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Wendy E. Parmet, "Immigration and Health"

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December 12, 2017

The Sixth Annual Health Law Year in P/Review symposium featured leading experts discussing major developments during 2017 and what to watch out for in 2018. The discussion at this day-long event covered hot topics in such areas as health policy under the new administration, regulatory issues in clinical research, law at the end-of-life, patient rights and advocacy, pharmaceutical policy, reproductive health, and public health law.

For more information, visit our website at: http://petrieflom.law.harvard.edu/events/details/sixth-annual-health-law-year-in-p-review

Published in: Health & Medicine
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Wendy E. Parmet, "Immigration and Health"

  1. 1. Immigration and Health Care: Access Under the Trump Administration Wendy E. Parmet
  2. 2. Immigrants & Health Immigrants are: - Younger - Healthier - Utilize fewer health resources - Less likely to have access to primary care - Less likely to be insured - Ineligible for many public insurance programs
  3. 3. Legal Barriers • Personal Responsibility and Work Opportunity Reconciliation Act • Bars nonimmigrant non-citizens and undocumented immigrants from federally-funded health benefits; except for for public health and emergency services. • Bars most classes of authorized immigrants (excluding refugees) from receiving federally-funded health benefits for 5 years. • Other federal laws permit coverage for children and pregnant women. • Affordable Care Act • Did not repeal or modify PRWORA • Excludes immigrants who are not “lawfully present” from participating on the exchanges • Did not cover Dreamers • Imposed new verification requirements.
  4. 4. “Repeal and Replace” Efforts • Would have limited premium support to those who are qualified under PRWORA, a narrower class of immigrants than those covered by the ACA, which requires only lawful presence. • New verification requirements would have threatened coverage for immigrants otherwise entitled to coverage • Repeal of Medicaid expansion would hit the immigrant community especially hard.
  5. 5. Community Health Centers • Congress has failed to renew vital funding for community health centers – funding that accounts for 70% of community health center grant dollars. • Continued uncertainty about funding poses an especially significant threat to immigrants who otherwise lack access to care. • Recent analyses estimate that as many as 9 million patients could lose care due to lack of community health center funding.
  6. 6. Public Charge Determinations: Draft EO • In January 2017, a draft Executive Order was leaked that, if implemented, would have drastically changed the way in which public charge determinations are made. • Under the draft order, the use of health benefits would have constituted a public charge that would render an immigrant deportable. • The draft order also instructed DHS to seek reimbursement for benefits used by immigrants from their sponsors.
  7. 7. Climate of Fear A poll conducted by the Migrant Clinicians Network found that two thirds of clinics that responded claimed that immigrants were reluctant to seek healthcare following the election. Clinicians report a dramatic increase in the number of immigrant patients who choose not to attend their health care appointments. Deportations are up 25 %.
  8. 8. The Case of Rosamaria Hernandez • 10 year old Rosamaria Hernandez was stopped at a Texas Border Patrol checkpoint while en route by ambulance to a hospital for emergency gall bladder surgery. • Agents followed Rosamaria’s family to the hospital and proceeded to wait outside her room until she was released. • The agents detained Rosamaria after failing to persuade her family to sign a voluntary departure form for her and have her transferred to a hospital in Mexico. • The ACLU successfully sued arguing that the government violated federal law on unaccompanied minors and endangered her health.
  9. 9. Hospitals as Sensitive Locations • Both ICE and CBP recognize hospitals as sensitive locations, meaning they are typically avoided by immigration officers seeking to conduct enforcement actions. • As a matter of policy, ICE will not conduct an enforcement action at a sensitive location unless the action is approved by a designated official. • Officials “will give special consideration to requests for enforcement actions at or near sensitive locations if the only known address of a target is at or near a sensitive location.” • Exception: “exigent circumstances” • These are only guidelines.
  10. 10. Privacy Protections of Medical Information • Immigration status is Protected Health Information (PHI) under HIPAA • A health care entity may not disclose PHI to law enforcement, including ICE, in the absence of proper documentation. • A health care entity may, but is not required to disclose PHI if it is requested by a warrant, subpoena, or signed administrative warrant. • Most ICE warrants are administrative requests, which are not signed by judges. Health care providers need not disclose PHI unless they are presented with a warrant signed by a judge.
  11. 11. Health Care Conditions in Detention Facilities • In 2016, Human Rights Watch report on medical practices in immigration detention facilities, cited an “overreliance on unqualified medical staff, delays in emergency responses, and requests for care unreasonably delayed.” • Privately-owned detention facilities are highly variable in terms of the quality of their health care services. Members of Congress have cited one facility for “egregious” medical errors. • The Trump Administration seeks to expand their use.
  12. 12. Garza v. Hargan • Jane Doe, 17 years old and pregnant, was apprehended and placed in detention after attempting to cross the the border in Texas. • When she asked for an abortion, federal officials cut off her access to the procedure. • The ACLU sued on her behalf. DOJ argued that the government is not obligated to facilitate access and “may legitimately express a preference for childbirth over abortion.” • In October, the D.C. Circuit en banc issued an order allowing Doe to obtain an abortion. • In dissent Judge Henderson questioned whether undocumented immigrants have a constitutional right to an abortion. • DOJ has sought S.Ct. review and has accused Doe’s lawyers of misconduct.
  13. 13. 2018: Some Predictions • Reduced access to care by immigrants of all legal statuses. • Increasing rates of untreated health conditions. • Increases in uncompensated care (regardless of the fate of the ACA). • Challenges to the health privacy of immigrants, with troubling implications for physician-patient relationship. • Additional instances in which contentious health care issues are debated in the context of immigration.

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