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Physicians in Texas county hospitals and clinics have treated low-income residents for years without concern for whether their patients can prove they are U.S. citizens or legal residents.

In a city like Houston, where an estimated one-quarter of indigent patients are undocumented immigrants, denying them publicly funded health care services would mean turning away a lot of patients in need of care -- a scenario that holds little appeal for physicians.

"When you read the Hippocratic oath, it doesn't say anything about [a patient's] citizenship," explains Jeff Starke, MD, chief of pediatrics at Ben Taub General Hospital, Houston's largest public hospital. "It says I'm supposed to help people who come to me for help."

The idea is to treat people before their conditions become acute and require emergency care, he says, which is why Houston's public health care system -- the Harris County Hospital District -- offers preventive and primary care to needy inhabitants regardless of their legal status. Most of the nation's local public health care systems have similar policies.

But in Texas, Dr. Starke's sense of medical ethics and the county hospital districts' longstanding practice have collided with a recent legal opinion issued by Texas Attorney General John Cornyn.

In it, Cornyn wrote that provisions of the 1996 federal welfare reform law prohibit Ben Taub and other safety-net hospitals and clinics in the state from providing most nonemergency health care services to undocumented immigrants. The only exceptions are for immunizations, diagnosis and treatment for communicable diseases, and services for abused children.

Cornyn notes that the federal law does allow states to authorize other public health care benefits for undocumented workers -- but that Texas has not enacted such a statute. He concludes that unless county hospital districts in Texas terminate primary and preventive care for undocumented residents, they could face sanctions related to Medicare and Medicaid funding, and hospital officials could face criminal prosecution.

The opinion, released in July, has shocked and dismayed many physicians in the state's public hospitals and clinics, including Dr. Starke. If the attorney general is correct in his legal interpretation, Dr Starke says, "that by definition constitutes extremely bad law and some remedy needs to be made."

Dealing with reality

Despite efforts by the Immigration and Naturalization Service to keep them from entering the United States, undocumented immigrants are settling in the country in growing numbers -- as many as 8.5 million, according to a recent estimate.

With so many undocumented workers living and working in the United States, both contributing to the economy and paying taxes, many states have decided to grant them new rights aimed at improving their quality of life -- such as access to drivers' licenses and in-state college tuition.

It makes just as much sense, if not more, to provide them full access to publicly funded health care services, says Ron Anderson, MD, president and chief executive officer of Parkland Hospital and Health System in Dallas. In addition to being good medicine, the policy of offering them routine care prevents undocumented immigrants from inundating hospital emergency departments, which are required by the federal Emergency Medical Treatment and Active Labor Act to treat anyone seeking care.

As far as Ben Taub is concerned, its emergency department is already stretched to its limit, says the hospital's chief of staff, James Mattox, MD. The 300 to 350 emergency patients Ben Taub sees each day likely would double if undocumented immigrants were cut off from care provided by the hospital's specialty and community-based clinics, leaving emergency care as their only option, he says.

"That's just going to worsen an already overstressed situation, and at increased cost, because seeing someone in an emergency department is considerably more expensive than seeing someone in a clinic," Dr. Mattox says. As long as EDs are required to care for people who are undocumented, cutting those patients off from preventive and primary care services would be a matter of "the right hand not knowing what the left hand is doing," he adds.

Nor is it practical to think that physicians can neatly delineate between patients who have communicable diseases -- and therefore qualify for care under an exemption provided by the federal welfare reform law -- and those who have another type of condition, Dr. Starke says.

When a patient comes to him with a chronic cough, for example, it's not immediately obvious what is causing the cough. "It could be a lung tumor, it could be asthma, it could be tuberculosis, it could be anything. So until I see that person, evaluate them, often run some tests, and sometimes see if it responds to therapy, I can't tell you if they have a communicable disease or not."

Dr. Starke says he would object, furthermore, to being put in a position in which, having determined his patient's illness, he would be able to treat the patient if it were tuberculosis because it's a communicable disease, but not if it were asthma. "That is morally reprehensible, and it is contrary to every canon of modern medical ethics of which I am aware," he says.

Still, according to Cornyn's legal opinion, that is what Dr. Starke is required, by law, to do.

Cornyn's opinion, though troublesome to many, has served to highlight an area of the federal welfare law that had been relatively ignored since its enactment.

"Just one lawyer's opinion"

In the past five years, the vast majority of local jurisdictions have not stopped offering undocumented immigrants access to publicly funded medical care; rather, they have continued to regard health care services they provide to undocumented immigrants as a local issue. While San Diego chose to terminate nonemergency medical assistance to undocumented aliens, other areas with large immigrant populations -- such as New York City, Los Angeles County and Miami -- have not.

Many health care law experts and constitutional scholars have questioned the federal statute's constitutionality, taking the position that its restrictions on local and state benefits provided to undocumented immigrants violate states' 10th Amendment rights to govern themselves.

Cornyn's opinion, which is premised on that statute, is highly controversial. Although an attorney general's opinion can be influential in a case that goes before a judge, it is still "just one lawyer's opinion" and does not carry the weight of law, several health care law experts note. Nevertheless, it has opened the door to legal challenges against Texas hospital district policy -- which deeply concerns hospital officials and physicians.

The fallout begins

Just days after Cornyn issued his opinion, an organization called the Young Conservatives of Texas filed complaints with district attorneys in Harris, Dallas, Bexar and El Paso counties. The group claimed that the hospital districts had misappropriated taxpayer dollars by providing unauthorized medical services to undocumented immigrants.

Action was swift in Houston, where District Attorney Chuck Rosenthal immediately launched a criminal investigation against Harris County Hospital District officials. Ironically, those same officials had requested the attorney general's opinion in the first place.

Home to a booming immigrant population and the nation's third largest public health care system, Harris County continues to provide medical care to undocumented immigrants, despite the district attorney's investigation.

Similarly, Dallas, Bexar and El Paso counties say they will continue to provide medical care as usual to undocumented immigrants unless and until a legal ruling specifically forbids it. But Montgomery and Nueces counties have curtailed services, saying they regretted taking the action but feared criminal prosecution.

In the meantime, the controversy stirred up by Cornyn's opinion is the focus of dueling legal interpretations, with hospital lawyers, civil rights groups and immigrant advocates hoping to stop any momentum that would persuade more hospital districts to cut services.

The legal battle continues

Dr. Anderson remains firm in his view that Cornyn is wrong in saying that the Texas Legislature has not authorized health care services for undocumented immigrants as required by the welfare reform law. He points to a measure the Legislature adopted in 1999 to amend the state's Indigent Health Care and Treatment Act -- the law that requires Texas counties, hospital districts and public hospitals to provide health care assistance to indigent county residents.

In amending the statute, the Legislature created new standards of eligibility for indigent health care programs, but chose not to exclude undocumented immigrants from any services. That constitutes an affirmative response to the requirements set forth by the federal welfare reform law, Dr. Anderson says.

But Cornyn drew a different conclusion.

True, the amendment does not explicitly disqualify undocumented workers from access to health care services, he wrote, but nor does it "expressly state" that the Legislature intended to make undocumented immigrants eligible for any local or state benefits otherwise prohibited under the welfare reform law.

Following the release of Cornyn's opinion, some lawmakers have said they would like to enact legislation that explicitly provides undocumented immigrants access to health care services. But in the absence of a special session -- considered to be highly unlikely -- their next opportunity won't come until 2003.

Rather than wait, hospitals, physicians and advocates are hoping to see the issue resolved by Congress through federal legislation that would clarify that state and local governments can provide health care services to whomever they choose.

"An ideal fix would be one that clearly applies across the board to all kinds of health care services provided by state and local governments, period," says Anne Dunkelberg, senior policy analyst at the Center for Public Policy Priorities in Austin, Texas.

Rep. Gene Green (D, Texas) of Houston introduced a measure in July that would amend the federal statute to include primary and preventive care among the services that undocumented immigrants are allowed to access. It is unclear when or if the legislation will pass Congress.

In the meantime, Dr. Mattox says Ben Taub's medical staff will continue to treat all of their patients -- regardless of legal status -- the way they would like to be treated themselves. "We need to take care of the person who crosses our threshold and comes into the hospital, and we need to treat them all the same way."

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 ADDITIONAL INFORMATION: 

Coming to America

Estimated foreign-born population in the United States: 30.5 million

9.3 million (30%) are legal immigrants.
9.2 million (30%) are naturalized citizens.
8.5 million (28%) are undocumented immigrants.
2.3 million (8%) are refugees.
1.3 million (4%) are legal nonimmigrants.

Top six states

California 2.3 million
Texas 1.2 million
New York 700,000
Florida 700,000
New Jersey 500,000
Illinois 500,000

Source: Urban Institute preliminary estimates based on 2000 Census results

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