Richard Krasner: Immigration Reform on the Horizon – What it Means for Medical Tourism and Workers’ Compensation

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Five years ago, members of a risk management discussion group I belong to on Yahoo Groups raised the question of whether or not illegal immigrants (i.e. undocumented immigrants) were entitled to workers’ compensation benefits. The answer most of the respondents gave was yes, but with some restrictions, depending upon the state. One respondent in particular even provided the group with documents from the Independent Insurance Agents & Brokers of America, Inc. (IIABA) that gave the pros and cons in the debate on whether undocumented immigrants were entitled to benefits or not. The purpose of this post is not to rehash the debate points, but to explore what impact impending immigration reform, which has been promised by the Obama administration in the upcoming second term of his presidency, will have on workers’ compensation. I will also explore the likelihood that injured newly legal immigrant workers, especially from Mexico and other Latin American countries, will avail themselves of the benefits of medical tourism to their home countries as an option if injured on the job. According to the IIABA White Paper, which cited a Pew Hispanic Center report published in 2006, there are probably 11 to 12 million undocumented immigrants in the US, depending upon how many “self-deported” recently due to the current US economic slowdown, of which, demographically, this represents 5.4 million men, 3.9 million women, and 1.8 million children. In addition, there are 3.1 million children who are US citizens having been born here (64 percent of all children of the undocumented) from one or more parent. President Obama’s Executive Order last year gave many of these children a reprieve from deportation while they are attending college here, and until more comprehensive reform can be achieved for all undocumented immigrants. Undocumented immigrants account for almost one-third of all foreign-born residents of the US, and about 80 percent of these are from Mexico and other Latin American countries. The report also states that out of the total number of undocumented adults, 9.3 million, 7.2 million (77 percent) are employed and account for around 5 percent of the US workforce. They comprise a disproportionate percentage in some industries, such as 24 percent of farm workers, 17 percent of cleaning workers, 14 percent of construction workers, and 12 percent of food preparers. These industries typically account for much of the claims filed under the US workers’ compensation system. Within a particular industry, undocumented workers comprise a higher percentage of more hazardous occupations, e.g., 36 percent of insulation workers and 29 percent of all roofing employees are estimated to be undocumented. In my post, The Stars Aligned, I briefly touched upon the issue of immigration reform’s impact on medical tourism for workers’ compensation in regard to Mexican workers in the US. But since President Obama, and Florida Sen. Marco Rubio have recently outlined different reform plans, which I will discuss here in this post, it is important to mention first how undocumented workers are treated under the various laws each state has established to govern their workers’ compensation systems. The other document I mentioned that one of the respondents had forwarded to the discussion group was a chart of the laws governing workers’ compensation and undocumented workers. Undocumented workers are entitled to workers’ compensation benefits in 38 states, however, six states have statutes that allow or restrict benefits for various reasons, such as if the employment was obtained under false pretenses (FL); disability benefits were payable if they were unable to work because of the injury (GA); they were entitled to medical, but not disability benefits because of a commission of a crime under the Immigration Reform and Control Act (IRCA) of 1986 signed by Ronald Reagan (MI); vocational rehabilitation benefits were covered since the worker could get employment outside the US (NV); disability payments were recoverable at US wages rather than those of the home country, if the employer was aware or should have been aware of the undocumented status (NH); disability benefits were not payable if the worker was unable to work due to his status, and not the injury (NC). Three states, California, Georgia and Nebraska, have statutes that indicate that undocumented workers are not entitled to benefits in certain situations. California case law established that undocumented workers could be refused vocational rehabilitation benefits. Georgia case law ruled that disability benefits were not payable if the worker was unable to work due to his status and not his injury, and Nebraska case law established that a worker named Ortiz could be refused vocational rehabilitation benefits because he could not legally work in the US and did not plan to return to Mexico to work. Only Wyoming has a statute that expressly includes only “legally employed…aliens.” And case law in 1999 confirmed that undocumented were not entitled to benefits. Eleven states, Alaska, Delaware, Indiana, Maine, Missouri, Rhode Island, South Dakota, Vermont, Washington State, West Virginia and Wisconsin, were listed in the chart as unknown as to whether or not undocumented are entitled to benefits. As we begin the second Obama Administration, immigration reform has risen to the top of the list, only to be preceded by the debt crisis and the fiscal cliff. As I mentioned above, both President Obama and Sen. Rubio have outlined their own versions of what immigration reform would look like. Sen. Rubio’s plan would rely more on skilled workers, such as engineers and seasonal farm workers, while tightening border enforcement and immigration laws — something that would please his right-wing allies on talk radio. Sen. Rubio’s plan would not provide blanket amnesty to those already here. On the other hand, President Obama’s plan, as outlined in a recent New York Times article, would seek to give undocumented workers a path to citizenship. Sen. Rubio’s plan would focus more on merit and skill as prerequisites for entry into the US, much like earlier immigration laws passed in the 1920’s and other decades. The President’s plan would be broader and more immediate, and would probably have less of an impact on the economic stability of those industries that currently rely on undocumented workers. Whatever form immigration reform will take, the opportunities to offer medical tourism as an option to injured undocumented workers, once they achieve some legal form of citizenship, will no doubt increase. The likelihood that something will be done this year has already been the topic of many news programs and even has been discussed by congressional leaders, such as Sen. Harry Reid, the Senate Majority leader. Once the currently undocumented can legally remain in the US and continue to work in the industries they occupy, the more likely the possibility that they would opt to go to their home country for medical treatment, should they get injured on the job. This is true especially with benefits that include not having language or cultural barriers and the ability to be visited by friends and family living there. Given all this, they will be more open to receiving treatment at facilities they normally could never get into. And as many of these countries are fast becoming “rising stars” as medical tourism destinations, the more likely they will want to get treated at the best hospitals in their countries, which will have a huge impact on their recovery, well-being and standing with friends and family. Also, the financial burden of not having to look for a job back home and being able to return to the US will convince them to opt for medical tourism as injured workers.

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