ACLU Urges Rhode Island Hospitals to Protect Patients' Privacy

September 21, 2004

FOR IMMEDIATE RELEASE

Accepting New Federal Funding Would Force Health Care Providers to Expose Immigration Status of Patients

PROVIDENCE -- The American Civil Liberties Union of Rhode Island announced today that it has called on local hospitals to reject anticipated earmarked federal funding that would require health care providers to determine the citizenship status of each uninsured patient seeking treatment.

In a recent letter to local hospital administrators, ACLU of Rhode Island Executive Director Steven Brown argued that such an inquiry will likely place both providers and patients in precarious positions and could have a serious and negative impact on the health of undocumented immigrants in the state.

"The pointed questions and demand for invalid documents will doubtless raise fears of legal consequences," Brown wrote. "The unfamiliar hospital environment, language barrier, and possible physical discomfort can only increase anxiety. Some immigrants should be expected to postpone or forgo medical care because of such fears, harming both themselves and general public health."

At issue is the 2003 Medicare Modernization Act, which was enacted last year and is nearing implementation. The law makes $250 million per year in federal funds available for four years to compensate health care providers for the cost of caring for undocumented immigrants.

According to the ACLU, draft guidelines prepared by the federal agency administering the program require health care providers to obtain and submit "acceptable evidence" of a patient's illegal status, but does not offer confidentiality protections for the information provided. Because of the negative impact such guidelines could have on immigrant health, the ACLU as well as such diverse groups as the National Immigration Law Center and the American Hospital Association have objected to the proposal.

The ACLU's letter noted that alternative approaches to providing information - using statistical models, for example - have been suggested by concerned commentators as a way of fulfilling the law's goal without invading the privacy of patients or discouraging some immigrants from seeking needed health care. However, the ACLU cautioned that it is uncertain whether a less intrusive approach will be adopted.

In anticipation of adoption of the federal agency's guidelines, the ACLU letter urges hospital administrators in Rhode Island to forego acceptance of the federal funding if immigrant status determination is a condition of receipt of those funds.

An example of the letter, which was sent to administrators throughout the state, follows:

September 13, 2004

Dear [Hospital Administrator]:

I am writing in regards to a new provision of the 2003 Medicare Modernization Act (MMA) that we fear will have a serious and negative health impact on undocumented immigrants in the state.

You may be aware that a provision in this new federal law, referred to as "Section 1011," makes $250 million per year in federal funds available for four years to compensate health care providers for the cost of caring for undocumented immigrants. But because compensation depends on a patient's undocumented status, providers wishing to obtain a share of this funding may be forced to perform invasive questioning to make a "citizenship determination" for each uninsured patient, a requirement that the ACLU - and the American Hospital Association - strongly opposes.

Currently, the EMTLA obligates providers to treat patients without asking about their non-medical personal histories before the onset of care. The Act has served as de facto protection for immigrants, who could be assured that they would not need to answer questions about their immigration status when visiting a hospital. Only those uninsured patients who voluntarily applied for Medicare or Medicaid after receiving care were asked to prove citizenship.

The new MMA program, however, will require providers to make a "citizenship determination" for each uninsured patient for the purposes of reimbursement. To assist providers, the Centers for Medicare and Medicaid Services (CMS) will soon be releasing an approved documentation method based on a policy statement that went to hearing last month. You can expect to receive the instructions within a few weeks.

Details pending, the ACLU believes the inquiry will likely place both providers and patients in deleterious positions. Under the draft guidelines prepared by CMS, providers would be charged with obtaining "acceptable evidence" of a patient's illegal status, which could include an invalid drivers' license or foreign passport. Such evidence is to be solicited even after a patient has repeatedly refused to answer questions about his or her legal status.

Patients, of course, will find the process even more traumatic. The pointed questions and demand for invalid documents will doubtless raise fears of legal consequences. The unfamiliar hospital environment, language barrier, and possible physical discomfort can only increase anxiety. Some immigrants should be expected to postpone or forgo medical care because of such fears, harming both themselves and general public health.

Also troubling is the Act's lack of confidentiality provisions. Providers are instructed to share their citizenship determinations with physicians and ambulance companies who might also be eligible for reimbursement. In the case of an audit or integrity review, the provider would need to disclose all records to CMS. There are no protections against other types of disclosure; clearly, an undocumented immigrant should have reservations about admitting his or her status to an interviewer with unlimited ability to share it.

Alternative approaches to providing this information - using statistical models, for example - have been suggested by concerned commentators as a way of fulfilling Section 1011 without invading the privacy of - and possible scaring away - patients in need of hospital care. However, it is quite uncertain whether CMS will adopt this approach. The agency may be counting on the financial "carrot" that Section 1011 dangles before hospitals to obtain their cooperation in this troubling enterprise.

In sum, Section 1011 of the Medicare Modernization Act offers significant cause for concern. We want to urge you, as a provider, to carefully consider what participation in the program will entail, and to reject any funding that requires hospitals to keep documentation on the immigration status of patients. The CMS has released a provider enrollment from that you may be filling out in the near future. This form establishes your eligibility for the program, but does not commit you to participate. Please carefully evaluate the data collection policy that CMS will be releasing shortly. We don't think that any person should face fears of exposure or persecution when seeking medical attention. We are hopeful that you will agree.

Once the new guidelines are released, we would be interested in learning whether your hospital plans on accepting any funds under the program. Thank you in advance for your attention to this urgent matter, and we look forward to hearing back from you about it.

Sincerely,

Steven Brown

Executive Director

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