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Cancer ruling heats up immigration debate

A long-simmering argument over what constitutes emergency medical care is shifting the financial burden for treating illegal immigrants with cancer to individual hospitals and charities, medical providers said Monday, adding fuel to the wider debate over immigration that has become a big issue in the presidential campaign.

Under federal law, Medicaid, the health care program for the poor, splits the cost of emergency medical treatment for undocumented aliens with the state. That provision has been the focus of dispute among state and federal officials since November 2001, however, when the federal government issued guidelines clarifying that dialysis and chemotherapy were to be considered treatments for chronic conditions, not emergencies.

Since then, the impact of the new definition has slowly become apparent as the federal Centers for Medicare and Medicaid Services, or CMS, conducts state-by-state audits of Medicaid emergency payments and declares that Medicaid will no longer approve reimbursement for illegal immigrants’ chemotherapy treatments.

Last month, CMS sent such a notice to New York officials after a 3½-year-long audit, The New York Times reported in its Saturday editions, sparking a protest from state health officials.

Taking decisions out of doctors’ hands

“It just doesn’t make medical sense,” said Richard F. Daines, the state’s health commissioner, who maintained that a patient’s doctor should be the sole judge of whether a condition is an emergency.

“An emergency is something that’s acute and potentially life-threatening, and the position before has always been to let the patient’s physician define that it’s an emergency,” Daines said Monday in an interview with MSNBC’s Chris Jansing.

Arthur Caplan, director of the Center for Bioethics at the University of Pennsylvania, agreed.

“It’s doctors who define emergencies, and no doubt some of these chemotherapy things are going to be emergencies to the people who have them,” said Caplan, who suggested that doctors were being put in a bind in the service of politics.

“I know there are many who want to use this as a kind of pawn — including, apparently, the Bush administration — in this whole battle over illegal immigrants,” said Caplan, a health columnist for

Fair payment, not unfair treatment

Illegal immigration has become a major issue in the presidential campaign, and some candidates have highlighted the costs of treating illegal immigrants as a contributor to rocketing medical costs.

Sen. Hillary Clinton of New York, who is leading the polls in the race for the Democratic nomination, said Sunday that “illegal immigrants would not be covered” under the health care plan she announced this month. Former Sen. John Edwards, D-N.C., has made the same promise, as have many of the Republican candidates.

The question is not whether illegal immigrants will be turned away from the emergency room. Instead, the question is who will bear the burden — the state and federal governments, or hospitals already straining under flat budgets and booming demand for care.

There are no figures cataloguing the costs of chemotherapy for illegal immigrants, but government figures show that overall payments under the emergency Medicaid program for illegal immigrants have risen 57 percent since the turn of the century. The RAND Corp., meanwhile, found in 2005 that about 70 percent of illegal immigrants had no health insurance.

That suggests that absorbing 100 percent of the costs for often highly expensive chemotherapy treatments could be difficult for hospitals and those states — about half of them — that have not already committed to covering the costs themselves.

“Our hospitals aren’t in the business of denying treatment. This is [about] getting fair payment for the treatments that they render,” Daines said. “Our options are to continue to use state sources of funding, charitable care and hospitals’ taking a loss on that care.”

Law mandates treatment but won’t pay for it

But Caplan said there might be hope for doctors and other medical administrators if the dispute ever makes it to court.

“If anybody shows up at an emergency room, there’s a federal law that requires that they be treated,” Caplan said. “I don’t think the federal government is going to have much to stand on to say they’re not going to contribute their share.”

That law is the Emergency Medical Treatment and Active Labor Act, which defines an emergency as a condition that “could reasonably be expected” to result in, among other things, “serious impairment to bodily functions, or serious dysfunction of any bodily organ or part.”

In the view of Daines — and of officials in Arizona and Washington state, which have also wrangled with EMC over the ruling — that covers many manifestations of cancer, such as internal bleeding from breast cancer or intestinal blockages from colon cancer.

“We know that there are certain medical emergencies that need to be treated with chemotherapy,” Daines said. “... It clearly falls within the intention of the Medicaid program.”

“The ethic is you treat everyone the same,” Caplan said. “You don’t sort out the illegals from the poor from the rich. ...

“If we start doing that, we’re going to start losing lives, because that takes time and gets in the way of delivering care quickly.”