Prevention and Punishment: Barriers to Accessing Health Services for Undocumented Immigrants in the United States

Abstract

Undocumented immigrants face significant challenges in accessing health care. Throughout the United States, these challenges may relate to the structure of the public health system in which the undocumented find themselves. In addition, local, regional, and national practices aimed at targeting immigrants for deportation or other non-health reasons may serve to punish them for seeking health services or care. Spain and the United Kingdom serve as useful case studies in comparing the ability of the undocumented to seek health services in Europe and the United States. Overall, promoting access to comprehensive health services for the undocumented should be a national priority, along with analysis of any immigration-related laws or policies for potential harmful impact on health care access.

1. Introduction

Throughout the United States (U.S.), a striking tension has evolved between the public health systems that seek to provide basic health services to those in need, including undocumented immigrants, and the criminal justice and immigration authorities that seek to apprehend and deport undocumented immigrants. Two European nations provide an instructive contrast to the U.S. system, the United Kingdom and Spain. Both nations contend with a similar struggle between public health systems that seek to care for undocumented residents and immigration and criminal justice systems that pursue their own priorities. Spain bears a greater burden of providing care for newly arrived undocumented persons, while the United Kingdom faces the challenge of integrating the undocumented into a national health service. In some respects, the challenges that greet the undocumented who seek care in Spain (as well as Greece, Malta, and Italy) are analogous to those faced by undocumented persons in U.S. states along the border with Mexico. Central to all of these settings is the backdrop of national health policy; provision of comprehensive care to the undocumented is more challenging in settings that lack widespread access for those who are documented.

In additional to the national approach to health care access for the undocumented, a second level of analysis is required to examine ways in which local and regional policies may impact care for the undocumented. Local municipalities may develop immigration policies that deter and, in some cases, even punish the undocumented from accessing health care. In the United States and several European nations, policies have been proposed and sometimes implemented that would punish undocumented immigrants for seeking basic health services. Again, the U.S., Spain, and the United Kingdom serve as helpful examples in this discussion.

These broad distinctions between nations or between punishment and public health approaches are not uniform, however. In settings where undocumented immigrants are broadly excluded from health care access, there may be limited efforts to promote access to certain types of care, such as emergency departments and labor and delivery care. Conversely, in nations with a systematic acceptance of the need for health services for the undocumented, local or regional policies may be developed that are aimed at restricting access. As undocumented immigrants are poorly represented in most surveys and studies of population health, the health outcomes associated with these approaches are difficult to assess.

2. Overall Access: United States

In recent years, substantial research has been conducted on the access of undocumented immigrants to health services in the U.S. and Europe. In the U.S., no general mandate for general health care coverage exists, thus, undocumented immigrants do not have the opportunity to be a part of a national insurance plan. Roughly 60% of undocumented immigrants in the U.S. are without health insurance, representing almost 15% of all uninsured persons in the U.S. [1]. Importantly, undocumented immigrants represent approximately a much larger proportion of the total population in the U.S. than in Europe: they are 3% of the total U.S. population, as opposed to 0.3%–1.5% of the total population of most European nations [2]. The larger proportion of undocumented persons living in the U.S., combined with the high baseline rate of uninsured persons, results in high rates of utilization of emergency department (ED) care.

The legal basis for provision of care for undocumented individuals in emergency departments in the U.S. is the same as that of the uninsured: the 1986 Emergency Medical Treatment and Active Labor Act (EMTALA). EMTALA mandates that “any patient arriving at an Emergency Department (ED) in a hospital that participates in the Medicare program must be given an initial screening, and if found to be in need of emergency treatment (or in active labor), must be treated until stable [3].” The overall model of health care in the U.S. has traditionally left the care of 45 million uninsured individuals to ED’s, and yet the relatively small numbers of undocumented patients (who are only rarely a source of reimbursement) have been a common target for political concerns. However, limited avenues are available for hospitals to seek reimbursement for care of the undocumented, and this reimbursement is generally limited to emergency and obstetric care [4]. A specific portion of the Medicare Modernization did provide dedicated reimbursement for care provided to undocumented patients, though with the exact same criteria set forth in EMTALA. That funding stream has been exhausted for 28 states and will likely soon expire for remaining states [5]. As most aspects of care for undocumented patients do not result in a claim for reimbursement, the overall financial costs of this care is difficult to quantify [6].

Although this central insurance challenge for undocumented persons in the U.S. is shared with tens of millions of other uninsured residents, the uninsured in the U.S. have been excluded from the impending reform to the U.S. healthcare system—the Affordable Care Act (ACA). The ACA will come into effect January 1, 2014, with the goal of ensuring that almost all U.S. residents will have health insurance. However, the ACA explicitly excludes undocumented persons from most aspects of coverage, but continues existing allowances for emergency care and access to community health centers [7]. Thus, undocumented persons in the U.S. are likely to represent a net financial loss for most health systems. Given the exclusion of undocumented immigrants from the ACA, their utilization of care will likely continue to heavily rely on responding to emergencies, with limited use of preventive health and mental health services.

3. Overall Access: Europe

In Europe, because most nations have universal health coverage for all residents, the primary question in assessing the access to health care available to undocumented immigrants is whether or not this subsidized health care is also afforded to them. Multiple reports on health care access in Europe have categorized access to care by undocumented immigrants into three general categories: nations that provide full access to health care to undocumented immigrants, nations that provide only partial access, and nations with no access available beyond emergency care [2,8]. France, Italy, the Netherlands, and Portugal all offer nearly full access to health care to undocumented immigrants. Nations with either partial access or no access to health care (beyond ED services) include Austria, Belgium, Denmark, Germany, Greece, Hungary, Lithuania, Poland, the United Kingdom, Finland, and Sweden. For nations that provide less access to health services, there are similar pressures to further reduce access for undocumented persons, particularly as part of austerity programs in financially challenged states [9]. The rise of nationalist, anti-immigrant political parties, such as the Golden Dawn in Greece, help to advance the narrative that the undocumented should not be afforded costly health services while other residents contend with austerity measures [10].

4. Spain

Spain shares some similarities with states in the U.S. that are situated on the border with Mexico. Geographic proximity to Africa and the Middle East places Spain (together with Greece, Italy, and Malta) at high likelihood of receiving undocumented immigrants directly from their countries of origin, often with pressing health needs. These patients arrive and place significant burdens on the resources of safety net hospitals and other health systems. Until recently, Spain provided comprehensive health services to the undocumented [11]. However, the Spanish government of Prime Minister Mariano Rajoy recently passed a decree that severely restricts access to health care for undocumented immigrants. Specifically, the decree limits foreign women to the right to public health care during pregnancy, childbirth, and the post-partum period, regardless of their legal status in the country, and all undocumented immigrants under the age of 18 the right to free health care “in the same conditions as Spanish citizens.” Undocumented immigrants over the age of 18 are only eligible to receive “emergency health care in cases of serious illness or accident due to any cause, until they are medically discharged.” The non-governmental organization, Doctors of the World, has already identified cases in which patients died after being refused care [12]. The Spanish government claims that undocumented immigrants had been “overburdening” the health care system in Spain and that cancelling the health cards of 873,000 undocumented immigrants will save the country 500 million Euros [13]. However, patients who face barriers to screening, diagnosis and treatment of sexually transmitted infections, tuberculosis, depression, and many other easily treatable health problems will now be more likely to go without care and present to Emergency Departments with advanced pathology. The consequences of this will include greater morbidity and mortality for this group of vulnerable patients and dramatically increased costs for their care. In at least one region of Spain, Galicia, local officials are attempting to bring undocumented persons into existing health services, in an effort to promote health and circumnavigate the national decree [14].

5. United Kingdom

In the nations of the United Kingdom, healthcare is generally free to residents at the point of service, with funding raised by general taxation. The National Health Service coordinates care, which is heavily reliant on general practitioners as the primary points of entry into the health services of the U.K. These general practitioners serve as the gatekeepers for specialty care, diagnostic testing, and hospitalization. Access to Emergency Departments is an area of care that the undocumented may access without any concern for billing before care is delivered. In general, undocumented persons in the UK can access care through general practitioners, however, these providers may charge a fee for their services. Often, these fees will be submitted after care has been delivered, so as to acknowledge the necessity for the care. In addition, although these providers are not asked to attest to the residence status of individual patients, this practice is technically in violation of UK laws for all undocumented persons except asylum seekers [15]. Unlike the U.S. system, however, where medical providers sacrifice some share of their income for providing this type of care to the undocumented, the salaries of individual general practitioners are not adversely impacted when they care for undocumented patients.

6. Seeking Care and Punishment

While the foundation for undocumented immigrants accessing health services is set by national health policies, there are many non-health policies and practices that may serve to prevent or punish undocumented persons from seeking care. Some of these barriers are direct, such as using health settings as venues for detention. Other practices, such as criminalizing possession of condoms, may not be designed to target the undocumented, yet exert a negative effect on the ability of the undocumented to seek preventive health services or care.

As immigration authorities seek to detain and deport the undocumented, they sometimes seek to enact practices that directly criminalize the accessing of health services. In the U.S. state of Arizona, legislators seek to pass a law that would force health providers to check immigration status among patients [16]. While this bill would not supersede the Emergency Medical Treatment and Active Labor Act (EMTALA), it could discourage immigrants from seeking care and raise concern amongst the immigrant community about hospitals reporting a patient’s immigration status to immigration officials. This practice, termed ‘denouncation’ is in place in several European nations. In the UK, there is no mandate that health providers denounce their patients but several examples of local practices to this effect have been reported [16,17].

A corollary to this attempt to make hospitals responsible for the immigration status of their patients is the effort to punish those who provide emergency services to undocumented immigrants in border crossing zones. The high rates of mortality and morbidity among immigrants crossing into the U.S. through the U.S.-Mexican border has led to the organizations of citizen’s groups, such as No More Deaths, that provide emergency medical supplies, water, blankets, and other supplies to individuals crossing the border. Several members of these groups have been arrested on charges that vary from littering, to obstruction of justice, to smuggling [18,19]. A proposed change to the Spanish legal code could lead to similar punishment of individuals in Spain who come to the aid of sick or vulnerable border crossers [20].

A widespread concern for the undocumented is that the hospital they find themselves in may elect to deport them in an extra-judicial manner. Due to the scant financial support for care provided to undocumented immigrants, some hospitals have taken the approach of privately deporting the undocumented to their home nations, circumventing legal immigration procedures and, sometimes, leading to catastrophic health outcomes [21]. This practice often results in gravely ill patients being deposited into settings where there is little promise of receiving the same level of care. Even when roughly similar health services are available, they may require cash payment, virtually guaranteeing that the patient will not receive care and may die [22].

An even more routine approach that some criminal justice and immigrations officials have taken is to simply search for the undocumented in places where they are known to receive health services. In the U.S., the Federal government supports a network of approximately 150 migrant health clinics across the nation. These clinics are often part of larger community health centers and provide much of the care that undocumented individuals seek. In multiple states, immigration authorities have used these clinics as sites for enforcement and removal actions, by parking near clinics to capture undocumented patients or by creating checkpoints on roads that lead to these clinics. The predictable avoidance of these settings has eliminated the sole source of medical care for many undocumented immigrants, particularly in the states of Florida, Alabama, and Georgia [23].

The expansion of areas in which the undocumented are apprehended and pursued has led to a narrowing of safe places for them [24]. Inevitably, these efforts have the effect of indirectly punishing undocumented immigrants as they engage with treatment or preventive health services. In the state of Texas, newly implemented legislation requiring all elective pregnancy terminations to occur at surgical centers (as opposed to outpatient clinics, which are the traditional setting) had the effect of forcing women to drive outside their local communities to hospital centers that were outside the Rio Grande Valley. This drive would take women past immigration check points, an unacceptable risk for many [25].

Another area of indirect punishment of undocumented immigrants is the criminalization of condom possession. The path of young women coerced into sex trafficking from Mexico and other nations to the streets of the U.S. is well documented. Many of these women find themselves beaten and raped many times per day, find themselves with substance abuse problems, and possess little agency over any part of their lives, particularly because they are undocumented [26]. One of the few things women in this circumstance may be able to do for themselves, however, is to gain access to condoms to prevent sexually transmitted infection or unwanted pregnancy. Condoms are one of the most prolific and evidence-based interventions in the history of public health however an analysis conducted by Human Rights Washington in Washington D.C., New York City, San Francisco, and Los Angeles found that police routinely confiscate condoms from persons stopped for suspicion of sex work and that these condoms were often used as evidence of sex work in documents prepared for prosecutors. Many persons contacted in the Human Rights Watch analysis reported carrying fewer or no condoms in response to these policies. Some of these jurisdictions have taken measures to prohibit these practices by police [27].

A final set of policies that have an indirect impact on the health of undocumented persons is the widespread adoption of local ordinances that prohibit the provision of housing or safe harbor to the undocumented. These policies were first developed in Hazelton, PA, and have been adopted in numerous states of the U.S., including Arizona, Georgia, and Alabama [28]. Victims of domestic violence are often screened and referred to domestic violence shelters when discharged from hospital. The existence of a safe place for medical recuperation and engagement with a broad array of social and mental health services is an integral part of recovery from domestic violence. These shelters are even more essential for undocumented immigrants, many of whom may be victims of trafficking and lack any housing or support other than that of their abuser. Federal guidance to U.S. Immigration and Customs Enforcement officers and immigration judges has been to avoid shelters as sites for enforcement, and to support victims who seek claims of relief based on their status as victims of domestic violence, including the recently renewed Violence Against Women Act (VAWA) [29].

A key component of VAWA is to mandate that immigration status is not assessed or asked about during the critical mission of providing care to victims of domestic violence. Despite this Federal mandate, organizations that operate domestic violence shelters report widespread confusion about which of their services may run afoul of new local laws despite apparent Federal support [30]. This confusion will likely lead some women to avoid seeking care and services that they need [31].

Arizona has recently enacted another local ordinance that significantly increases the challenges that undocumented immigrants face in accessing health care. Undocumented immigrants are now banned from receiving a driver’s license, with this ban applying to highly vulnerable immigrant populations, including victims of domestic violence and human trafficking, who are granted legal status under President Barack Obama’s Deferred Action Plan. These individuals will now face enormous challenges in finding work and earning livelihoods, but also in accessing health care services [32].

Interpreting the consequences of these policies that impact health care access is a complex task. In general, the undocumented in the U.S. consume less overall health resources and generate fewer overall health costs than either established immigrants or non-immigrant residents [33]. Similar analyses have been reported from Europe. However, policies that drive patients away from primary care and towards Emergency Departments as their primary care setting lead to more acute presentations of chronic illness and more costly care overall. This approach, which represents the model for many of the uninsured in the U.S., may become the approach for care in European nations that reduce or impede health services access for the undocumented.

In Spain, the denial of care for undocumented immigrants with a high burden of preventable and treatable disease will translate into greater morbidity and mortality for those individuals. If the government of Spain can successfully transfer these people out of Spain before the consequences of this denial of care become apparent, then they may, in fact, save money by denying care. Many undocumented persons who arrive in Spain will seek to relocate to other EU nations, thus, transferring the long-term costs of denial of health services to those nations. In addition, Spain is actively engaged with Morocco and other nations to increase deportations of undocumented persons back across the common border and in some cases, back to their country of origin. This increase in deportations coincides with an increases in the militarization of the Spain-Morocco border and in reports of human rights abuses against this same population by Moroccan security forces [34,35]. In particular, these reports document the use of physical beatings as a disincentive for persons seeking to cross the border from Spain to Morocco. As a result of these actions (and others), the flow of the undocumented across this border has slowed and although some undocumented persons still risk this path from Africa to the EU, most are now entering through Greece [36].

7. Recommendations

To reduce barriers to health care services for undocumented immigrants they should be granted access to a full spectrum of preventative health care services. Access to preventative services would dramatically increase health outcomes for undocumented immigrants and would limit their reliance on emergency department care. For example, cervical cancer is the third most common cancer amongst women, and South America is classified as a high-risk region, with an age-standardized rate of 23.9 per 10,000 [37]. Countries, such as Nicaragua, Honduras, El Salvador, and Bolivia, are all among the countries with the top 20 highest incidence of cervical cancer [38]. With early detection and treatment, cancer mortality can be reduced. Cervical cancer screening through a Papanicolaou (PAP) test is cost-effective and affordable and such preventative care should be made accessible to undocumented populations. A 2005 study on the impact of U.S. citizenship status on cancer screening among immigrant women found that U.S. citizen immigrants were significantly more likely to have had a PAP test or mammogram than non-U.S. citizen immigrants. The study concluded that “not being a U.S. citizen is a barrier to receiving cervical and breast cancer screening [39].” Overall, immigrants with health insurance have significantly lower medical expenses than insured U.S.-born residents, so incorporating the undocumented into the pool of insured immigrants may be less costly than expanding health insurance coverage for other residents [39].

In Europe, immigrants from countries with high HIV prevalence represent a significant portion of diagnosed HIV cases in the European Union (EU) and approximately 35% of new heterosexual infections in the EU were diagnosed in immigrants from sub-Saharan Africa. Undocumented immigrants in Europe with HIV/AIDS are highly vulnerable, yet have very limited access to health care services. Such preventative care and treatment should be made readily available to undocumented immigrants [40]. An important consideration is that health services not be delivered in a punitive or coercive fashion, such as mandatory HIV testing that has been reinstated as a practice in Greece [41]. In these cases, patients were tested for multiple infectious diseases against their will and their results were made public. These actions engender fear and mistrust of all health services for the undocumented and he long-term consequence of these forced tests is quite similar to outright denial of care; undocumented persons who are less likely to engage in health services.

In addition to national policies that grant undocumented immigrants access to comprehensive health services, there is a pressing need to address the web of local policies and ordinances that have been passed in the U.S. and EU nations that hamper access to care. The American Medical Association adopted a resolution in 2011 opposing the criminalization of provision of medical care to undocumented immigrants [42]. While this resolution is a starting point for guiding medical professionals, what is needed is a mandate that new legislation and ordinances relating to immigration certify that the law or policy will not adversely impact the health of the undocumented. This standard exists for construction projects throughout the U.S. and EU nations, whereby a new shopping mall or housing complex must show their environmental impact assessment, which is then reviewed, before approval can be given. Thus, should local, regional and national legislation in the area of immigration also be compelled to assess the potential impact on health care access before approval can be considered?