Title 42: Public Health
PART 482—CONDITIONS OF PARTICIPATION FOR HOSPITALS

Sec. 482.55 Condition of participation: Emergency services.

The hospital must meet the emergency needs of patients in accordance
with acceptable standards of practice.
(a) Standard: Organization and direction. If emergency services are
provided at the hospital--
(1) The services must be organized under the direction of a
qualified member of the medical staff;
(2) The services must be integrated with other departments of the
hospital;
(3) The policies and procedures governing medical care provided in
the emergency service or department are established by and are a
continuing responsibility of the medical staff.
(b) Standard: Personnel. (1) The emergency services must be
supervised by a qualified member of the medical staff.
(2) There must be adequate medical and nursing personnel qualified
in emergency care to meet the written emergency procedures and needs
anticipated by the facility.

You might also want to try Pub. L, #108-173, para. 201(c) of the Medicare Modernization Act of 2003.

PUBLIC LAW 108–173—DEC. 8, 2003 117 STAT. 2067
TITLE II—MEDICARE ADVANTAGE
Subtitle A—Implementation of Medicare Advantage Program
Sec. 201. Implementation of Medicare Advantage program.
SEC. 201. [42 U.S.C. 1395w-21 note] IMPLEMENTATION OF MEDICARE ADVANTAGE PROGRAM.

(a) In General.—There is hereby established the Medicare Advantage program. The Medicare Advantage program shall consist of the program under part C of title XVIII of the Social Security Act (as amended by this Act).

(b) References.—Subject to subsection (c), any reference to the program under part C of title XVIII of the Social Security Act shall be deemed a reference to the Medicare Advantage program and, with respect to such part, any reference to “Medicare+Choice” is deemed a reference to “Medicare Advantage” and “MA”.

Transition.—In order to provide for an orderly transition and avoid beneficiary and provider confusion, the Secretary shall provide for an appropriate transition in the use of the terms “Medicare+Choice” and “Medicare Advantage” (or “MA”) in reference to the program under part C of title XVIII of the Social Security Act. Such transition shall be fully completed for all materials for plan years beginning not later than January 1, 2006. Before the completion of such transition, any reference to “Medicare Advantage” or “MA” shall be deemed to include a reference to “Medicare+Choice”.

The question then becomes a legal one. Are cross-border repatriations--done without control or over-sight--legal? Or is it 'patient dumping?'

By DEBORAH SONTAG

The New York Times

Eight years ago, Luis Alberto Jimenez suffered a traumatic brain injury in a car crash. He was later deported back to Guatemala.
JOLOMCÚ, Guatemala — High in the hills of Guatemala, shut inside a one-room house, Luis Alberto Jimenez has no idea of the legal battle that swirls around him in the lowlands of Florida.

Beaming at his toothless mother, his sole caregiver, Jimenez remains cheerily oblivious that he has come to represent the collision of two flawed U.S. systems, immigration and health care.

Eight years ago, Jimenez, now 35, an illegal immigrant working as a gardener in Stuart, Fla., suffered devastating injuries in a car crash with a drunken Floridian. A community hospital saved his life, twice, and, after failing to find a rehabilitation center willing to accept an uninsured patient, kept him as a ward for years at a cost of $1.5 million.

What happened next set the stage for a legal battle with nationwide repercussions: Jimenez was deported, not by the federal government but by Martin Memorial Hospital. After winning a state court order that would later be declared invalid, Martin Memorial leased an air ambulance for $30,000 and "forcibly returned him to his home country," as one hospital administrator described it.

Since returning home, Jimenez, who sustained a traumatic brain injury, has received no medical care or medication — just Alka-Seltzer and prayer, said his 72-year-old mother. In the past year, his condition has deteriorated with routine seizures.

"Every time, he loses a little more of himself," said his mother, Petrona Gervacio Gaspar.

Jimenez's benchmark case exposes a little-known but apparently widespread practice. Many U.S. hospitals are repatriating seriously injured or ill immigrants because they cannot find nursing homes willing to accept them without insurance. Medicaid does not cover long-term care for illegal immigrants, or for newly arrived legal immigrants, creating a quandary for hospitals, which are obligated by federal regulation to arrange post-hospital care for patients who need it.

U.S. immigration authorities play no role in these private repatriations. Most hospital officials said that they do not conduct cross-border transfers until patients are medically stable and that they arrange to deliver them into a physician's care in their homeland.

But the hospitals are operating without governmental assistance or oversight, leaving ample room for legal and ethical transgressions.

Some advocates for immigrants see these repatriations as a kind of international patient dumping.

Hospital administrators view such cases as costly, burdensome patient transfers that force them to shoulder responsibility for the dysfunctional immigration and health-care systems. In many cases, they said, the only alternative to repatriation is keeping patients indefinitely in acute-care hospitals.

"What that does for us, it puts a strain on our system, where we're unable to provide adequate care for our own citizens," said Alan Kelly, vice president of Scottsdale Healthcare in Arizona.

Medical repatriations are happening with varying frequency, and varying degrees of patient consent, from state to state and hospital to hospital. No government agency or advocacy group keeps track of these cases, and it is difficult to quantify them.

There is enough traffic to sustain at least one repatriation company, MexCare, operating nationwide with a "network of 28 hospitals and treatment centers" in Latin America. It bills itself as "an alternative choice for the care of the unfunded Latin American nationals."

Many hospitals engage in repatriations of seriously injured and ill immigrants only as a last resort. "We've done flights to Lithuania, Poland, Honduras, Guatemala and Mexico," said Cara Pacione, director of social work at Mount Sinai Hospital in Chicago. "But out of about a dozen cases a year, we probably fly only a couple back."

Other hospitals routinely send uninsured immigrants, legal and illegal, back to their homelands. One Tucson, Ariz., hospital tried to fly a U.S. citizen, a sick baby whose parents were illegal immigrants, to Mexico last year; the police, summoned by a lawyer to the airport, blocked the flight.

Sister Margaret McBride, vice president for mission services at St. Joseph's in Phoenix, which is part of Catholic Healthcare West, said families were rarely happy about the decision to repatriate relatives. But, she added, "We don't require consent from the family."

In the spring, St. Joseph's planned to send a comatose, uninsured legal immigrant back to Honduras, until lawyers got involved. While they were negotiating with the hospital, Sonia del Cid Iscoa, 34, who has been in the United States for half her life and has seven U.S.-born children, came out of her coma. She is back in her Phoenix home.

Unlike Iscoa and Jimenez, most uninsured immigrant patients in repatriation cases do not have advocates fighting for them, and they are quietly returned to their home countries.

Jimenez's case is apparently the first to test the legality of cross-border patient transfers undertaken without the consent of the patients or their guardians — and the liability of the hospitals who undertake them.

"We're the rhesus monkey on this issue," said Scott Samples, a spokesman for Martin Memorial.

The average stay at Martin Memorial is 4.1 days and costs $8,188. Patients rarely linger. In addition to trauma patients, there are uninsured immigrants with serious health problems.

"In our emergency room, we don't turn anyone away," said Carol Plato Nicosia, director of corporate business services. "The real problem is if we find an underlying problem, and now we have six of them, six patients who showed up in renal failure and that we are now seeing three times a week for dialysis.

"I don't want to sound heartless. A community hospital is going to give care. But is it the right thing? We have a lot of American citizens who need our help. We only make about 3 percent over our bottom line if we're lucky."

Martin Memorial reported a total margin of 3.6 percent over its bottom line last year and 6 percent in 2006. According to the most recent statewide data, the nonprofit medical center also reported assets of $270.6 million in 2006, with its senior executives earning more than $4 million in salaries and benefits.

Tax-exempt hospitals are expected to dedicate an unspecified part of their services to charity cases, and Martin Memorial devoted $23.9 million in 2006, about 3 percent, average for Florida, according to state data.

Jimenez was an expensive charity case. In cases like his, where patients need long-term care, hospitals are not allowed to discharge them to the streets. Federal regulations require them — if they receive Medicare payments, and most hospitals do — to transfer or refer patients to "appropriate" post-hospital care.

But in most states, the government does not finance post-hospital care for illegal immigrants, for temporary legal immigrants or for legal residents with fewer than five years in the United States.

Martin Memorial's lawyer, Robert Lord Jr., said hospitals should not be forced to assume financial and legal responsibility for these cases. "It should be a governmental burden, or the government should step in and otherwise exercise its authority for deportation or whatever it wants to do."

In Jimenez's case, the hospital's doctors determined appropriate post-hospital care meant traumatic-brain-injury rehabilitation.

Hospital-discharge planners searched to no avail for a rehabilitation program or nursing home.

Michael Banks, a local lawyer representing Jimenez's guardian — a cousin by marriage — took the position that the hospital had a responsibility to provide Jimenez with the rehabilitation, even if it meant paying a rehabilitation center.

But the hospital declined, as Lord put it, "to take out our checkbook" and subsidize Jimenez's care at another institution. "Once you take that step, for how long are you going to do that — a year, 10 years, 50 years?"

Eventually, the Guatemalan health minister wrote a letter assuring Martin Memorial that his country was prepared to care for Jimenez.

After the guardian and the hospital reached an impasse, Martin Memorial took the matter to court, asking a state judge to compel relatives to cooperate with its repatriation plan. In June 2003, a hearing was held before Circuit Judge John Fennelly.

George Bovie III, a lawyer for Martin Memorial, told the judge: "This is a case about care for a man in this country illegally who has reached maximum medical improvement at our hospital and is ready to be discharged and whose home government" is prepared to receive and treat him.

Banks said in response, "Your Honor, this is a case about a hospital that has failed to do its job properly," adding that the hospital sought to "have this court legitimize its patient dumping."

By the time of the hearing, Jimenez was essentially a boarder at the hospital, wheeling around the hallways and hanging out at the nursing stations.

Diana Gregory, a nurse who supervises case management and discharge planning, said in a recent interview that Jimenez became "like family" to hospital workers, who bought him birthday cakes, knitted him blankets and gave him toys.

According to hospital records, however, it was not all pastries and presents. Jimenez grew depressed and showed signs of regression. Gregory said Jimenez developed some disturbing habits, including spitting, yelling, kicking and defecating on the floor.

In court, his doctor, Walter Gil, testified that Jimenez would benefit from returning to the intimacy of his family.

Dr. Miguel Garces, a prominent Guatemalan physician and public-health advocate, said in a deposition that serious rehabilitation "is almost nonexistent" in Guatemala outside private facilities. He predicted Jimenez would be taken in and released from the country's one public rehabilitation hospital within weeks.

Fennelly granted the hospital's petition.

Banks filed a notice of appeal and asked for a stay while the appeal was pending. The judge asked the hospital to file a response by 10 a.m. on July 10 before he ruled on the stay.

A few hours before that response was due, an ambulance picked up Jimenez and drove him to the St. Lucie County Airport, where an air ambulance was waiting to transport him back to Guatemala.

The hospital's lawyer declined to comment on why the hospital did not wait for the judge to rule on the stay.

Gregory, the nurse, traveled to Guatemala with Jimenez, bringing a wheelchair, a week's worth of medications, "lunch/snacks/juices/treats," and an emergency passport signed with a fingerprint, according to discharge records.

He arrived in Guatemala, and an ambulance took him to the National Hospital for Orthopedics and Rehabilitation.

Although it is the only public rehabilitation hospital in the country, it dedicates just 32 beds to rehabilitation and does not offer the specialized brain-injury treatment that Jimenez needed.

In May 2004, a Florida appeals court overruled Fennelly. The 4th District Court of Appeal found that the Florida state judge had overstepped his bounds because deportation is the prerogative of the federal government. The court also declared that no evidence supported the hospital's assertion that Jimenez would receive appropriate care in Guatemala.

Given that Jimenez was in Guatemala, that action came too late for him.

It might affect others, though. The decision has become what is known legally as a case of first impression on the issue of hospital repatriations.

Based on the appeals-court ruling, Jimenez's guardian is pursuing suing the hospital. In a subsequent ruling, the judges said the hospital can be sued for punitive damages and for the cost of his medical care.

John DeLeon, a lawyer who advises the consulates of Mexico, Honduras and Guatemala in Miami, said he now refers to the case when he receives calls from hospitals looking to discharge seriously injured or ill immigrants.

"I now write ... a letter that says, 'Listen, don't take action to dump this individual because you'll be risking legal action. The law is now that hospitals can't dump immigrant patients without securing appropriate aftercare.' "

Jack Scarola, another lawyer representing Jimenez's guardian, said he empathized with the hospital's "significant economic burden" but said it was the "quid pro quo" of accepting Medicare and Medicaid funds to help finance the hospital's services. About 45 percent of Martin Memorial's net operating revenues came from Medicare and Medicaid last year, based on state data.

"Also," he continued, "they chose the wrong way to deal with it. ... There is no program in place to appropriately distribute care to undocumented persons who are catastrophically injured, and there should be. But you don't stick a brain-injured immigrant on a private plane and spirit him out of the country."