Statement by
Thomas Gustafson, Ph.D.
Deputy Director,
Center for Medicare Management
Centers for Medicare & Medicaid Services

Hospitals and Immigration

The Committee on Ways and Means
U.S. House of Representatives

Wednesday, July 26, 2006

Chairman Thomas, Rep. Rangel, thank you for inviting me to speak with you about the Centers for Medicare & Medicaid Services' (CMS) efforts to assist hospitals that provide health care to the uninsured, particularly undocumented immigrants. Use of medical services by undocumented immigrants has been a long-standing issue for hospitals, especially those located along the U.S.-Mexican border. Federal law requires hospitals to medically screen and provide stabilizing treatment or an appropriate transfer to any person seeking emergency care, regardless of payment method or citizenship status.

Under EMTALA hospitals have obligations to any individual, regardless of citizenship, who requests treatment for a medical condition. EMTALA was designed to ensure that people will receive appropriate screening and emergency treatment, regardless of their ability to pay.

CMS' regulations implementing EMTALA require that hospitals with dedicated emergency departments provide an appropriate medical screening examination to any person who comes to the hospital emergency department and requests treatment or examination of a medical condition. They also require that these hospitals provide an appropriate medical screening examination to any person who presents on hospital property requesting evaluation or treatment of an emergency medical condition. In both cases, a request may be made by another individual on behalf of the person for whom examination or treatment is sought or a request can be considered to have been made if a prudent layperson believes that based on the behavior of the individual an emergency medical condition exists. If the examination reveals an emergency medical condition, the hospital must also provide either necessary stabilizing treatment or arrange for an appropriate transfer to another medical facility.

EMTALA applies to all Medicare-participating hospitals with dedicated emergency departments and applies to all individuals who present requesting examination or treatment of a medical condition, not just those who receive Medicare benefits. Hospitals with specialized capabilities have a responsibility under EMTALA to accept appropriate transfers regardless of whether the hospital has a dedicated emergency department. A hospital that violates EMTALA may have its ability to participate in Medicare terminated and may be subject to civil penalties of up to $50,000 per violation. An individual who has suffered personal harm and any hospital to which a patient has been improperly transferred and that has suffered a financial loss as a result of the transfer are also provided a private right of action against a hospital that violates EMTALA.

Hospitals also are required to maintain lists of physicians who are on call for duty after the initial examination to provide necessary stabilizing treatment. Hospitals have discretion to develop their on-call lists in a way that best meets the needs of their patients requiring services required by EMTALA.

Under CMS' regulations, EMTALA does not apply after an individual has been admitted for inpatient hospital services, as long as the admission is made in good faith and not in an attempt to avoid the EMTALA requirements.

Section 945 of the MMA required the Secretary of Health and Human Services to establish a technical advisory group (TAG) to review EMTALA policy, including the regulations and interpretive guidance outlining hospitals' responsibilities under EMTALA. This TAG, which includes hospital, physician and patient representatives, has already met 4 times. The TAG will complete its deliberations and submit a report of its findings and recommendations to the Secretary by October 2008.

Federal Reimbursement of Emergency Health Services Furnished to Undocumented Immigrants
Under Section 1011 of the MMA, Congress appropriated a total of $1 billion to help hospitals and certain other providers cover their otherwise un-reimbursed costs of providing emergency services required under the 1986 Emergency Medical Treatment and Labor Act (EMTALA) to undocumented immigrants. Generally, under EMTALA, hospitals with emergency departments that participate in Medicare must medically screen all individuals who present to the hospital's dedicated emergency department seeking treatment, and must provide stabilizing treatment or an appropriate transfer to any individual requiring emergency care. Section 1011 provides for direct payments to eligible providers for EMTALA-related care to undocumented immigrants that was not otherwise reimbursed. Eligible providers include hospitals, qualifying physicians, and ambulance providers, and may also include Medicare critical access hospitals (CAHs) and Indian Health Service facilities (whether operated by the Indian Health Service or by an Indian tribe or tribal organization). For purposes of the section 1011 program, physician and ambulance providers need not be enrolled in the Medicare Program.

Providers may also qualify for payment under this program for emergency care furnished to immigrants who have been paroled into the United States for the purpose of receiving health care services and to Mexican citizens who have temporary permission to enter the United States. For purposes of section 1011, CMS does not require hospital staff to ask patients directly about their citizenship or immigration status. Instead, CMS developed a Provider Payment Determination information collection form that instructs providers to ask or research some basic questions (e.g., whether the patient is enrolled in Medicaid) and request some documentation (e.g., a border crossing card, foreign passport). It is the provider's responsibility to make a reasonable determination of patient eligibility based on that information.

Section 1011 provides funds for FY 2005 through FY 2008, with $250 million appropriated per fiscal year. Each year, two-thirds of this $250 million, or $167 million, is allocated to the States based on their relative percentages of undocumented immigrants. The remaining $83 million is allotted to the six States with the highest number of undocumented immigrant apprehensions for each fiscal year. In FY 2005 and FY 2006, Arizona, Texas, California, New Mexico, Florida, and New York were the six States determined to have the highest number of undocumented immigrant apprehensions.

Although funds under section 1011 are allocated on a State basis, CMS makes payments directly to providers. These payments are made from each State's allocation and these payments to providers are subject to a proportional reduction if the total amount allocated is insufficient to provide full reimbursement to each provider based on the law's payment formula. This pro-rata reduction ensures that some amount is paid for every provider that makes a qualifying payment request (claim). Payments under section 1011 may only be made to the extent that care was not otherwise paid for (through insurance or another source). Funds are State-specific, and any unused portion allocated in one year may be rolled over to the State's allocation for the following year for use by that State.

For FY 2005, CMS made payments in excess of $58 million to providers under section 1011. Since approximately $192 million allocated for FY 2005 was not paid to providers, those excess funds were rolled over to be used in FY 2006.

To help hospitals and other providers utilize the funding available under section 1011, CMS contracted with TrailBlazer Health Enterprises in July 2005 to administer the program. CMS and TrailBlazer have worked together to develop systems for provider enrollment, claims processing, and payment. TrailBlazer, which processes these claims on a quarterly basis, also conducts outreach and training sessions and maintains a Web site, listserv, and customer service telephone line to update providers on any developments regarding the section 1011 program.

Thank you again for this opportunity to discuss CMS' efforts to assist hospitals that provide health care to undocumented immigrants. I would be happy to answer any questions you might have.

Last Revised: August 3, 2006