualify for employment authorization for two years. The DACA program provides a desperately needed first step towards providing lawful status to the millions of undocumented immigrants who have long-standing ties to this country. Yet even for those fortunate enough to qualify for DACA, the Administration acted quickly to explicitly exclude them for health care coverage. On August 28, 2013, the Administration changed its policies to assure that DACA grantees would be excluded from purchasing health insurance under the new health care laws. This failure to address the health needs of even the most sympathetic group of young immigrants is emblematic of a regime that must be reformed from both an immigration and a health perspective.

Our research findings lead us to a number of recommendations that merit immediate consideration at the national and state levels. In the short term, the Department of Health and Human Services (DHHS) could do more to regulate trans-border hospital discharges. For example, DHHS should immediately promulgate regulations that prohibit and impose sanctions on any hospital that performs an involuntary repatriation. It should also develop a process by which hospitals must document and report “international patient transfers.”  Finally, it should develop an auditing process through which DHHS can monitor compliance with such rules and regulations.

The Department of State should also implement a formal procedure for verifying international medical transfers with receiving hospitals before travel documents are issued. Hospitals must confirm (in cooperation with foreign consulates) that destination hospitals can provide the necessary long-term care before a transfer is deemed viable. Hospitals should also establish protocols to ensure that patients’ consent to international transfers is informed through disclosure of potential immigration consequences. Finally, hospitals should train hospital social workers and advocates in the special issues of working with immigrants, both documented and undocumented.

On a state level, states should repeal any bars to funding for means-tested and long-term medical care based on immigration status, and each should establish a fund for long-term care for catastrophically injured immigrants. States should also amend legislation to allow a broader basis for Permanently Residing under Color of Law (PRUCOL) eligibility for Medicaid.

Longer-term change, however, will need to come from reconceptualizing the “value” of immigrants and the need to guarantee the basic human dignity of all persons regardless of immigration status. If comprehensive immigration reform is to create a meaningful change, it will need to include immigrants in health care reimbursement schemes. Denying basic health care rights to immigrants endangers a particularly vulnerable population and poses a public health threat to everyone. Human rights norms require the U.S. to step in and regulate international patient discharges rather than turning a blind eye to the actions of hospitals and private actors.

Lori A. Nessel, J.D. is Professor of Law and Director of the Center for Social Justice at Seton Hall University School of Law. She has written scholarly articles analyzing medical repatriation from a human rights perspective, especially in the context of workers’ rights. Her areas of expertise include immigration, human rights, and the intersection of labor and immigration laws. She regularly teaches Immigration and Naturalization Law and the Immigrants’ Rights/International Human Rights Clinic, and she has also taught International Human Rights Law and Gender and the Law and designed human rights programs in Haiti and Guatemala. At the Immigrants’ Rights/International Human Rights Clinic, she supervises litigation in asylum and relief from removal cases as well as litigation, advocacy and reporting on human rights issues.   

Cite this:

Nessel, Lori. 2013. “Immigration Reform and Health Care: Leaving the Undocumented in the Breach.” Accessed [date] at http://wp.me/pIK8x-zv.

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