Healthcare Insights: Florida's New Law Hurts Patients and Doctors

A new Florida law that took effect on July 1, 2023 will impact more than 2 million people living and working in that state, the nation’s third most populous. They will now be subject to SB 1718, which among other things, requires hospitals that accept Medicaid to collect information on citizenship status.

“The requirement was set forth by SB 1718, an immigration bill Gov. Ron DeSantis signed in May, according to the Miami Herald.” Under the law, hospitals' admission and registration forms must include a question asking if the patient is legally in the U.S. The documents must also state that patients' answers will not affect their care and that their immigration status won't be reported to authorities.

Hospitals will be required to submit a quarterly report on total hospital admissions and emergency room visits to the Florida Agency for Health Care Administration, the agency that oversees hospitals in the state. The report must include how many visits were made by U.S. citizens, undocumented individuals, and those who declined to answer.

In this month’s Healthcare Insights, we want to illuminate the implications of this law which went into effect as part of a sweeping set of regulations that impact immigrant people in Florida. “The changes will likely contribute to increased fears among immigrant families, which may negatively impact their daily lives, physical health, and mental well-being. The combination of increased fears and new requirements for hospitals to collect information on immigration status will likely lead families to avoid seeking health care for themselves and their children, who may include U.S.-born citizens, which may lead to negative impacts on health.”

And we should always keep in mind that the population which faces these threats contributes mightily to the overall economy and well-being of all Floridians as they make up a huge percentage of the workforce:

“These impacts may continue to grow given the significant role immigrants play in Florida’s workforce, particularly in certain industries. Almost three-quarters of nonelderly noncitizen immigrants work, similar to the share of their citizen counterparts. Noncitizen immigrants make up 11% of the state’s overall nonelderly adult workforce, but they make up higher shares of workers in certain industries, accounting for almost four in ten (37%) of the state’s agricultural workers and almost a quarter (23%) of its construction workers, along with over one in ten of service (14%) and transportation (14%) workers. The impacts of lost workers in these industries may have larger ripple effects through the state’s economy and beyond.”

Moreover, undocumented immigrants contribute large amounts of revenue to local, state, and federal coffers but are denied access to Medicare and Medicaid coverage!

Undocumented immigrants contribute tens of billions of dollars in federal, state, and local taxes each year.

Discussions of immigrants and public benefits often overlook undocumented immigrants’ significant tax contributions. According to research conducted by New American Economy, undocumented immigrants contributed $20.1 billion in federal taxes and $11.8 billion in state and local taxes in 2018 alone.

The tax contributions of undocumented immigrants are critical to the viability of public health programs like Medicare and Medicaid. Between 2000 and 2011, undocumented immigrants generated a $35.1 billion surplus in the Medicare Trust Fund. States that expend the most in emergency medical care for undocumented immigrants (California, Texas, and New York) all also receive over $1 billion in state and local tax contributions from undocumented immigrants each year.” Fact Sheet-Undocumented Immigrants and Health Care

The United States already has high rates of uninsured people. Even with the passage of the Affordable Care Act, more than 10% of our non-elderly population is still uninsured.

The U.S. is the only high-income country that does not guarantee health coverage. As a result, the health of our people suffers and compares unfavorably to other wealthy nations.

• Health care spending, both per person and as a share of GDP, continues to be far higher in the United States than in other high-income countries. Yet the U.S. is the only country that doesn’t have universal health coverage.
• The U.S. has the lowest life expectancy at birth, the highest death rates for avoidable or treatable conditions, the highest maternal and infant mortality, and among the highest suicide rates.
• The U.S. has the highest rate of people with multiple chronic conditions and an obesity rate nearly twice the OECD average.
• Americans see physicians less often than people in most other countries and have among the lowest rate of practicing physicians and hospital beds per 1,000 population.
• Screening rates for breast and colorectal cancer and vaccination for flu in the U.S. are among the highest, but COVID-19 vaccination trails many nations.

This broader context of the limitations of our healthcare system reminds us of the precariousness of adding even more people to the vast numbers who are already without access to care by virtue of the impact of the new Florida law.

Further and sadly, the facts about punitive laws and policies on undocumented people’s health has been known for decades:

“We identified 32 articles evaluating the effects of punitive immigrant policies in the US passed after 1992. We found that undocumented individuals frequently reported refraining from or delaying seeking medical treatment due to fears of immigration enforcement. Even in cities with inclusive local immigrant policies, interviews with Latinx immigrants, health care professionals, and advocacy organizations revealed that documentation status still discouraged individuals from accessing care due to the overwhelming national immigration climate. Anti-immigrant policies have profound and quantifiable effects on the health of women and children. For example, regions subjected to anti-immigrant laws saw significant declines and delays in prenatal care, as well as fewer prenatal visits among non-US-born women compared to US-born women of similar educational attainment. Similarly, the number of Latinx children presenting to pediatric emergency departments decreased significantly following the 2011 passage of Georgia’s House Bill 87. Among the Latinx children that did present for emergency care, their severity of illness was significantly increased. Frequently, foreign-born Latinx women expressed feeling “trapped” by their inability to seek publicly-funded services which might lead to their being unjustly considered “public charges” and unable to apply for legal status.”

Implications for doctors and other healthcare workers

There is much discussion in the United States about the moral injury that doctors and other healthcare workers experience. “Moral injury” is understood to be the strong cognitive and emotional response that can occur following events that violate a person's moral or ethical code. Potentially morally injurious events include a person's own or other people's acts of omission or commission, or betrayal by a trusted person in a high-stakes situation. For example, healthcare staff working during the COVID-19 pandemic might experience moral injury because they perceive that they received inadequate protective equipment, or when their workload is such that they deliver care of a standard that falls well below what they would usually consider to be good enough.

I interviewed doctors in Florida about their views of the law. Unsurprising was how the law would further add to the moral injury doctors and other health professionals are already suffering:

“The challenges of providing medical care continue to mount in the post-Covid environment. At a time when the available healthcare workforce has significantly decreased, the burden of guiding patients through a care plan has increased dramatically. Access to tests and procedures, to medications---even to insurance---has diverted physician attention from caring for the patient to navigating a minefield of obstacles, Florida government among them. In a country where guns are the leading cause of death for children, it is illegal to ask parents if there is a gun in the home to educate them regarding safe storage practices.

We now have the burden of determining the immigration status of the patient before us. Much of this falls to the physician. "Moral injury"- knowing the right/moral/ethical course and being confronted with external forces that prevent the physician from providing what they know to be the best care is at epidemic levels. Faced with a critically ill patient, the last thing a physician wants to think about is, am I ALLOWED to care for this person?; no wonder so many physicians are considering leaving the profession.”

The new law in Florida puts additional stress on the doctors and health professionals who see immigrant patients. Many healthcare professionals might assume that one’s immigration status is a private matter, falling under the Federal protections for patients under the Health Insurance Portability and Accountability Act (HIPAA).

However, immigration status is NOT explicitly identified in the HIPPA. As such, the new Florida law places health care professionals in a dilemma: act to protect patients from known harm or comply with the law.

The American Medical Association Journal of Ethics has given guidance to doctors on this question:

“Undocumented immigration to the United States often presents with multiple stressors and contextual challenges, which may increase risk for mental disorders. For instance, physical, verbal, psychological and sexual violence is widespread among undocumented immigrants. Also, common to the undocumented experience is discrimination, stigmatization, marginalization, isolation, fear of deportation, exploitability, victimization, living in unsafe neighborhoods, and socioeconomic disadvantage. “

Clinicians recognize this reality, and it is a clinically relevant reason to ask patients about their immigration status. The study just referenced suggests that undocumented status is a risk factor for mental disorders. Pursuant to the HHS guidelines on personal health information (PHI), information about immigration status has a clear relationship to health. Therefore, immigration status—as information collected by the clinician—meets the definition of individually identifiable health information because it relates to the “past, present, or future physical or mental health or condition of an individual,” and thus should be legally, clinically, and ethically regarded as PHI.

Clinicians and healthcare organizations today may have questions about whether they are allowed or required to release a patient’s immigration status to federal or state governmental authorities. The simple answer is “no” because, as I’ve argued here, a patient’s immigration status can be considered PHI under the HIPAA Privacy Rule. Immigration status is sufficiently related to health that this information meets the Privacy Rule definition of individually identifiable health information and is therefore PHI. It is important for clinicians and healthcare organizations to understand that releasing a patient’s immigration status to authorities, without valid exception, is a HIPAA violation.

Ultimately, upholding this suggested ethical standard to not ask the patients questions about their immigration status or citizenship does put the clinician at risk. Laws and ethics are often in conflict.

The insights for health, healthcare, and healthcare workers embedded in the passage and implementation of SB 1718 shed light on the many failures in our nation’s approach to the care and well-being of our population. Whatever the motivations that exist for the development and passage of the law, there are predictable consequences worth noting:

1. People who need care will avoid seeking it for themselves and their children. Avoiding care often leads to unnecessary pain and suffering and often leads to more complex, more painful, and more life-threatening outcomes and expensive treatment when conditions are not prevented or caught in earlier stages;
2. Visits to emergency care services and other expensive procedures and treatments are often the result of untreated illness, which adds costs to our nation’s highest expenditures in the world for healthcare, while producing population health results which ranks at the bottom of other wealthy nations
3. Healthcare workers, already suffering burnout, anxiety, stress, and departures from the profession at rates higher than any time we know of, will have yet another level of anxiety added to their challenging professions and daily work life.

It is likely that many healthcare providers will not ask patients their immigration or citizenship status when they come for aid. Ethics, law, personal and professional beliefs and commitments will be tested, as well as job security. Where employees are unionized, collective bargaining may provide protections as well. However, in our highly polarized times, we cannot underestimate complex legal confrontations about the applicability of the laws. In such situations, healthcare workers will face risk as they care for patients in need. The implications of the passage and implementation of SB1718 are many, and very important to follow… which we will.

John August is the Scheinman Institute’s Director of Healthcare and Partner Programs. His expertise in healthcare and labor relations spans 40 years. John previously served as the Executive Director of the Coalition of Kaiser Permanente Unions from April 2006 until July 2013. With revenues of 88 billion dollars and over 300,000 employees, Kaiser is one of the largest healthcare plans in the US. While serving as Executive Director of the Coalition, John was the co-chair of the Labor-Management Partnership at Kaiser Permanente, the largest, most complex, and most successful labor-management partnership in U.S. history. He also led the Coalition as chief negotiator in three successful rounds of National Bargaining in 2008, 2010, and 2012 on behalf of 100,000 members of the Coalition.