Undocumented immigrants may be eligible for federal COVID care, but a larger issue looms

Should federal funds be used to cover the cost of providing hospital care for undocumented immigrants who have severe cases of COVID-19? It would be the right thing to do. But is it possible? And if it is, will congress be willing to provide the funds that would be needed to do it?

President William J. Clinton signed the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) into law on Aug. 22, 1996, to fulfill his 1992 campaign promise to “end welfare as we have come to know it.” The act made it illegal to give public funds to undocumented immigrants, establishing comprehensive restrictions on immigrant eligibility for federal public benefits because — according to the act — “It is a compelling government interest to remove the incentive for illegal immigration provided by the availability of public benefits.”

Section 401(a) limits federal public benefits to “qualified aliens,” but there are some exceptions. The law defines “qualified alien” as an alien who, when he applies for and when he receives a Federal public benefit — 

1. has Lawful Permanent Resident status;
2. has been granted asylum;
3. has been admitted as a refugee;
4. has been paroled into the U.S. for a period of at least one year; or
5. has had his deportation withheld under section 8 USC §1231(b)(3)(A). 

This made undocumented aliens ineligible for most federal benefits, such as non-emergency Medicaid, the Supplemental Nutrition Assistance Program (SNAP), Supplemental Security Income (SSI), Temporary Assistance to Needy Families (TANF), and most housing assistance programs.

The exceptions include medical assistance under Title XIX of the Social Security Act for care that is necessary for the treatment of an emergency medical condition and public health assistance for immunizations or for testing or treatment of communicable disease symptoms. And Section 1903(v)(3) of the Social Security Act provides that the term “emergency medical condition” means a medical condition manifesting itself with acute symptoms of sufficient severity that the absence of immediate medical attention could reasonably be expected to result in —

1. placing the patient’s health in serious jeopardy;
2. serious impairment to bodily functions; or
3. serious dysfunction of any bodily organ or part.

Consequently, PRWORA may not prohibit public funding for treating undocumented immigrants who need hospitalization for COVID-19, but PRWORA is not the only problem.

According to Dr. Michele Carbone, the capacity of  ICUs to treat hospitalized COVID-19 patients is limited. Our hospitals could be overwhelmed by the number of COVID-19 patients needing ICU beds if the pandemic gets much worse.

And it could get much worse.

Public health experts have warned of a “second wave” of infections in the fall; the military is preparing for the pandemic to stretch into 2021, and some experts predict that eventually up to 60 percent of our population of 300 million people will become infected with COVID-19 — and approximately 20 percent of them will need hospitalization. This means that 36 million people may need hospitalization for COVID-19 treatment.

According to an April 23, 2020, research article on resource-use associated with COVID-19, America only has 96,596 ICU beds and 62,000 full-featured mechanical ventilators.

Carbone points out that once ICU capacity has been reached, doctors may have to decide who gets life-saving care and who doesn’t.

This has been the brutal logic behind the nationwide lockdown to “flatten the curve” — which has been largely successful but has also created other problems.

Carbone also notes that hospitals have to stop elective surgeries that require ICU beds if the ICU beds are all being used by COVID-19 patients, and such elective surgery is a major source of income for hospitals.

Shifting resources from elective surgery and other profitable procedures to COVID-19 care is destroying hospitals financially.

When the Mayo Clinic stopped all nonemergency medical care in late March, it began losing millions of dollars a day. Last year, it produced $1 billion in net operating revenue, but it expects to lose $900 million in 2020 — despite furloughing workers and cutting doctors’ pay.

It’s not just the Mayo Clinic. According to a May 2020 report from the American Hospital Association, over the four-month period from March 1, 2020, through June 30, 2020, America’s hospitals and health systems are expected to lose $202.6 billion, which will amount to an average loss of $50.7 billion a month.

Unless these problems are resolved, it may not be possible to meet COVID-19 hospitalization needs, whether undocumented immigrants are included or not.

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow him on Twitter @NolanR1 or at https://nolanrappaport.blogspot.com.