Medical deportation: Undocumented/Unfunded patients removed from the U.S.

1. Medical deportation:Undocumented/Unfunded patients removed from the U.S. Lisa Palumbo Caroline Chapman October 2012

2. Medical Repatriation vs. Medical Deportation? • Medical Repatriation: • Returning a non-citizen to their home country based on their wishes. Medical repatriation can allow non-citizens to move closer to relatives and a familiar culture while they receive long-term care. However, it can raise concerns if people are sent to facilities that cannot adequately meet their medical needsor they feel pressured to return. • Medical Deportation: • Transferring patients with disabilities (usually uninsured and undocumented) who have significant long-term care needs, outside the United States, either • (1) directly from a healthcare facility, or • (2) through a court order, and • (3) without the informed consent of the individual involved.

3. The Dilemma Medical repatriation/deportation can create tension among the parties involved: • Between hospital staff and the patient; • Between staff and the patient’s family and friends, or legal guardian; • Between the patient and his or her own Government.

4. When medical repatriation becomes deportation • When the patient does not consent to return, repatriation is effectively a deportation from the United States. • When it interferes with the federal government’s exclusive authority to remove non-citizens from the United States.

5. How does medical deportation play out in the healthcare setting? • Patient is admitted to an acute-care hospital under EMTALA; • Patient’s condition stabilizes and acute case is no longer need. Patient still needs long-term care either at home or in a nursing facility; • Patient is ineligible for insurance/Medicaid after possible emergency Medicaid is no longer applicable; • Hospital may not discharge patient “to the street.” Must provide an appropriate discharge plan under federal law; • Hospital petitions the court for a guardian for patient and, once obtained, petitions the court to approve a discharge plan removing the patient from the U.S.

6. Applicable statutes and regulations • EMTALA 42 USC §1395dd: • Bars hospital from “dumping” uninsured/undocumented patients • Gives private right of action, but obligation on hospital ends once “stabilized” • Medicare Condition of Participation § 482.43(c) • Requires hospital to develop discharge plan to “adequate” facility, even for stabilized patients • Gives no private right of action • Federal Immigration law 8 U.S.C. § 1103(a)(1). • The jurisdiction for such proceedings lies with the Department of Homeland Security, usually carried out through the Executive Office for Immigration Review, our national immigration court system.

7. Central legal issues related to Medical Deportation • Whether discharge to a facility abroad had the patient’s informed consent? See 42 USC §13xx 42 C.F.R. § 482.43(c)(7). • Whether discharge and transfer to a facility abroad implicates federal immigration law?See 8 U.S.C. § 1103(a)(1). • Whether the discharge and transfer will be to an appropriate facility that can meet the medical needs of the patient?See 59 Fed. Reg. 64149.

8. Medical Deportation: The Case of Luis Jimenez • Luis Jimenez was an undocumented Guatemalan national, working in Florida. He is a Mayan Indian, originating from the highlands of Guatemala; • A drunk driver in stolen truck struck Luis; • Luis was brought to Martin Memorial Medical Center on 2/28/00 in a coma with brain damage; • Luis was later adjudicated incapacitated by a Martin County court; • The Court appointed his cousin (Gaspar Montejo) as his legal guardian; • When Luis’s condition stabilized, Martin Memorial determined Luis was “ready for discharge” (He had emerged from coma with serious physical/cognitive deficits.) • (cont.)

9. The Case of Luis Jimenez • Martin Memorial transferred Luis to a long-term care facility; • Luis was later returned to Martin Memorial for emergency services; • Luis’s family could not take him home in Florida; • Martin Memorial began efforts with Guatemalan Consulate to send Luis back to Guatemala; • Martin Memorial & Guatemalan Consulate agreed to find another guardian and facility; • Guatemalan Health Ministry promises free care; • Luis’s U.S. guardian, Gaspar Montejo, refused to consent to the transfer; • Cont.

10. The Case of Luis Jimenez • June 2002, Martin Memorial sought a court order in guardianship case to allow medical repatriation without consent; • Court authorized transfer after one-and-a-half-day hearing; • Court ordered guardian Montejo to “refrain from frustrating the hospital’s discharge plan to relocate [Jimenez] back to Guatemala under the authority and guarantee of the Guatemalan Ministry of Health”; • Montejo appealed court decision immediately; • Meanwhile, Martin Memorial flew Jimenez to Guatemala on private air escort service at a cost of $30,000; • Luis is admitted to a rehabilitation facility, but then evacuated; • His family in Guatemala took Luis to another facility that refused to admit him for unclear reasons; Luis is then taken home to his mother, where he remains.

11. Luis Jimenez in Guatemala Now 37, Mr. Jiménez, who cannot walk and has the mental age of a child, lives in a one-room house in a remote village, tended by his elderly mother. He is largely confined to his bed and suffers from routine seizures. When The NY Times visited him in the summer of 2009, he had not received medical care for over five years.

12. Luis Jimenez’s Legal Challenges CASE 1 Guardian Montejo appeals the transfer order (even though Martin Memorial had already transferred Luis), challenging Circuit Court’s authority to order the medical transfer. Florida Appellate Court holds the order was outside the state courts’ jurisdiction, was tantamount to deportation, and preempted by federal law. See Montejo v. Martin Memorial Medical Center, 874 So.2d 654 (2004). CASE 2 Guardian Montejo sues Martin Memorial for false imprisonment of Luis through its transfer of him. Florida Appellate Court holds that Martin Memorial can be liable if its actions in the transfer were unwarranted and unreasonable. At trial, the judge instructed jurors that the appellate court had already found three of the four requirements for false imprisonment. The jury finds Martin Memorial’s actions did not meet the fourth prong, that its actions were unwarranted and unreasonable under the circumstances. See Montejo v. Martin Memorial 874 So.2d 654 (2006). • See Jury Rules for Hospital That Deported Patient. Deborah Sontag. New York Times, July 27, 2009 http://www.nytimes.com/2009/07/28/us/28deport.html

13. Recent medical deportation cases in Illinois The case of Quelino Ojeda Jimenez • QuelinoOjeda Jimenez arrived in Chicago in August 2010 and began working in construction on a building near Midway Airport. Ojeda pulled hard on a sheet of metal, fell more than 20 feet to the ground, was rendered quadriplegic. • Quelino remained in the Oak Lawn hospital until 12/22/10, when he was ushered to an air ambulance that took him to the Mexican city of Oaxaca. He remained in a small-town hospital incapable of meeting his needs. • Quelino died in January 2012. • See Quadriplegic immigrant dies after Chicago-area hospital returned him to Mexico, Chicago Tribune, January 04, 2012|By Becky Schlikermanhttp://articles.chicagotribune.com/2012-01-04/health/ct-met-quelino-death-20120104_1_quelino-ojeda-jimenez-mexican-family-mexican-hospital. • See also 02/07/2011Oaxacan odyssey, photographs of Tribune photographer’s trip to Oaxaca, where Quileno came from. http://newsblogs.chicagotribune.com/tribune-photo-nation/2011/02/for-almost-four-months-doctors-and-nurses-at-advocate-christ-medical-center-cared-for-the-young-mexican-laborer-who-had.html

14. Medical deportation cases in Illinois The Case of Barbara & Peter Latasiewicz • Barbara is a Polish national who entered U.S. on tourist visa in 1990 with her then-15 year-old son Peter after husband abandoned them. • Barbara never returned to Poland. She lived and worked in Chicago suburbs as a housekeeper. • In September 2009, Barbara suffered a severe stroke while working, and was taken to Adventist LaGrange Memorial Hospital. She was eventually stabilized. • Barbara remained in Adventist Hospital for 2 ½ years: • Ineligible for Medicaid or Medicare • No long-term care facility would take her • Son (now a U.S. citizen with 2 children) was bankrupt after business failed and could not afford her care.

15. The Case of Barbara & Peter Latasiewicz • Hospital petitions for the Office of State Guardian (OSG) to be appointed as Barbara’s Guardian; Court so orders in June 2010; • February 2012, Hospital files petition to transfer Barbara to stroke unit of university hospital in Krakow, Poland. (Polish hospital never informed the stroke was over 2 years prior and Barbara no longer in need of acute care); • OSG files motion to dismiss motion for transfer, based generally on preemption grounds. Barbara tells her guardian and her son that she does not want to go. She said she feels she “had no alternative.” Her only family in Poland: a brother she had not seen in 20 years; • Probate Court grants Hospital’s motion. Orders OSG to consent to Barbara’s removal from U.S.; • March 2012, Hospital flies Barbara to Krakow on medical flight; • The Office of the State Guardian chose not to appeal the decision to approve the transfer order in Barbara’s case; • After Barbara’s departure, with LAF, U.S. citizen son Peter files Motion to Reconsider Court’s order on preemption grounds and other claims, including the significant immigration consequences resulting from her departure;

16. Barbara’s case drew local and national attention. • Rock Center with Brian Williams: Permanent Patients http://www.msnbc.msn.com/id/21134540/vp/47150792#47150792 • Chicago Tribune, Polish Immigrant Headed Home, http://articles.chicagotribune.com/2012-03-01/news/ct-met-polish-immigrant-goodbye-20120302_1_hospital-staff-poland-adventist-midwest-health. Photo gallery, http://www.chicagotribune.com/news/local/chi-110916-polish-immigrant-pictures,0,4126857.photogallery; • Chicago Tribune, Ready to Leave but Nowhere to Go. http://www.chicagotribune.com/videogallery/64804299/News/Ready-to-leave,-but-nowhere-to-go

17. Peter’s Motion to Reconsiderthe transfer order Peter’s legal claims • Probate Court did not have authority to approve a discharge plan removing Barbara from the U.S.; • Such an order constituted a de facto removal because Barbara did not consent to return to Poland but was forced by order of the court to leave the U.S.; • Probate Court’s order was preempted by US immigration law, as issues of removal are the subject of federal field preemption, meaning state may not act within the area at all. As most recent preemption case, see Arizona v. U.S., 132 S. Ct. 2492 (2012); • Case was not moot even though Barbara no longer in the U.S. because Barbara is now subject to penalties barring her return to the U.S. for 10 years, to which she would not have been subject if she had remained in the country.

18. Barbara in Illinois and Barbara today • Shortly after admission to Krakow hospital, transferred to another nursing home in Krakow, then to another nursing home in the town where she grew up, hours from Krakow. None of her family or friends lives in this area; • Barbara now ineligible to return to the U.S. for 10 years, even if Peter files for her to come to the U.S.

19. Legal Issues in Medical Deportation • Standing • Third Party Standing (arose because Barbara was already out of the country) • Struck v. Cook County Public Guardian: Illinois decision questioning ability of ward’s family member to sue. 387 Ill. App. 3d 867 (1st Dist. 2008) (“interested persons” under 755 ILCS 5/1-2.11); • Extra complication: Peter didn’t intervene earlier for financial reasons • Mootness • Striking the order might ease transferred patient’s path back to the U.S.; • Immigration decisions finding mootness not applicable even after non-citizen deported. Eg., Peralta-Cabrera v. Gonzales, 501 F.3d 837 (7th Cir. 2007).

20. Establishing Protocols for Medical RepatriationWhat should protocols include? Essential aspects of any protocols • Consent: Find out whether the patient wants to return to their country. • Immigration remedies, rights and consequences upon departure from the U.S.: • Provide indigent non-citizen patients with referrals to free or low-cost legal advice to receive information about their immigration remedies and about the consequences of their future immigration status if they return to their home country. • Many patients will not know if they are eligible to apply for immigration benefits until a thorough screening of their and their family’s background is carried out. • Healthcare alternatives: Consider whether there are alternatives for hospitals like • paying for home health care; • paying for nursing home care if home health care is not option, • keeping patient, • paying for immigration advice and consultation (and even representation).

21. Some Examples of Immigration Status and Medicaid Eligibility • VAWA: Abused non-citizens: • Non-citizen (or the noncitizen's child under age 19) has been abused or subject to mental cruelty by the U.S. citizen or LPR, or by a member of that relative's family who lived with them; • Eligible for Medicaid prior to VAWA application approval if non-citizen needs assistance, at least in part, due to the abuse, and no longer lives with the abuser or plans to live separately within one month after receipt of assistance. • Lawful permanent residents • A person who enters the U.S. on or after 08/22/96 must live in the United States for 5 years after being lawfully admitted, to meet citizenship status. • T Visa: • Trafficking- Human trafficking can include forced labor, work in sex trade, servitude or other serious labor violations • Eligible for Medicaid before T visa granted. • Workers’ Compensation

22. Ongoing Legal Issues in Medical Deportation:An Open Discussion Some Questions: • In cases such as Barbara,what would be the cause of action/claim if a straight appeal is not pursued? • Who would be the Defendant? • What other options might be available for long-term care? • Were the patient is already out of the U.S., will case survive mootness challenge?

23. Resources/Bibliography • Lori A. Nessel, The Practice of Medical Repatriation: The Privatization of Immigration Enforcement and Denial of Human Rights, Wayne Law Review, Vol. 55, p. 1725, 2009. • Emily R. Zoellner, Medical Repatriation: Examining the Legal and Ethical Implications of an Emerging Practice, Washington University Journal of Law and Social Policy. Vol. 35:515 (2010)http://law.wustl.edu/journal/32/Zoellner.pdf. • Adriana Ortega, Health Care for All: Immigrants in the Shadow of the Promise of Universal Health Care. 35 AM. J.L. & MED. 185 (2009). • Kendra Stead, Notes and Comments: Critical Condition: Using asylum law to contest forced medical repatriation of undocumented immigrants. Northwestern University School of Law Printed in U.S.A. Northwestern University Law Review Vol. 104, No. 1 (2010).

24. Contact Info/ Questions? • Lisa Palumbo, lpalumbo@lafchicago.org • (312) 347-8374 • Caroline Chapman, cchapman@lafchicago.org • (312) 347-8388