July 2, 2012 Newsletter
IMMIGRATION UPDATE: FOREIGN PHYSICIANS: RX FOR HEALTHCARE

July 2, 2012
By Robert D. Aronson

DEAR CLIENTS AND FRIENDS:

For over the past 20 years, our firm has practiced law at the intersection of immigration law and health care reform. There is a particular need for focused work in this area growing out of the palliative role played by International Medical Graduates (IMGs) in providing important gap filling services to address the disparities, inequalities, and shortages within the U.S. healthcare system. Therefore, last week's Supreme Court decisions – one essentially reaffirming federal authority in immigration law and the second altering substantially the architecture of the U.S. healthcare system – resonated quite deeply within our firm's collective professional lives.

The common, widespread interpretation is that these twin decisions are separate and unrelated judicial pronouncements tied together solely as representing political victories for the Obama Administration. But actually, there is a direct correlation between these two Supreme Court decisions that I wish to explore in this Newsletter.

At the risk of gross oversimplification, the Supreme Court decision largely upholding the "Patient Protection and Affordable Care Act" can be distilled as follows:

The federal government now has a substantially greater role in managing national healthcare policy in order to expand the health care safety net for the indigent and the medically underserved through a sustained commitment and national mobilization involving individuals (through mandates for compulsory enrollment in health care coverage), states (primarily through indigent healthcare/Medicaid reform), and the private sector (through healthcare exchanges and uniform policies based on federal guidelines covering medical coverage standards).

I would personally like to think that this healthcare reform measure will prove to be a more honest, forthright approach in which the responsibility to fund healthcare coverage becomes aligned more closely with the right to receive healthcare coverage, rather than entrusting our healthcare system to an ad hoc, reactionary patchwork in which the poor are forced to depend on emergency room services as their primary source of care (which is a terribly inefficient and costly mode of treatment) while the cost burden gets shifted to future generations given the substantial discretion enjoyed by the carriers to develop coverage programs in a non-transparent and perhaps self-interested manner.

As a direct consequence of this decision, healthcare planners now confront an uncharted and daunting terrain. The United States is now facing a situation in which up to 30 million individuals will have expanded access to healthcare services at a time of greatly diminished tax revenues available to pay for indigent care and an already overstretched physician workforce that can barely meet the current medical needs of the public.

So, perhaps a more fundamental question becomes how the healthcare system will meet these new challenges of expanded access, increased claimants, diminished revenues, and finite resources.

I am reminded of a quote from Abraham Lincoln who stated that "the dogmas of the quiet past are inadequate to the stormy present.… As our case is new, so we must think anew, and act anew. We must disenthrall ourselves…."

There is an immediate, pressing need for a basic reengineering of the manner in which we deliver healthcare services that must address a wide spectrum of issues, including: an outcome-based reimbursement system rather than solely fee-for-service; greater attention to health literacy for recipients; maximization of technology, particularly for rural and frontier regions; tort reform; emphasis on preventive medicine; integration of behavioral – physical – oral health; public health awareness campaigns; behavioral modification; consideration of alternative professional providers for certain health care services; sustained and measured consideration of end-of-life issues; expansion of the physician workforce; and increased utilization of alternative sources of physicians (such as IMGs) accompanied by incentives to channel them into socially desirable practice situations.

In my opinion, the current healthcare reform developments have a profound impact on immigration law. On a facile level, the Supreme Court holding in Holder v Arizona, the immigration decision, establishes federal primacy in the field of immigration, rather than a fractured, Balkanized system of individual state action. But on a more profound, fundamental level, this decision should be a strong wake-up call for enacting Comprehensive Immigration Reform, stemming from the basic reality that we cannot politically, economically, or ethically deport roughly 12,000,000 undocumented aliens, but rather need to develop a calibrated, carrot-and-stick approach that will balance out immigration enforcement, border security, and immigration benefit eligibility.

There are five main reasons suggesting that IMGs could productively contribute to healthcare reform:

1) Quantity: roughly 25% of Medical Trainees are IMGs, thereby providing a fairly plentiful source of new physicians;

2) Quality: examination test data suggests that IMGs have rough parity with their U.S. medical graduate counterparts, and in addition, both the medical profession and state licensing agencies impose strict quality control standards as a prerequisite to practice clinical medicine in the United States;

3) Cost Efficiency: medical education is an extremely expensive proposition, but in the situation of IMGs, the costs for the medical education has been undertaken abroad, thereby enabling them to enter clinical practices at a much lower price point;

4) Macro Shortages: every creditable study of the physician workforce chronicles a sharp and constantly growing shortage in the number of physicians now in practice in this country, meaning that the recruitment of IMGs simply does not displace job opportunities for U.S. physicians;

5) Immigration: implicit in immigration is the ability to induce certain desirable behaviors as a condition to obtain permanent residence status as well as other immigration benefits. Specifically, immigration can substantially influence IMG clinical practice patterns by conditioning the issuance of a green card to socially desirable medical service, such as taking up practice opportunities in medically underserved areas or other gap filling situations in the U.S. healthcare system.

To be sure, we are in a challenging and indeed a roiling legal environment for both healthcare reform and immigration reform. The time has now come to face this changed reality, and the challenge will be to create practical, rational reform measures that will serve the public good.

As always, please feel free to distribute this Newsletter to other interested recipients and by all means, please bring any questions or comments to our attention. It is always a pleasure to hear from those whom we serve.

Cordially,

ROBERT D. ARONSON

This memorandum is one of a series of communications prepared as a general public service to our clients and friends. The information herein presented is not intended nor should it be utilized as legal advice on any specific situation. Furthermore, given the rapid pace of change, the veracity of this information is constantly subject to modification and/or reversal. Rather, this piece represents a good faith attempt to orient clients and other interested parties served by Aronson & Associates to current immigration developments. This piece in no manner supercedes the need to seek competent legal advice when engaged in activities carrying possible immigration-related consequences.