Federal Funding for Unauthorized Aliens Emergency Medical Expenses
CRS Report for Congress
Federal Funding for Unauthorized Aliens’
Emergency Medical Expenses
Updated October 18, 2004
Alison M. Siskin
Analyst in Social Legislation
Domestic Social Policy Division
Congressional Research Service ˜ The Library of Congress
Federal Funding for Unauthorized Aliens’
Emergency Medical Expenses
There has been interest in the amount of money spent, as well as the amount of
federal funds available to provide emergency medical care to unauthorized (illegal)
aliens in the United States. It is extremely difficult to ascertain the amount of money
spent for emergency medical care for unauthorized aliens since most hospitals do not
ask patients their immigration status. Additionally, prior to the passage of the
Medicare Prescription Drug, Improvement, and Modernization Act of 2003 (P.L.
108-173) on December 8, 2003 there were no federal funds available for the specific
purpose of reimbursing hospitals or states for emergency medical care provided to
unauthorized aliens (undocumented immigrants).
Although the Personal Responsibility and Work Opportunity Reconciliation Act
of 1996 (PRWORA) barred unauthorized aliens from receiving most Medicaid
benefits, they are eligible for emergency Medicaid services. Unauthorized aliens are
also eligible for emergency medical services provided by the states.
The Medicare Prescription Drug, Improvement, and Modernization Act of 2003
(P.L. 108-173) signed into law on December 8, 2003 includes a provision, §1011, to
provide reimbursement to states for emergency care afforded to unauthorized aliens.
For each fiscal year FY2005-FY2008 the provision appropriates $250 million to
states to be distributed based on estimates of the number of undocumented aliens
residing in the state and on the number of apprehensions for the six states with the
highest number of apprehensions. This program is similar to one created in the
Balanced Budget Act of 1997 (BBA97) which had expired.
In addition, the Illegal Immigrant Reform and Immigrant Responsibility Act of
1996 (IIRIRA) authorized reimbursement of public hospitals and certain nonprofit
hospitals for emergency medical assistance to unauthorized aliens, and
reimbursement of state and local governments for emergency ambulance services
provided aliens injured while crossing U.S. borders while in custody. Neither
program has been funded. However, in FY1998 Congress appropriated money for
a pilot program in Nogales, Arizona to attempt to reimburse state and local
governments for ambulance services. INS concluded from the pilot program that
reimbursement for ambulance services was not a feasible program. H.R. 1515 would
provide reimbursement for the costs of emergency medical care and ambulance
services furnished to aliens paroled for medical reasons.
The provisions in PRWORA which limited immigrant access to public benefits
were the result of the desire that immigrants be self-sufficient and not rely on public
resources to meet their needs. Additionally, proponents did not want the availability
of public benefits to constitute an incentive for immigrants to migrate to the United
States. Nonetheless, many contend that since the federal government is wholly
responsible for establishing immigration policy, and for policing the borders to keep
out unauthorized aliens the burden to pay for immigration related costs should be
born by the federal government not the states. This report will be updated as needed.
Overview of Noncitizen Eligibility for Medicaid Benefits..................1
Funding for Emergency Services Prior to P.L. 108-173....................3
Balanced Budget Act (BBA) of 1997..............................3
Estimated Total Cost...............................................4
Reimbursement of Certain Emergency Medical Expenses..................7
Reimbursement for Emergency Ambulance Services......................7
Disproportionate Share Hospital (DSH) Payments........................8
Legislation in the 107th Congress......................................8
Legislation in the 108th Congress......................................9
S. 412/H.R. 819..........................................11
List of Tables
Table 1. Allotments for State Emergency Health Services Furnished to
Unauthorized Aliens under Section 4723 of the Balanced Budget Act
of 1997; Each Year FY1998-FY2001..............................4
Table 2. Cost and Federal Funding of Emergency Health Services for
Unauthorized Aliens, FY2001 (for 12 States with Largest Unauthorized
Appendix A: Preliminary State Allocations Under Section 1011:
Federal Reimbursement of Emergency Health Services
Furnished to Unauthorized Aliens................................15
Federal Funding for Unauthorized Aliens’
Emergency Medical Expenses
The growth of the unauthorized (also called illegal or undocumented) alien
population during the 1990s coupled with changes in the distribution of the
population within the United States has increased interest in funding of emergency
medical treatment for this population. Although unauthorized aliens are ineligible
for most federal means-tested programs, all aliens regardless of status are eligible for
emergency Medicaid. Statute requires that all Medicare-participating hospitals with
emergency departments treat all medically unstable patients and women in active
Between FY2001 and FY2004, there were no other federal funds available for
the specific purpose of reimbursing hospitals or states for emergency medical care
provided to unauthorized aliens. On December 8, 2003 the President signed the
Medicare Prescription Drug, Improvement and Modernization Act of 2003 (P.L. 108-
173) which contains a provision to provide reimbursement to states for emergency
care afforded to unauthorized aliens. Additionally it is extremely difficult to
ascertain the amount of money spent for emergency medical care for unauthorized
aliens since most hospitals do not ask patients their immigration status.2
Overview of Noncitizen Eligibility for
Currently, noncitizens’ eligibility for federal Medicaid benefits largely depends
on their immigration status and whether they arrived (or were on a program’s rolls)
before August 22, 1996, the enactment date of Personal Responsibility and Work34
Opportunity Reconciliation Act (PRWORA). Legal permanent residents (LPRs)
entering after August 22, 1996, are barred from Medicaid for five years, after which
coverage becomes a state option. States have the option to use state funds to provide
medical coverage for LPRs within five years of their arrival in the United States.
1 42 U.S.C. 1395dd. This provision was added by the Emergency Medical Treatment and
Active Labor Act (EMTALA).
2 Parts of this report were adapted from CRS Congressional Distribution Memorandum,
Federal Funding of Illegal Aliens’ Emergency Medical Expenses, by Joyce Vialet, Jan. 21,
3 P.L. 104-193; also called the Welfare Reform Act.
4 Legal permanent residents are sometimes referred to as green card holders, and are
synonymous with immigrants.
Refugees and asylees5 are eligible for Medicaid for seven years after arrival. After
the seven years, they may be eligible for Medicaid at state option. LPRs with a
substantial (10-year) work history or a military connection are eligible for Medicaid.
LPRs receiving Supplemental Security Income (SSI) on or after August 22, 1996 are
eligible for Medicaid since Medicaid coverage is required for all SSI recipients.
Finally, in the case of LPRs sponsored for admission after 1997, the income and
resources of their sponsor are “deemed” available to them when judging their
eligibility.6 Nonetheless, all aliens regardless of status who otherwise meet the
eligibility requirements for Medicaid are eligible for emergency Medicaid.
The Medicaid program is authorized by Title XIX of the Social Security Act, as
amended. It is a federal/state matching program of medical assistance for
low-income persons who are aged, blind, disabled or members of families with
dependent children. Generally, as noted above, noncitizens face additional eligibility
restrictions for Medicaid. In general, unauthorized aliens are ineligible for Medicaid
with the exception of emergency Medicaid. Emergency Medicaid covers
unauthorized aliens, nonimmigrants, and LPRs within the first five years of arrival
for emergency conditions if they meet the other eligibility requirements of the
Unauthorized aliens who are otherwise eligible for Medicaid except for their
illegal status may receive “medical assistance under Title XIX of the Social Security
Act ... for care and emergency services that are necessary for the treatment of an
emergency medical condition (as defined in Section 1903(v)(3) of such Act) of the
alien involved and are not related to an organ transplant procedure.”7 This language
from the Personal Responsibility and Work Opportunity Reconciliation Act
(PRWORA) of 1996 restates and carries forward a provision which had been enacted
10 years previously as an amendment to the Medicaid provisions of the Social
Section 1903(v)(3) defines “emergency medical condition” as:
a medical condition (including emergency labor and delivery) manifesting itself
by acute symptoms of sufficient severity (including severe pain) such that the
absence of immediate medical attention could reasonably be expected to result
5 Refugee and asylee status require a finding of persecution or a well-founded fear of
persecution in situations of “special humanitarian concern” to the United States. Refugees
are admitted from abroad. Asylum is granted on a case-by-case basis to aliens physically
present in the United States who meet the statutory definition of “refugee.”
6 For more information on specific eligibility criteria see CRS Report RL31114, Noncitizen
Eligibility for Major Federal Public Assistance Programs: Policies and Legislation, by
Ruth Ellen Wasem and Joe Richardson.
7 The Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) of
8 The provision was added by Section 9406 of the Omnibus Budget Reconciliation Act of
in — (A) placing the patient’s health in serious jeopardy, (B) serious impairment
to bodily functions, or (C) serious dysfunction of any bodily organ or part.
Like other Medicaid recipients, unauthorized aliens must demonstrate that they
are state residents, and many are not (or are unable or unwilling to prove that they
are). This is particularly true of unauthorized aliens requiring emergency hospital
care during attempted illegal entries. To be eligible for emergency Medicaid,
unauthorized aliens must also be poor and either aged, disabled, or members of a
family with children. Working age single males, for example, are generally not
eligible for any form of Medicaid regardless of their financial status or residence.
Funding for Emergency Services
Prior to P.L. 108-173
Balanced Budget Act (BBA) of 1997
The reimbursement provision in P.L. 108-173 is similar to a provision in the
Balanced Budget Act (BBA) of 1997 which appropriated $25 million each year,
FY1998 through FY2001, for additional funding for state emergency health services
for unauthorized aliens.9 The BBA specified that the funds should be divided among
the 12 states with the highest number of unauthorized aliens, based on estimates
provided by the former Immigration and Naturalization Service (INS). The money
was allocated to each state based on the number of unauthorized aliens in the state
as a percent of the unauthorized population of all 12 states.
According to a notice published in the Federal Register by HHS’s Centers for
Medicare and Medicaid Services (CMS),10 the funds were available to eligible states
for both “emergency medical services furnished to unauthorized aliens who, except
for their alien status, would otherwise qualify for Medicaid and for amounts paid for
services furnished to aliens who do not meet the Medicaid eligibility requirements.”
The emergency medical services covered were those defined by the Social Security
Act, §1903(v)(3), quoted above. The notice included a table designating the 12
eligible states and their designated yearly allotments based on INS’s estimates of
their unauthorized alien population (Table 1).11
9 Act of Aug. 5, 1998, P.L. 105-33, §4723; 111 Stat. 515.
10 Formerly, the Health Care Financing Administration (HCFA). To avoid confusion this
report always refers to CMS, regardless of whether the events occurred prior to the name
11 According to available statistics from 1996, the top 12 states encompassed 88% of the
unauthorized immigrant population.
Table 1. Allotments for State Emergency Health Services
Furnished to Unauthorized Aliens under Section 4723 of the
Balanced Budget Act of 1997; Each Year FY1998-FY2001
RankingState(estimated)top 12 statesAllotment
1 California 2,000,000 45.34 $11,335,298
2 T exas 700,000 15.87 $3,967,354
4 Florida 350,000 7.93 $1,983,677
5 Illinois 290,000 6.57 $1,643,618
7 Arizona 115,000 2.61 $651,780
8 M assachusetts 85,000 1.93 $481,750
9 V irgi nia 55,000 1.25 $311,721
10 Washington 52,000 1.18 $294,718
11 Colorado 45,000 1.02 $255,044
12 Maryland 44,000 1.00 $249,377
Total — 4,411,000100.00$25,000,000
Source: INS Statistics Branch, Demographic Statistics Section Estimated Resident Unauthorized
Population by State, Oct. 1996. HCFA-200-N, Federal Register, vol. 63, Mar. 3, 1998, p. 10402.
Table 1 shows that 45% of the money appropriated in the Balanced Budget Act
of 1997 for emergency services for unauthorized aliens was allocated to California
which had 45% of the total unauthorized population of the 12 states. In addition,
89% of the total funding was allocated to the five states with the highest number of
Estimated Total Cost
The total cost incurred by the states for unauthorized aliens is often an issue
since many contend that immigration, especially border control, is solely a federal
issue. The federal government is wholly responsible for establishing immigration
policy, and for policing the borders to keep out unauthorized aliens. Thus, some
argue that the burden to pay for immigration related cost should be born by the
federal government not the states. However, others note that the provisions in
PRWORA which limited immigrant access to public benefits were the result of a
desire that immigrants be self-sufficient and not rely on public resources to meet their
needs. Additionally, proponents of the provisions in PRWORA did not want the
availability of public benefits to constitute an incentive for immigrants to migrate to
the United States.
CMS collected data from the 12 states with the highest number of unauthorized
aliens on their total expenditures on emergency medical expenses for unauthorized
aliens. Table 2 shows total emergency health service costs for unauthorized aliens,
including both emergency Medicaid and expenditures on emergency services for
individuals who did not meet the Medicaid eligibility requirements. It is important
to note that these costs are reported by the states, and different states use different
accounting procedures. It is unlikely, for example, that New Jersey and Washington
spent no money on emergency services for unauthorized aliens.
Table 2. Cost and Federal Funding of Emergency
Health Services for Unauthorized Aliens, FY2001
(for 12 States with Largest Unauthorized Alien Population)
RankStateTotalFederal shareState sharestates
1 California $648,452,648 $343,667,280 $304,785,368 47.0%
2 T exas $173,072,108 $108,797,125 $64,274,983 37.1%
4 Flo rida $87,945,161 $50,655,070 $37,290,091 42.4%
5 I llinois $72,525,385 $37,906,311 $34,619,074 47.7%
7 Arizona $80,734,455 $53,750,974 $26,983,481 33.4%
8 Massachusetts $963,500 $963,500 $0 0.0%
9 Virginia $2,290,220 $2,290,220 $0 0.0%
10 Washington $0 $0 $0 0.0%
11 Co lo rado $2,052,534 $2,052,534 $0 0.0%
12 Maryland $13,487,388 $6,763,581 $6,723,807 49.9%
Source: Congressional Research Service (CRS) presentation of unpublished CMS data, May 14,
2001. The data were reported by the states to CMS.
The data shown in Table 2 are the closest approximation available of the cost
of emergency services for unauthorized aliens. With the caveats that the data reflect
emergency services as defined by Medicaid and that differences in the percent paid
by states may be the result of state differences in accounting procedures, the data
show for those reporting both federal and state shares that the federal government
pays more than half the cost of emergency services for unauthorized aliens.
California, the most heavily impacted state, reported that 53% of its emergency costs
for unauthorized aliens was reimbursed by the federal government. Maryland
reported that 50.1% of its emergency cost was reimbursed, which is the smallest
proportion of the states that reported both federal and state shares.12
GAO Study. In May 2004, the Government Accountability Office (formerly
General Accounting Office) (GAO) released a study entitled Undocumented Aliens:
Questions Persist about Their Impact on Hospitals’ Uncompensated Care Costs.13
The study concluded that since hospitals do not generally collect information on
patients’ immigration status, an accurate assessment of the impact of unauthorized14
aliens on hospitals’ uncompensated care costs “remains elusive.” GAO surveyed
503 hospitals, but as a result of the low response rate to the survey, was unable to
determine the cost of uncompensated care provided to unauthorized aliens. In
addition, over 95% of the hospitals which responded to the survey used the lack of
a Social Security number as the only method to identify unauthorized aliens. It is
unclear whether this method over or under estimates the amount of care provided to
The GAO study also reviewed the reported Medicaid spending for the 10 states
with the highest estimated unauthorized populations: Arizona, California, Florida,
Georgia, Illinois, New Jersey, New Mexico, New York, North Carolina, and Texas.
Although states are not required to report to CMS the amount of Medicaid
expenditures for unauthorized aliens, several states provided data or suggested to
GAO that most of their emergency Medicaid expenditures were for services provided
to unauthorized aliens. In addition, five of the states reported that more than half of
emergency Medicaid expenditures were for labor and delivery services.
GAO found that emergency Medicaid expenditures for the 10 states have
increased over the past several years but remain a small proportion, less than three
percent, of each state’s total Medicaid expenditures. Nonetheless, the study found
that, between FY2000 and FY2002, in nine of the 10 states reviewed the state’s
emergency Medicaid expenditures grew faster than the total Medicaid expenditures.
12 A report released by the United States/Mexico Border Counties Coalition in September
2002, estimated that the uncompensated costs from treating unauthorized aliens born by
border communities with hospitals in 2000 was $189.6 million. However the report notes
that the actual costs may be as low as $6.5 million or as high as $372.6 million. United
States/Mexico Border Counties Coalition, Medical Emergency: Costs of Uncompensated
Care in Southwest Border Communities, Sept. 2002. Available at
13 Government Accountability Office, Undocumented Aliens: Questions Persist about Their
Impact on Hospitals’ Uncompensated Care Costs, GAO-04-472 (May 2004).
14 Uncompensated care is care for which the hospital does not receive payment from either
the patient or an insurer including Medicaid.
Reimbursement of Certain
Emergency Medical Expenses
In addition, the Illegal Immigration Reform and Immigrant Responsibility Act
(IIRIRA) of 1996 authorized reimbursement of public hospitals and certain nonprofit
hospitals for emergency medical assistance to unauthorized aliens.15 The provision,
which is to be administered by the Attorney General in consultation with the
Secretary of HHS, has not been implemented to date. The funding is subject to a
number of restrictions, as follows:
!Funding is “subject to such amounts as are provided in advance in
appropriation Acts.” To date no funds have been appropriated.
!Funds are available for reimbursement “only to the extent that such
costs are not otherwise reimbursed through any other Federal
!No payment can be made “with respect to services furnished to an
individual unless the immigration status of the individual has been
verified through appropriate procedures” established by the
Secretary of HHS and the Attorney General.
Obviously, the lack of an appropriation has been the primary impediment to the
implementation of this provision. However, according to HHS and former INS
officials, the other restrictions would also pose difficulties. First, it is difficult to
determine that no other federal funding exists, given the availability of other non-
specific funding sources (e.g., Medicaid DSH payments, discussed below). Second
and probably more seriously, there is no procedure for determining the immigration
status of hospital patients.16
Reimbursement for Emergency Ambulance Services
IIRIRA also authorized reimbursement of state and local governments for
emergency ambulance services provided aliens injured while crossing U.S. borders
while in state custody.17 In 1997, the Conference Committee on the FY1998
Commerce, Justice, and State (CJS) Appropriations Act adopted the recommendation
of the House Appropriations Committee for “a pilot project for reimbursement for
emergency ambulance services in Nogales, Arizona.”18
15 Act of Sept. 30, 1996, P.L. 104-208, Division C, §562.
16 Hospitals do not tend to ask immigration status.
17 Act of Sept. 30, 1996, P.L. 104-208, Division C, §563.
18 Conference Report on H.R. 2267, H.Rept. 105-405, 105th Cong., 1st sess., Nov. 13, 1997,
p. 105. (The FY1998 CJS bill was enacted as P.L. 105-119.)
The Nogales pilot project began at the end of FY1998. A subsequent report to
Congress on the feasibility of expanding the Nogales project,19 did not recommend
expanding or continuing the project since the Border Patrol had to redirect
enforcement resources to administer the reimbursement of ambulance costs. The
report suggests that if Congress wants to create a program for reimbursement that it
“should develop a coordinated policy that includes the Department of Health and
Human Services (HHS), State and local health services, and other authorities. We
do not believe that under current law the HHS has the authority to reimburse States
for this activity.”20
Disproportionate Share Hospital (DSH) Payments
Although there is no Medicaid funding for the specific purpose of reimbursing
hospitals for the cost of unauthorized aliens, the Medicaid statute requires that states
make disproportionate share (DSH) adjustments to the payment rates of certain
hospitals treating large numbers of low-income and Medicaid patients, including
unauthorized aliens. These payments implicitly recognize the disadvantaged
situation of hospitals treating large numbers of Medicaid patients and other patients
with no insurance. States must define hospitals in their state Medicaid plans
qualifying as DSH hospitals and the DSH payment formulas. However, the
identification of unauthorized aliens among the Medicaid patients and uninsured as
a component of either the DSH designation or payment formula is not required, and
thus, there are no data on the amount of DSH payments used for unauthorized
Legislation in the 107th Congress
There were several bills introduced in the 107th Congress which would have
created a grant program to provide additional funding to states for emergency health
services for unauthorized aliens. These programs would have been similar to the one
created in BBA97. Although none of the bills passed, the bills are similar to
legislation that has been introduced in the 108th Congress.
!S. 169 introduced by Senator Kyl on January 24, 2001, would have
authorized $2 billion in each fiscal year FY2002-FY2005 to be
divided among the 17 states with the highest number of
19 H.Rept. 106-283, 106th Congress, 1st sess., July 30, 1999.
20 Immigration and Naturalization Service Report to the Congress, The Feasability of
Expanding the Local Ambulance Service Pilot Program and Implementation of Section 563
of the Illegal Immigration Reform and Immigrant Responsibility Act.
21 CRS Report 97-483, Medicaid Disproportionate Share Payments, by Jean Hearne, pp.
8-9. This discussion was adapted from this report. The total FY1998 allotment for DSH
payments was $10 billion; the highest state allotment was $1.5 billion for New York,
followed by $1.1 billion for California and just under $1 billion for Texas.
!S. 2449 introduced by Senator Bingaman on May 2, 2002, would
have appropriated $50 million in each fiscal year FY2003-FY2007
to be divided among the 15 states with the highest number of
unauthorized aliens. The bill would have also amended PRWORA
to allow states to use state funds to provide health benefits to all
noncitizens regardless of immigration status.
!On June 24, 2002, during the Senate Finance Committee mark-up of
the Work, Opportunity, and Responsibility for Kids (WORK) Act of
2002 (substitute H.R. 4737), Senator Kyl introduced an amendment
that would have authorized additional funding to certain states to
cover the emergency medical costs of treating unauthorized aliens.
The measure was defeated.
Legislation in the 108th Congress
P.L. 108-173. Section 1011 of The Medicare Prescription Drug, Improvement
and Modernization Act of 2003 (P.L. 108-173) signed into law on December 8, 2003,22
provides reimbursement states for emergency care afforded to unauthorized aliens.
For each fiscal year FY2005-FY2008 the provision appropriates $250 million of
!$167 million is allotted to states based on the percentage of
unauthorized aliens residing in the state compared to the total23
number of unauthorized aliens in the United States; and
!$83 million is allocated to the six states with the highest percentage24
of unauthorized alien apprehensions for the fiscal year, based on
22 Section 1011. The funds could also be used to provide reimbursement for medical
services for aliens who have been paroled into the United States for the sole purpose of
receiving emergency health care services, and for Mexican citizens admitted for no more
than 72 hours with Border Crossing Cards or “laser-visas.” “Parole” is a term in
immigration law which means that the alien has been granted temporary permission to enter
and be present in the United States. Parole does not constitute formal admission to the
United States and parolees are required to leave when the parole expires, or if eligible, to
be admitted in a lawful status.
23 The formula is based on the estimated number of unauthorized aliens residing in all states
as determined by the Statistics Division of the former Immigration and Naturalization
Service (INS). See Appendix A for the estimates.
24 For FY2002, the six states with the highest number of apprehensions were Arizona
(375,516), Texas (288,558), California (214,111), New Mexico (55,908), Florida (5,143),
and Louisiana (2,501). The state with the seventh highest number of apprehensions in
FY2002 was Washington (2,435). The number of apprehensions are based on unpublished
data from the former INS.
the percentage of apprehensions in the state compared to the number
of apprehensions for all such states.25
P.L. 108-173 directs the Secretary of Health and Human Services (HHS) to pay
local governments, hospitals, or other providers located in the state (including
providers of services rendered through an Indian Health Service facility) for the costs
of furnishing emergency health care services to unauthorized aliens during that fiscal
year.26 It also requires the Secretary of HHS to establish, no later than September 1,
2004, a process, including measures to protect against fraud and abuse, under which
entities would apply for reimbursement for claims associated with emergency health
care services provided to unauthorized aliens. Advanced payments will be made
quarterly based on the applicants’ projected expenditures. (See Appendix A for the
preliminary allocations under this provision.)
CMS Policy Paper on Implementing Section 1011 of P.L. 108-173.
On July 21, 2004, CMS released a policy paper outlining the proposed
implementation approach and general framework for submitting claims under Section
1011.27 The paper states that since the legal obligation to provide emergency
treatment only applies to those hospitals participating in the Medicare program, that
only Medicare participating hospitals can apply to receive funds under Section 1011.
According to the CMS policy paper, the grant program would also cover ambulance
transportation of an alien to a hospital to be treated for an emergency medical
condition.28 CMS also requires that providers seek funds from all available funding
sources29 before requesting payment under Section 1011. CMS proposes a single-
payment pool for each state from which each provider in the state would receive
payment on a quarterly or annual basis.
25 The number of unauthorized alien apprehensions would be based on the four most recent
quarterly apprehension rates as reported by the Department of Homeland Security (DHS).
The bill states that the rates are to be reported by INS; however, the Homeland Security Act
of 2000 (P.L. 107-296) transfers most functions of Department of Justice’s Immigration and
Naturalization Service (INS) to the DHS. The transfer of these functions occurred on Mar.
26 The funds could also be used to provide reimbursement for medical services for aliens
who have been paroled into the United States for the sole purpose of receiving emergency
health care services. “Parole” is a term in immigration law which means that the alien has
been granted temporary permission to enter and be present in the United States. Parole does
not constitute formal admission to the United States and parolees are required to leave when
the parole expires, or if eligible, to be admitted in a lawful status.
27 Department of Health and Human Services, Center for Medicare and Medicaid Studies,
Proposed Implementation Approach: Federal Funding of Emergency Health Services
Furnished to Undocumented Aliens: Fiscal Years 2005 Through 2008, July 21, 2004. The
Secretary of HHS does not have explicit rule making authority under the provision.
28 The program would also cover ambulance costs for a transfer of a medically unstable alien
from one hospital to another for care.
29 Other funding sources include Federal sources (e.g., Medicare), state, and local
governmental sources (e.g., Medicaid), third-party-payers (e.g., private health insurers), and
direct payment from the patient.
The CMS policy paper states that for payment under Section 1011, hospitals
must collect and maintain information regarding the immigration status of the
patients. CMS proposes that providers request information on a patient’s citizenship
or immigration status prior to discharge, but after the patient is identified as self-pay
and not Medicaid eligible. Individual level immigration information would be
maintained at the hospital and not routinely transmitted to CMS, as CMS would
designate a contractor to review and determine the number of claims and the
percentage of patients qualifying for reimbursement. CMS contends that this
approach would minimally increase paperwork for hospitals, as much of the
information can be gathered from existing Medicaid enrollment forms. Nothing in
the paper suggests that the information should be transmitted to the Department of
Homeland Security (DHS); however, some are concerned that DHS could use
hospital records to locate unauthorized aliens, making aliens less likely to seek
medical treatment. Reportedly, after receiving comments on the proposed
implementation plan (i.e., the policy paper), CMS has revised the policy, and will not
require providers to ask about a patient’s immigration status to receive
reimbursement under §1011.30
H.Rept. 108-10. In addition, the conference report for the Consolidated
Appropriations Resolution, 2003 (H.Rept. 108-10)31 instructs the former INS to
provide a one-time payment to hospitals in Cochise, Pima, Santa Cruz, and Yuma
Counties, Arizona for unreimbursed costs associated with treating unauthorized
immigrants. The conferees directed the payment because they “believe hospitals in
Cochise, Pima, Santa Cruz and Yuma Counties, Arizona are bearing an unfair burden
as a result of illegal immigrants injured as a result of interaction with the Border
Patrol, ... [and that] this one-time funding infusion is appropriate until a nation-wide
solution is developed in fiscal year 2003.” The conferees also directed the former
INS, in coordination with the Department of Health and Human Services, to provide
a report by July 1, 2003 to the Committees on Appropriations with recommendations
to address the issue of unreimbursed cost of treating unauthorized aliens.
S. 412/H.R. 819. The “Local Emergency Health Services Reimbursement Act
of 2003" (S. 412) introduced by Senator Kyl on February 13, 2003, and its
companion the companion bill (H.R. 819) introduced by Representative Kolbe on
February 26, 2003, are similar to Section 1011 in P.L. 108-173.32 S. 412/H.R. 819
would appropriate $1.450 billion for each fiscal year FY2004 to FY2008 to
reimburse states for emergency care to unauthorized aliens. Of the monies
30 “CMS Won’t Require Hospitals to Collect Citizenship Data to Qualify for Subsidies,”
Health Care Policy, vol. 12, no. 40 (Oct. 11, 2004), p.1377.
31 P.L. 108-7 was signed into law on Feb. 20, 2003.
32 The provision for reimbursement for medical care provided to unauthorized aliens in P.L.
!$957,000,000 would be allotted to states based on the percentage of
unauthorized aliens residing in the state compared to the total
number of unauthorized aliens in the United States;
!$493,000,000 would be allocated to the six states with the highest
percentage of unauthorized alien apprehensions for the fiscal year,
based on the percentage of apprehensions in the state compared to
the number of apprehensions for all such states.
The bills specify that monies paid to the states from this program may only be
used to make payments for costs incurred by the provision of emergency health care
to unauthorized aliens, and require the reallocation of unused funds.
H.R. 690. H.R. 690 introduced by Representative Gutierrez on February 11,
of 18 who are residing in the United States on the date that the bill is enacted or
who develop the medical condition necessitating the transplant while residing in the
H.R. 1515. Representative Flake introduced H.R. 1515 on March 31, 2003.
H.R. 1515 would provide reimbursement for the unreimbursed costs of emergency
medical care34 to aliens paroled into the United States for medical reasons. The bill
would direct the Secretary of the Department of Homeland Security to create a
program to reimburse hospitals and other providers of emergency medical care (e.g.,
physicians and ambulance services) for care to aliens paroled into the country for
medical reasons, and would authorized such sums as necessary for the program.
H.R. 3722. H.R. 3722 was brought to the floor under suspension of the rules
on May 17, 2004. The vote to suspend the rules and pass H.R. 3722 occurred on
May 18, 2004 at which time the motion was defeated 331 to 88. H.R. 3722
introduced by Representative Rohrabacher on January 21, 2004 would have amended
§1011 of P.L. 108-173 to place certain conditions on the reimbursement to health
care providers for emergency health services for unauthorized aliens. H.R. 3722
would have required as a condition of reimbursement that eligible providers obtain
information on the alien’s citizenship, immigration status, address in the United
States, financial data which is required of non-indigent patients including health
insurance status, and current employer in the United States (if applicable) as well as
a biometric identifier. The bill would have also required that the health care provider
submit the alien’s information in an electronic format to the Secretary of Homeland
Security. H.R. 3722 would have also made removable (deportable) aliens who do not
provide payment for the provided health services, and do not give accurate
information on the required questions or a biometric identifier.
33 The term “residing” is not defined in the INA, and, as a result, this bill would likely
provide medicaid coverage to unauthorized aliens under the age of 18 who need an organ
34 Reimbursement is limited to medical examinations and treatment required to stabilize an
emergency medical condition as defined under the Social Security Act.
In addition, H.R. 3722 would have made employers of unauthorized aliens for
whom the hospital received financial reimbursement for medical services, liable to
HHS for the amount of the payment with certain exceptions. Lastly, the bill would
have required the Secretary of State to do a study on the appropriateness of
negotiating treaties under which countries provide for the international medical
evacuation of their nationals who require emergency health care in the United States
and provide funding through visa surcharges to pay for the evacuation of nationals
seeking emergency health care from countries without treaties.
Those in favor of H.R. 3722 argued that the bill would not have forced hospitals
to report unauthorized aliens as only those hospitals who wished to be reimbursed for
medical expenses provided to unauthorized aliens would have had to send reports to
DHS. Those opposed to the bill argued that the added paperwork would be burden
to hospital staff, and would detract from their other duties.
H.R. 4360. Introduced on May 13, 2004 by Representative Jo Ann Davis, H.R.
4360 would make the grant program to provide reimbursement for emergency care
afforded to unauthorized created in §1011 of The Prescription Drug Act (P.L. 108-
173) permanent in FY2009, and beginning in FY2009 would allocate $250 million
from foreign aid funds to pay for the reimbursement.
H.Amdt. 737. This amendment was introduced by Representative Thomas
Tancredo during floor debate on the FY2005 appropriations bill for the Departments
of Labor, Health and Human Services, and Education, and Related Agencies (H.R.
5006).35 The amendment would have prohibited CMS from using any appropriated
funds to pay the salaries of personnel administering the grant program, created in
Section 1011 of The Prescription Drug Act of 2003, which provides reimbursement
for emergency care afforded to unauthorized aliens. The amendment failed by voice-
There are several policy issues concerning the provision of federal funding for
states with large populations of unauthorized aliens. As discussed above, the
provisions in PRWORA which limited immigrant access to public benefits were the
result of a desire that immigrants be self-sufficient and not rely on public resources
to meet their needs. Additionally, proponents did not want the availability of public
benefits to constitute an incentive for immigrants to migrate to the United States.
Nonetheless, others argue that immigration is solely a federal issue. The federal
government is wholly responsible for establishing immigration policy, and for
policing the borders to keep out unauthorized aliens. Thus, they argue that the
burden to pay for immigration-related cost should be born by the federal government,
not the states. Additionally, some question the wisdom of only providing funding to
help cover the costs of unauthorized aliens when no federal funds are provided to
states to cover the emergency medical costs of nonimmigrants and legal permanent
residents who have been in the country for less than five years.
35 The amendment was introduced on Sept. 9, 2004.
Another issue concerns the lack of reliable data on the number and distribution
of unauthorized aliens.36 As the 2000 census of the U.S. population is being released,
preliminary data analyses offer competing population totals that, in turn, imply that
illegal migration soared in the late 1990s and that estimates of unauthorized residents
of the United States have been understated. The Department of Homeland Security
estimates that there are about 7 million unauthorized aliens living in the United
States.37 In testimony before the House Committee on the Judiciary Subcommittee
on Immigration and Claims, Jeffrey Passel, a demographic researcher at the Urban
Institute, offered an estimate of 8 to 9 million unauthorized residents. At the same
hearing, economists from Northeastern University using employment data reported
by business establishments as well as 2000 census totals concluded that the
unauthorized population may be 11 million.38 These discrepancies suggest that
assessments of the unauthorized population by state may be an inaccurate and
problematic basis for distributing grant funds.
None of these estimates addresses the distribution among states of the
unauthorized population; however, anecdotal reports suggest that unauthorized aliens
may be dispersed among many states rather than concentrated in a few states as
previously presumed.39 If this is true, a program which limits the number of states
eligible for additional reimbursement for medical treatment of unauthorized
immigrants may exclude smaller states that have proportionally high numbers of
unauthorized aliens in relation to their population, but not high absolute numbers of
36 The discussion of different estimates of the unauthorized population is adapted from CRS
Report RL30780, Immigration Legalization and Status Adjustment Legislation, by Ruth
Ellen Wasem. For more information see CRS Report RS21938, Unauthorized Aliens in the
United States: Estimates Since 1986, by Ruth Ellen Wasem.
37 U.S. Immigration and Naturalization Service, Estimates of Unauthorized Immigrant
Population Residing in the United States: 1990-2000, Jan. 2003. Available from
[ ht t p: / / www.i mmi gr at i on.gov/ gr a phi cs/ s har e d/ about us/ s t a t i s t i c s/ Il l e ga l s .ht m] .
38 U.S. Congress, House Committee on the Judiciary, Subcommittee on Immigration and
Claims, Hearing on the U.S. Population and Immigration, Aug. 2, 2001.
39 For more information on unauthorized aliens in nontraditional areas, see Laura Parker, and
Patrick McMahon, “Immigrant Groups Fear Backlash,” U.S.A. Today, Apr. 9, 2001, p. A3;
Mary Morgan Edwards, and Jeff Ortega, “Latinos: Destination Columbus,” The Columbus
Dispatch, Mar. 19, 2000, p. 1A; and James Andrews, and Ruth Knack, “The Newest
Americans: Immigrants Challenge Communities Across the Country,” Planning, vol. 63,
no. 9, Sept. 1997, pp. 4-10.
Appendix A: Preliminary State Allocations Under Section 1011:
Federal Reimbursement of Emergency Health Services
Furnished to Unauthorized Aliens
St a t e
a llo ca t io ns
unauthorizedpercentage ofNumber ofallocationsProjected
St a t e ( t ho usa nds) a liens FY2003 apprehensions a llo ca t io n
To tal 7 ,003 $167,000,000 977,252 $83,000,000 $250,000,000
Alabama24$572,326757 — $572,326
Alaska5$119,235278 — $119,235
Arizona 283 $6,748,679 410,105 $34,831,052 $41,597,731
Arkansas27$643,8671,288 — $643,867
California 2 ,209 $52,677,852 231,523 $19,663,719 $72,341,572
Colorado144$3,433,9577,207 — $3,433,957
Connecticut39$930,030460 — $930,030
Delaware10$238,469 — — $238,469
District of7$166,9281,139 — $166,928
Co lumb ia
Florid a 337 $8,036,413 9,510 $807,704 $8,844,117
Georgia228$5,437,0981,788 — $5,437,098
Hawaii2$47,694508 — $47,694
Idaho19$453,0921,131 — $453,092
Illinois432$10,301,8712,721 — $10,301,871
Indiana45$1,073,112605 — $1,073,112
Iowa24$572,326486 — $572,326
Kansas47$1,120,805 — — $1,120,805
Kentucky15$357,704656 — $357,704
Louisiana5$119,2354,110 — $119,235
Maine0.5$11,923380 — $11,923
Maryland56$1,335,4281,135 — $1,335,428
Massachusetts87$2,074,6821,532 — $2,074,682
Michigan70$1,669,2853,577 — $1,669,285
Minnesota60$1,430,8152,138 — $1,430,815
Mississippi8$190,775861 — $190,775
Missouri22$524,6324,099 — $524,632
Montana0.5$11,9231,063 — $11,923
Nebraska24$572,3262,683 — $572,326
Nevada101$2,408,5391,213 — $2,408,539
New2$47,694470 — $47,694
New Jersey221$5,270,1701,963 — $5,270,170
North Carolina206$4,912,4661,398 — $4,912,466
North Dakota0.5$11,923663 — $11,923
Ohio40$953,8771,320 — $953,877
Oklahoma46$1,096,958681 — $1,096,958
Oregon90$2,146,2232,306 — $2,146,223
Pennsylvania49$1,168,4993,374 — $1,168,499
Rhode Island16$381,551736 — $381,551
South Carolina36$858,489342 — $858,489
South Dakota2$47,694395 — $47,694
Tennessee46$1,096,9581,415 — $1,096,958
St a t e
a llo ca t io ns
unauthorizedpercentage ofNumber ofallocationsProjected
St a t e ( t ho usa nds) a liens FY2003 apprehensions a llo ca t io n
T exas 1 ,041 $24,824,647 267,081 $22,683,733 $47,508,379
Utah65$1,550,0502,503 — $1,550,050
Vermont0.5$11,9231,158 — $11,923
Virginia103$2,456,233406 — $2,456,233
Washington136$3,243,1814,564 — $3,243,181
West Virginia1$23,847169 — $23,847
Wisconsin41$977,724491 — $977,724
Wyoming2$47,694 — — $47,694
Source: Department of Health and Human Services, Center for Medicare and Medicaid Studies,
Proposed Implementation Approach: Federal Funding of Emergency Health Services Furnished to
Undocumented Aliens: Fiscal Years 2005 Through 2008, July 21, 2004. Calculations are based on
data from the Department of Homeland Security, Office of Immigration Statistics.
Note: States that had fewer than 1,000 estimated unauthorized aliens received values of 500
unauthorized aliens for the purpose of calculating the formula.