diagnosis critical: the impact of the immigration crisis on the financial and operational health of...

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***DIAGNOSIS CRITICAL*** How the Immigration Crisis Impacts the Financial and Operational Health of your

Hospital

Eliot Norman Corporate Immigration Compliance TeamWilliams MullenRichmond, [email protected] updates: http://tinyurl.com/immupdates -

Arlene J. Diosegy, Esq. Health Care Practice GroupWilliams MullenDurham, NC [email protected]

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***Diagnosis Critical***

Nothing new for our Hospitals

Your Operational and Financial Health has already checked you into the ICU

Reuters: “Latest US Hospital Profits Fall to Zero”


***Diagnosis Critical***What is the “Link” Between the

Immigration Crisis and Your Hospital?

1. EMTALA, the “Undocumented” Uninsured and your ER

2. Critical Staffing Shortages Compounded by: Low or Nonexistent visa quotas

Cumbersome immigration rules that leave you with an undersupply of nurses, physicians, physical therapists, that

threatens quality of patient care;

3. Increased Risks and Costs of Worksite Enforcement: I-9s, E-Verify

4. Congressional Inaction and its Consequences


PART 1: EMTALA and Immigrants


EMTALA Overview

The Emergency Medical Treatment and Labor Act (“EMTALA”)

History: There were widespread reports in the 1980’s of “patient dumping.” In response, Congress enacted EMTALA as part of the Consolidated Omnibus Budget Reconciliation Act in 1985 (COBRA)

Purpose: To prevent dumping and the disparate treatment of patients

(whether as a result of the existence, non-existence or type of insurance, or for any other reason)


Basic premise of EMTALA

Any patient who comes to the emergency department requesting examination or treatment for a medical condition must be provided with an appropriate medical screening examination to determine if he is suffering from an “emergency medical condition”. This examination must be given without regard to the

individual’s ability to pay and immigration status.

If patient is suffering from “an emergency medical condition,” the hospital must either provide the patient with treatment until the patient is stable or under certain circumstances, transfer the patient to another hospital.


What is “an emergency medical condition”

A medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate attention could reasonably be expected to result in: (1) placing the health of the individual (or an unborn child in the

case of pregnant woman) in serious jeopardy, or

(2) serious impairment to bodily functions, or

(3) serious dysfunction of any bodily organ or part


What is an emergency medical condition?

In the case of a woman having contractions, an emergency medical condition exists if: (1) there is inadequate time to effect a safe transfer to another

hospital before delivery, or

(2) the transfer would pose a threat to the health or safety of the woman or the unborn child


Some Implementation Specifics

Hospitals are required to: (1) keep logs and other records regarding individuals coming to the

emergency department

(2) post signs in their emergency departments specifying rights of individuals with regard to examination and treatment and whether the hospital accepts Medicaid

(3) maintain physician-on-call lists and information on physicians who refuse or fail to appear to provide timely stabilizing treatment

(4) receiving hospitals must report incidents to CMS or DHHS within 72 hours when they believe the sending facility may be violating the regulations


Some Implementation Specifics (continued)

Maintain documentation by patients or someone on their behalf of an informed refusal of treatment, or an informed request for or refusal of transfer.

Protection for “whistle blowers” who refuse to authorize an inappropriate transfer or who report a violation of the regulations.

Failure to report can subject the receiving hospital to termination from Medicaid.

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Immigration and your Hospital:Storm Clouds Coming

We have 12-13 million undocumented outside the system but living and working in the United States

N.C. Ranked #1 in % increase (1990-2000) Who are They? Maybe not what you think

EWI, of course: hiring a “coyote” Overstays in all fields: ex-H1-Bs, F-1 Students Foreign Born (undocumented and legal)=15% of work force Undocumented workers Drifting from employer to employer: New Pressure from SSN “No-Matches, I-9 and E-Verify Many were here legally but cases stalled after 04/30/2001 with

sunset of 245i. Quite likely many are patients at your hospital and some

may even be working for you in allied health jobs


Undocumented immigrants 11.9 million+ undocumented immigrants in the United States

Undocumented immigrants make up 4% of the U.S. population

Since the mid-1990s, the most rapid growth in the number of undocumented immigrants has been in states that previously had relatively small foreign-born populations. As a result, North Carolina is now among the states with largest numbers of undocumented migrants (approximately 300,000+) and One of the Fastest Growing States in terms of the increase in “illegals” or “undocumented”

All statistics from Pew Hispanic Center


The Uninsured and Uninsured Immigrants

Total Uninsured in USA: 45 million

Total Uninsured in NC: jumped from 1.4 million in 2007 to nearly -1.8 million in Jan. 2009; and is both a rural and urban problem** (largest percent increase 22% in USA)

Nationally, Uninsured Hospital Stays Jumped 33% from 1997 to 2006***

Nationally, ¼ or 25%+ of uninsured are immigrants*

What’s the impact on Hospital ER admissions?*HAP of PA: Kenneth J. Braithwaite, II Sr. VP Feb. 15, 2008 Presentation

**www.shepscenter.unc.edu; NCIOM HSR, UNC at Chapel Hill March 2009;

***U.S.News& World Report 3/8/09


Undocumented immigrants and health care

One study found that annual per capita expenses for health care were 86% lower for uninsured immigrant children than for uninsured U.S.-born children — but emergency department expenditures were more than three times as high.*

Many undocumented immigrants post-pone treatment until an emergency arises.

Immigrants are significantly more likely to be uninsured than native citizens and undocumented immigrants are usually ineligible for government healthcare services (except Emergency Medicaid—used mainly for childbirth)*Mohanty SA, Woolhandler S, Himmelstein DU, Pati S, Carrasquillo O, Bor DH. Health care expenditures

of immigrants in the United States: a nationally representative analysis. Am J Public Health 2005;95:1431-1438


Impact on hospitals?

Hospitals must provide appropriate medical screening and subsequent stabilizing treatment to undocumented immigrants who present to the emergency department.

Many undocumented immigrants are unable to pay for the cost of the treatment. Once stabilized do they become your long-term responsibilities?

Hospital must absorb the cost of emergency treatment to undocumented immigrants.

Congress let partial funding for these costs expire in 2008


Impact on hospitals? (EMTALA and Immigration—Mr. Jiminez)

8 yrs ago Jimenez suffered traumatic brain injury in car crash;

Florida non-profit hospital couldn’t find rehab center willing to accept him, so it kept him as a ward for years at cost of $1.5 million. Did EMTALA require hospital to provide long-term care?

Florida non-profit hospital deported him to Guatemala


Penalties for violating EMTALA

A hospital that negligently violates EMTALA may be subject to a civil money penalty of up to $50,000 per violation.

Provider Agreement may also be revoked.

Private right to sue: Patients may assert a claim against the hospital; or

Receiving hospitals may assert claims against sending hospitals.

Immigrants have sued (Jiminez case) for international patient dumping


Can the hospital inquire about the patient’s ability to pay?

Yes.

Timing is the key.

Discussion of payment should not take place before the medical screening examination and the provision of any needed stabilization treatment.

Can Hospital inquire about patient’s immigration status?


What to do when patient inquires about financial liability for emergency services? Encourage the patient to remain in the emergency

department if he/she has an emergency medical condition

Defer discussion of the patient’s financial obligation until after the medical screening examination and stabilization treatment have been performed.


Best Practices

If patient presents with an emergency medical condition: (1) there should be no prior authorization before providing patient

with a medical screening or stabilization.

(2) there should be no financial responsibility or advanced beneficiary notification- Hospital should not request that a patient complete a financial responsibility form or an advanced beneficiary notification form prior to providing a screening examination.

(3) only a physician or a qualified medical personnel (as defined in hospital’s bylaws) must conduct the medical screening examination.


Recap? What do you do in this situation?


Self-Help or Advocacy Practices

Follow the Practices of California and Florida Hospitals? Closures of ERs?

Self-Help (MEXCARE Air-Ambulance Services flying immigrants home?)

$$ Lobby for Congressional Funding? Revival of Section 1011? Meanwhile, is it too late to Share in the Fund?

Move Uninsured Immigrants into Health Care System: Health Care Reform and Immigration Reform Go “Hand-in-Hand”

Right now: Hospitals bear nearly all of the Financial Costs of Care for the Immigrant Uninsured


PART 2: Staffing ShortagesWSJ: “Diagnosis is Critical” 9/12/2007


Nurses

Let’s Just look at Nurses (including RNs):

Demographics are against you: aging baby boomers

1.2 million new and replacement nurses needed nationally by 2014; 40% of all vacancies in health care; wage increases don’t slow down vacancies

2005: nursing schools turned down 147,000 applicants: not enough space, funding or faculty

RISK: JAMA found 31% increase in surgery patient mortality when RN workload increased from 4 to 8 patients


North Carolina Not Immunized Against National Shortages in Health Care Staffing

At Least NC is not a Top 10 Nursing shortage State like Tennessee, NJ, NY, FLA, California

NC: Nursing shortage of 6.5% or 5000+ in 2009; rising to 10,000+ in 2015?

National Factors Impacting North Carolina: 89% of Hospital CEOs report serious workforce shortages

Turnover rate for hospital nurses: 20%

Average age of nurses: 45, 40% of RNs over 50 yrs old; less than 8% are under 30

2007: 40,000 qualified applicants for B.S. and graduate programs turned away due to lack of faculty, budget, classroom space

Medical errors: 7th leading cause of death in U.S.; each patient over 4 for RNs in surgical area to handle increases morbidity by 7%

Other Shortages: Physicians, PTs (14.8% vacancy rate) , other allied health professionals.


Partial Temporary Solution: Recruit Foreign Nurses

Why are Hospitals interested? How does our national foreign RN utilization average compare with

other countries? 4% in US compared with 8% in UK, 6 % in Canada, 8% in Ireland, 23%

in New Zealand.

Countries of origin: Philippines, India, Canada, South Korea. Top States: California, Florida, New York , Texas, New Jersey,

Illinois account for 70% of all foreign RNs working in the U.S. Total Foreign RNs working in the US: 126,000 . There are still over

300,000 RN vacancies going unfilled in 2009. You would think this should not be a controversial or difficult

process Given vacancy rates, few U.S. nursing jobs are being lost to

Foreign RNs.


Legal Immigration: Recruiting/Retaining Global Talent/Essential Health Care Workers

WHY CONSIDER GLOBAL SOLUTIONS?

Health Care Worker Shortages:

Talent

Diversity to match Diversity of Patient Population, languages, cultures

Never going to be a complete or even partial solution

Impact on salaries ? not seen in Wages paid RNs or other health care workers


Legal Immigration: Recruiting and Retaining Health Care Global Talent

How I spend my time: Advising on how to maximize your competitive advantage through “smart use” of the existing immigration system.

That system still poses significant challenges to and opportunities for hospitals and their foreign national employees

Of Late the “Immigration System” has been of limited help to most hospitals. Why?


Recruiting Foreign Talent

Registered Nurses

Physical and Occupational Therapists

Allied Health Workers: radiology and medical techs,,, speech pathologists, physician assistants, pharmacists, dietitians, occupational therapists,

Foreign Physicians, especially those completing residency at U.S. Medical Schools.

Bottom line: EACH OCCUPATION HAS ITS OWN VISA TYPES AND RULES


What’s the Process to Hire a Foreign RN?

We had 50,000 visas due to “recapture” Green Cards set aside by Congress in May 2005 only to be exhausted by the end of 2006

Emergency Nursing Supply Relief Act: RNs and PTs Failed to pass again in 2008

WSJ: 4% is not taking away jobs

“More Green Cards needed now before hospital staffing contributes to more preventable illness and death” WSJ: 9/17/2007

Process is cumbersome but can be navigated:


Example: You want to hire a Foreign Registered Nurse

Visa Screen Certificate from CGFNS validating education, English proficiency

Meet Labor Requirements certifying paying prevailing wage, post wage and vacancy

File Immigration Papers (140 Petition) in USA with DHS (USCIS);

Obtain Approval, Cable Notice to U.S. Embassy, Manila

She Waits for Appointment, issued Visa,

Finally Arrives, obtains SS#, obtains license, begins work.

BOTTOM LINE: HARDER TO ADMIT A RN than temporary landscape workers working around your hospital grounds; AND NO temporary visas available for RN while waiting for Green Card.

Anita: Outstanding B.S. Graduate of Nursing School in Philippines, 5 years experience in ICU in top private hospital in Dubai. 1 year+ process for Schedule A Green Card (***When available***)


Foreign RNs: Alternative Strategies

Go North or South (Canada or Mexico under TN)

Or Use Traditional Green Cards from other Countries: 6 Steps including proof of PERM (electronically-filed labor

certification , testing shortages in U.S. market (Sunday Newspaper Ads)

But new problems regarding Retrogression= Long Wait (3-5 years for Green Cards)

No fix in sight on Visa Quotas


Procedures for Other Essential Health Care Professionals

Limited J-1 waivers for H-1Bs for foreign M.D.s completing residencies in U.S.

30 Conrad Physician slots per state for Green Cards for Foreign Physicians

PTs: a little better - can obtain temporary H-1B visas

Best Source of Foreign Medical Specialists: Canada and Mexico: Favored Treatment under NAFTA. Bilingual skills help with Hispanic patient population: Applies: RNs, PTs, also to Allied Health Workers, including Medical Techs


“Best Practices” for Recruiting Foreign Healthcare Talent

Consider it temporary solution for “hard-to-fill” positions Plan Ahead, will not be a “quick-fix” except for use of

NAFTA Treaty for Canadian and Mexican citizens Broaden Recruitment starting with North America: some

Job Fairs in Canada are closer than those in Chicago and California

Position of AHA and NCHA in easing restrictions on foreign doctors educated at U.S. Medical Schools?

Engage an immigration advisor to monitor develop-ments, work on pro-active strategies


Part 3: Worksite Enforcement Risks to Hospitals

The problem: Government makes employers verify identity/work authorization of all hires: U.S. citizens and foreign nationals.

These I-9s =Huge “Paper Chase”. And E-Verify is coming….

Enforced by Civil Fines For First offense: $375 to $3200 for substantive violations

Even Paperwork Violations: Fines Range from $110 to $1100

Your Hospital is a large employer whose workforce reflects new demographics of North Carolina

Not immune from worksite enforcement by Feds.

Or liability for illegal labor hired by your contractors: The “Wal-Mart” Problem ($11 million criminal forfeiture)


“Best Practices” and “Safe Harbors”


The New I-9 Form and List of Acceptable Documents


NEW LIST OF ACCEPTABLEDOCUMENTS

EMPHASIS: “ALL DOCUMENTS MUST BE UNEXPIRED” and be more careful in accepting List A Documents that show Identity and Work Eligibility


NEW I-9 FORM Effective April 3, 2009

Section 1: Employee fills in but Employer Pays Fine if its not Correct or Complete: Data Used For E-Verify

Translator/Preparer Certificate

Section 2: HR: Fills in Info From Originals of List A or List B and C Documents

HR Certification: “UNDER PENALTY OF PERJURY”

Section 3: HR Re-Verifies Work Authorization, again under “penalty of perjury”


MINI-WEBINAR The Nuts and Bolts of Filling in the NEW I-9 Form

Link to audio and slides for your HR Managers: http://www.williamsmullen.com/filling-in-the-new-i-9-03-23-2009/


Your Hospital’s I-9 Paperwork

Key to avoiding these sorts of pictures Audits or Fines, ICE Raids Your HR Manager: Must give this area

same priority as EEO reporting and requirements

Now is the time to get the paperwork

in order Add SSNs “No Matches” and E-Verify to

Mix


“Best Practices” for your HR Team

1. Sample, Scorecard, Train, Audit and Certify: and then go back 6 months later and do it again

2. Get the List of Available documents out as early as possible in the application process: New and old U.S. Citizens in particular are going to have problems with the new I-9;

3. Go to Electronic I-9s: eliminate errors, paperwork violations and fines

4. Get Ready for E-Verify, its coming, see the map on the next slide

5. Scan existing I-9s and Documents presented and shred the paper ones.

6. Purge your I-9 Data using the 3yr/1yr Rule for Discard

7. Otherwise, your Thousands of Antiquated, handwritten I-9 Records are just a……


14 E-Verify States in Red : + All Federal Contracts June 2009


THE FUTURE


PART 4: Congressional Inaction on Immigration Reform and Relief


Part 1: EMTALA Reimbursement for Caring for “Undocumented” Immigrants

Only Fair: Why should Hospitals shoulder 100% of the Burden

2 largest unfunded Multi-Billion Dollar mandates: Schools and Hospitals

Has Congress done anything about it?


EMTALA Funding Remedies:How it Worked

Medicare Section 1011: $1 Billion for 2005-2008: complicated allocations, money may still be there;

Funding Expired September 30, 2008

Some Senators urged Congress to extend Section 1011 program

May 19, 2008 AHA NEWS: A bipartisan group of 15 senators urged congressional leaders to extend Section 1011 of the Medicare program, which helps reimburse hospitals for emergency services provided to undocumented immigrants. “Section 1011 plays a critical role in helping to stabilize our states’ health care safety net and preserve access to care,” the group said in a letter to leaders of the Senate and its Finance Committee. “We hope that you concur and include a two-year extension of Section 1011 in this year’s Medicare bill.” Authorized by the Medicare Modernization Act of 2003, the program is set to expire Sept. 30,2008, Congress authorized $250 million annually for the program in fiscal years 2005-2008. Under the Emergency Medical Treatment and Labor Act, hospitals must treat anyone who needs emergency care, regardless of their ability to pay.

Result: “De Nada” (Nothing)


Part 1: EMTALA Reimbursement for Caring for Undocumented* Immigrants

S. 3101 and S. 3118 (EMTALA Funds)

Never made it to a Senate Floor Vote in 2008

Only Partial Solution: $250 million/year is welcome but nationally still is a drop in the bucket..

Added complication: Section 111 of MMSEA: beginning January 2009 may kick working illegals with phony SSNs out of Group Health Plans, adding to the uninsured

*Most immigrants not here legally are not undocumented, they are documented, its just that their paperwork is phony, which is why SSA has identified 10 million SSNs that don’t match.


Controversial Recommendations

What is needed? Our view: Comprehensive Immigration Reform to: move 12 million illegals into health care system if they are

already here working and paying taxes, why cant they get health insurance or coverage under Medicare?

If nothing done, even with health care reform, 25% of uninsured will stay uninsured and continue to over-utilize your ER and other hospital services


Part 2: Staffing Shortages & Congressional Inaction

Emergency Nursing Relief Act. No Floor Vote. Would have added 20,000 Green Cards annually until 2011 for RNs and Physical Therapists

20,000= only 5% of current vacancies

Would also have paid $1500 per Green Card into Nurse Enhancement Fund to increase faculty to educate more nurses in the U.S.

No Changes in Quotas/Complex Visa Rules for Qualified Foreign M.D.s, Health Care Professionals

Position of AHA? NCHA?


Part 3: Your Governments and your I-9 /E-Verify Immigration Paperwork

Allows Crazy Patchwork Quilt of Federal and State Laws requiring hospitals to verify who can work and their identities

Moving large employers to E-Verify System (100,000 already enrolled)

Puts Burden on Hospitals to card-check employeesat risk of Fines or Worse

Until we move to National ID or E-Verify System, Hospital Management needs to adequately support HR Managers in dealing with the confusion emanating from Washington DC and get competent help

Position of AHA? HCHA?


The Future: Health Care Reform Should Be Linked to Immigration Reform


Questions or Comments?

Arlene J. Diosegy, Esq. Health Care Practice GroupWilliams MullenDurham, [email protected]

Eliot Norman Corporate Immigration Compliance Team Williams MullenRichmond, [email protected]

For updates: http://tinyurl.com/immupdates

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diagnosis critical: the impact of the immigration crisis on the financial and operational health of...

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