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Amelia Valenzuela

Amelia Valenzuela, Affordable Health Care Coverage for Mexican Immigrants in the Southwest: State-initiated Reform in the Private and Public Sectors, 44 Arizona State Law Journal 1777 (Winter 2012) (Student Comment) (177 Footnotes)

      [Emergency Rooms] are the U.S. health care system's “safety net” for individuals without health insurance. Mandatory ER medical attention for the uninsured and for patients otherwise unable to pay for care was established in the 1986 Emergency Medical Treatment and Active Labor Act (EMTALA), which requires hospitals receiving Medicaid reimbursements to maintain an open-door ER policy. This means that emergency medical care is universally accessible at no up-front cost. In the decades subsequent to EMTALA, however, hospital ERs struggle to remain financially solvent under the weight of the mandatory provision of ER care coupled with changes in the health care system, and ER closures have proliferated throughout the country. From 1990-2009, 1,041 ERs closed, constituting twenty-seven percent of all hospital ERs operating in nonrural areas.

      One source of staggering ER operating costs is from uninsured immigrants who can gain initial access to the ER thanks in part to EMTALA. Among the uninsured, Mexican immigrants are a particular concern because (1) they are by far the most numerous immigrant group in the United States, and (2) they encounter obstacles in the health care system that uninsured U.S. citizens do not. EMTALA requires hospitals to treat uninsured Mexican immigrants with emergency conditions, but federal law bars all undocumented Mexican immigrants, and documented Mexican immigrants residing in the U.S. for five years or less, from qualifying for Medicaid. In addition, most cannot afford private health insurance. Thus, uninsured Mexican immigrants are stranded between federal policy and financial barriers, leaving hospitals with medical bills ineligible for private insurance or federal reimbursement.

      Hospitals in southwestern border-states have accrued enormous costs from uncompensated health care. The twenty-four counties along the U.S.-Mexico border spent $832 million on uncompensated care, one-fourth of which is attributable to undocumented immigrants. Non-border jurisdictions did not experience high rates of uncompensated hospital costs from undocumented immigrants. For example, Texas public hospitals reported spending $717 million on uncompensated care in 2008 and California spent $941 million on emergency Medicaid for uninsured immigrants in 2007. In contrast, Oklahoma reported it spent $9.7 million on undocumented immigrants in 2006, or less than one percent of its total health care costs. North Carolina spent less than one percent of its state Medicaid on uninsured immigrants in 2004. Southwestern border-state hospitals have reduced staff, increased rates, cut back on services, and decreased or ended charity care to their communities. State and local governments, largely responsible for public service costs from health care, have also been financially impacted. High costs have forced border-states such as Arizona to reduce state Medicaid funding to its poor and vulnerable populations.

      Southwestern border-states cannot afford to wait for the federal government to change its policies or to adequately compensate hospitals for mandatory care given to uninsured immigrants under EMTALA. They have large Mexican immigrant populations that will likely continue accessing the health care system primarily through ERs absent changes to health policy. The 2009 Affordable Care Act (ACA) does not offer much help to solve this particular problem. Though ACA will help millions of U.S. citizens purchase health insurance, ACA largely excludes immigrants from its benefits. Hospitals in Arizona, with its large Mexican population, would greatly benefit from increasing the number of its insured Mexican immigrants. To alleviate significant financial burdens on hospitals and their ERs, southwestern border-states should consider increasing their number of insured Mexican immigrants by adopting (1) a private binational health insurance program for documented Mexican immigrants and (2) a public health insurance program for undocumented Mexican immigrants.

      This article will explore two new health care policies Arizona can institute for uninsured Mexican immigrants and the challenges inherent in each approach. Part II describes the reasons why Mexican immigrants are largely excluded from the mainstream U.S. health care system and how this affects hospital ERs. Part III describes the private binational health insurance system initiated in California to increase health care coverage for documented Mexicans residing in the state. Part IV discusses how Arizona can reduce uncompensated hospital costs by increasing its number of insured Mexican immigrants through the two policy approaches noted above. Part V explains why Arizona must garner political support and assiduously market these health care plans to Mexicans residing in Arizona if it wishes to reduce ER costs from uncompensated care.

II. Mexican Immigrants in the U.S. Health Care System

      Many Mexican immigrants are uninsured. Only a third of all short-stay Mexican immigrants (in the United States for fifteen years or less), and only two-thirds of long-stay Mexican immigrants (in the United States for more than fifteen years), have health insurance. This is compared to eighty-nine percent of U.S.-born whites and seventy-seven percent of U.S.-born Mexican Americans who have health insurance.

      One reason for high uninsured rates is that Mexican immigrants have limited access to the private health insurance system. In the United States, employer-sponsored health insurance is the most common form of health care coverage, but it is not offered by all employers, and its prevalence varies across employment sectors. Mexican immigrants primarily hold jobs in industries that do not offer employer-sponsored health insurance. Additionally, the jobs held in these industries are usually low-wage, which means other private health insurance options are unaffordable. However, these are not the only barriers Mexican immigrants face.

A. The Special Case of “Recent” Mexican Immigrants: Exclusion from Public Health Care

      Mexican immigrants also face restricted access to public health care. The federal government through the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA) increased restrictions on Medicaid eligibility for documented immigrants. Before PRWORA, all documented immigrants who met poverty level requirements were eligible for Medicaid. After PRWORA, documented immigrants are not eligible for Medicaid for their first five years of residence in the United States, and states do not receive federal financial assistance for medical care given to this group. Though PRWORA permits partial federal Medicaid reimbursement for emergency care, these reimbursements do not cover the actual cost of ER care.

      States were forced to decide if they would permit immigrants excluded from federal Medicaid to qualify for state Medicaid programs. Among southwestern border-states, California, Texas, and New Mexico offer state programs, but Arizona does not. This means Arizona hospitals are responsible for the cost of care given to uninsured Mexican immigrants who do not qualify for Medicaid, even when such care is mandated by EMTALA.

B. Financial Strain on Hospitals

      Hospitals are accruing significant costs from providing medical care ineligible for reimbursement. The mandatory provision of emergency health care, the categorical exclusion of Mexican immigrants from public health care coverage, and the de facto exclusion of many Mexican immigrants from private health insurance threaten the financial integrity of the hospital ER. Mexican immigrants receive the majority of their medical care from the ER, yet they are often unable to pay for care out of pocket, and they often do not have health care coverage either. As a result, ERs have found it difficult to remain financially solvent.

      In response to ERs' plight, the federal government temporarily increased funding for hospitals, but these resources proved inadequate. In 2003, the Medicaid Prescription Drug Improvement and Modernization Act allocated $250 million for uncompensated ER services provided to undocumented immigrants or to Mexican citizens with border crossing cards. However, the total amount spent by hospitals on uncompensated care was much greater than $250 million, and the extra federal money only covered about fifteen percent of these uncompensated costs. Worse, the federal government does not seem inclined to increase funding again. The Border Health Care Relief Act of 2009, which would have extended the 2003 allocation, did not pass. In 2011 another such bill was introduced in Congress. Its future is uncertain.

      Southwestern jurisdictions are under more financial strain than other states with smaller Mexican immigrant populations. Medical institutions like St. Joseph's Hospital Medical Center in Phoenix, Arizona argue they are not able to afford long-term care for uninsured immigrant patients, and caring for them takes away from their ability to care for U.S. citizens. Though some would argue the easiest solution would be to end all ER care to all Mexican immigrants that cannot pay, not only is that a violation of federal law which carries its own fines, but it is also not a long-term solution for health care providers and individuals that are “adversely affected by high uninsured rates” in their communities. To protect the financial integrity of their hospitals, southwestern border-states should look for creative solutions to increase the number of insured Mexican immigrants, thereby increasing the number of Mexican immigrants eligible for cost-of-care reimbursements.

III. California's Approach to Providing Affordable Insurance for Documented Mexican Immigrants: Private Binational Health Insurance

      California permits certain licensed insurance companies to sell employer-sponsored health insurance to documented Mexican immigrants that offer the majority of care in Mexico. Known as binational health insurance plans, they are so-named because they offer medical coverage in networks that include health care providers in the United States and in Mexico. The 1975 Knox-Keene Health Care Act (Knox-Keene) authorized California insurance companies to sell binational health insurance plans that offered health care services in California and in Mexico. More than twenty years later, Knox-Keene was amended to permit Mexican companies to also sell binational plans, provided they met Californian regulatory requirements. Knox-Keene binational plans are limited to employer-sponsored health insurance and can only be sold to documented Mexicans residing in California.

      Though binational health insurance has existed in California since the 1970s, for many years Californian health insurance companies did not sell binational health insurance plans. However, when Mexico's Sistemas Médicos Nacionales, Sociedad Anónima (SIMNSA) was licensed under the Knox-Keene amendment in 2000 and began to sell binational health insurance, a strong market emerged. Encouraged by SIMNSA, other California-based private health insurance companies soon developed their own binational health insurance products. Blue Shield of California, HealthNet, Sekure Healthcare, and an Employee Retirement Income Security Act (ERISA) plan offered by the Western Grower's Association are examples of Californian companies that have begun to sell binational plans.

      Most binational plans sold by Californian companies offer emergency and preventative health care services in California and Mexico. Southern California, Tijuana, and Mexicali generally constitute the coverage areas. For services not available in Mexico, Californian companies can refer subscribers to covered health care providers in California. Health maintenance organization (HMO) and preferred provider organization (PPO) plans are available.

      SIMNSA plans are similar to Californian company plans in that they offer HMO and PPO plans; however, they differ slightly because, except for emergency care which is covered in California and in Mexico, SIMNSA offers their subscribers coverage exclusively in Mexico.

      The California Department of Managed Health Care (DMHC) supervises binational health insurance plans. The DMHC requires Californian companies to ensure their Mexican health care providers maintain state health care standards. The DMHC can also impose fines and revoke licenses when Californian companies do not comply with state health regulations. The DMHC cannot directly enforce California state regulations on Mexican companies, but it can revoke their licenses to sell binational plans in California.

      Employers and their employees who choose binational plans receive significant financial savings. For example, HealthNet's “Mexi-Plan” costs $75 per month, forty percent cheaper than comparable U.S. employer-sponsored health plans. For a family of three, HealthNet's “Salud con HealthNet” costs under $4,800 per year. Compared with the average of $20,000 spent on health insurance by U.S. families with employer-sponsored plans in 2011, binational plans are significantly more affordable for documented Mexican immigrants.

      Encouraged by relatively low costs, employers in southern California have begun to offer binational health insurance plans to their Mexican immigrant employees. Employment sectors with a high number of Mexican workers that have not traditionally offered employer-sponsored health insurance, such as the textile, agricultural, and service sectors, have seen increased health care coverage through binational plans. It is estimated that 150,000-200,000 Mexican immigrants have enrolled in a binational health insurance plan since 2000. However, over two million Mexican immigrants in California remain uninsured. This exposes weaknesses in California's system. Explanations vary. Some point to the geographical restrictions in the plans. Others say the tenuous immigration status of many Mexican immigrants makes them reluctant to frequently cross the border. Still others say not enough employers and qualified documented immigrants know about binational health insurance. Before Arizona would sanction private binational health insurance, it would behoove the state to address the challenges seen in California's system.

IV. A Proposed Health Care Model for Arizona: Private Binational Health Insurance and a Public Health Plan

      Arizona is one such southwestern state facing problems from uncompensated ER costs that can benefit from increasing health care coverage for Mexican immigrants residing in state. The five largest hospitals in Arizona have spent hundreds of millions of dollars on uncompensated care, much of it attributable to uninsured Mexican immigrants. State Medicaid reimbursements and uncompensated hospital costs associated with Mexican immigrants are over $500 million. In addition to financial problems, Arizona ERs are also overcrowded, have the longest waiting times in the country, and can experience temporary shut downs when they get “too busy.”

      In response to the economic crisis that began in 2008 and to the overwhelming cost of uncompensated care, the Arizona legislature has proposed severe budget cuts to its Medicaid programs in order to reduce health care costs. However, Arizona has other options beyond cutting Medicaid spending to reduce health care costs. Better access to primary care through expanded health care coverage is another way Arizona can reduce health care costs. The Morrison Institute of Public Policy at Arizona State University concludes, “[n] ot having health insurance results in using fewer health services and greater likelihood of costly health outcomes later in life.” The uninsured are more likely to postpone health care because of perceived high costs and inadequate access to a regular primary care doctor. Health problems that could have been treated at a relatively lower cost if they were diagnosed early remain untreated until they balloon into emergencies that require more invasive and more expensive procedures. Offering affordable health care coverage to the 600,000 documented and 455,000 undocumented Mexicans immigrants who reside in Arizona opens the door to more affordable primary care. The question that remains is how Arizona can offer affordable health care to Mexican immigrants without expending more state resources. One such solution is a two-fold approach that would (1) offer private binational health insurance for documented Mexican immigrants and (2) offer a health care plan funded by the Mexican government for undocumented Mexican immigrants. Neither of these two approaches directly requires state or federal funding.

      Many Mexican immigrants travel to Mexico for health care services. In 2009, through binational health insurance coverage or paying out-of-pocket, about 500,000 Mexicans crossed the California-Mexico border for health care services in Mexico. Adopting private binational health insurance in Arizona will encourage more documented Mexican immigrants to utilize primary care doctors in Mexico, thereby reducing visits to the ER. However, because the goal is expanded health care coverage for all Mexican immigrants, binational health insurance is insufficient. It is unlikely undocumented Mexicans will risk leaving and reentering the United States to receive medical care through a binational plan. The health needs of undocumented Mexican immigrants should be addressed through an in-state public health plan funded by the Mexican government.

A. Documented Mexican Immigrants in Arizona and Private Binational Health Insurance: State-Initiated Health Insurance Reform

      The Arizona legislature should reform state health insurance regulations to expressly authorize insurance companies licensed in Arizona to sell binational health insurance plans to documented Mexican immigrants. Arizona's Insurance Code provides regulatory guidelines for health insurance in Arizona. The Department of Insurance (DOI) is the state agency that regulates insurance companies licensed in Arizona, and insurance companies licensed in the Arizona jurisdiction are subject to the DOI's authority. The DOI can take remedial actions against companies that do not comply with its health standards through civil penalties or suspension or revocation of licenses to sell health insurance in Arizona. Currently, under the Insurance Code, companies licensed outside of Arizona can sell insurance plans that offer coverage exclusively in Mexico to Arizona residents. However, the DOI does not regulate these plans and does not offer consumer protections to those enrolled. The Insurance Code is also silent on whether health insurance companies can offer insurance coverage simultaneously in Mexico and in Arizona.

      Without express authorization of binational health insurance its legality remains unclear. Health insurance companies would be unlikely to invest in developing or marketing a binational health plan without a clear understanding of its legal boundaries. To protect Mexican immigrants enrolled in binational health insurance plans, clarify the scope of such plans, and encourage companies to offer this product, the Insurance Code should expressly define and authorize binational health insurance with Mexico. Additionally, the Insurance Code should give the DOI regulatory authority over these plans, similar to that allotted to the DMHC in California.

      Unlike California, Arizona should not authorize Mexican health insurance companies to sell binational plans in Arizona. The DOI's ability to ensure compliance with Arizona licensure law by a Mexican company may prove difficult. For example, the DOI has no authority to levy civil penalties against a foreign company, nor can it enter Mexico to inspect Mexican health care providers for compliance with Arizona health regulations. Instead, the DOI should require insurance companies to be licensed in Arizona and subject to Arizona jurisdiction before they can sell binational health insurance. This would allow the DOI to have the jurisdictional authority to fine noncompliant companies if the need arose.

      The DOI should also be granted the express powers to levy monetary penalties against Arizona insurance companies if their Mexican health care providers fail to meet Arizona health standards. This power may help allay fears that Mexican providers would give consumers sub-standard care. Binational health care consumers could alert the DOI if sub-standard care was received from a Mexican health care provider by filing a complaint with the DOI Consumer Affairs Division. Consumer complaints could be used to threaten Arizona insurance companies that contract with non-compliant Mexican providers with civil penalties, licensure suspension, or revocation if the complaints do not cease within a reasonable period of time. Stringent civil penalties would be an incentive for health insurance companies to ensure their Mexican providers are following DOI standards.

      Furthermore, unlike California, binational health insurance should be sold through both individual and employer-sponsored plans so that employer participation is not required before Mexican immigrants could purchase binational health insurance. Finally, as in California, the medical coverage areas should include providers in Arizona and in Mexico.

      1. Binational Health Insurance for an Arizona Market

      Binational health plans are well suited to documented Mexican immigrants in Arizona because of Mexico's proximity and its developed health care infrastructure. Many private Mexican hospitals are equipped with technology and staff comparable to U.S. hospitals. The Mexican city of Hermosillo, for example, is both close to the Arizona border and has hospitals with modern medical infrastructure. For example, the Centro Internaciónal de Medicina (CIMA) hospital network in Hermosillo is held to U.S. quality standards and is accredited by the Mexican Secretary of Health. Hermosillo hospitals also regularly treat Mexican patients transferred from Arizona hospitals and have an established relationship with the University of Arizona Medical Center.

      Tijuana is another Mexican city accessible from Arizona. Health care providers in Tijuana have successfully contracted with Californian health insurance companies and could do the same with Arizona companies. Additionally, some American hospital corporations are building their own facilities in Mexico hoping to capitalize on medical tourism from the United States. For example, the Texas-owned CHRISTUS hospital chain has a hospital in Monterrey that is accredited by the Joint Commission International, one of the most internationally respected hospital accreditation organizations. Private American companies such as Blue Shield and Health Net, already-licensed health insurance providers in Arizona, could tailor their Californian binational products to documented Mexican immigrants in Arizona.

B. Undocumented Mexican Immigrants in Arizona: Mexican-Government Sponsored Health Care

      Unlike documented Mexican immigrants, undocumented Mexican immigrants could not realistically benefit from private binational health insurance. Crossing the border is difficult, expensive, and dangerous, and it is unlikely that undocumented immigrants would risk leaving the United States for health care in Mexico. Purchasing health insurance with coverage in the United States is also too expensive for the majority of undocumented Mexican immigrants. Additionally, there is no state sponsored medical care for nonemergency services for undocumented immigrants. Undocumented Mexican immigrants need a publicly funded health care program in Arizona that is financed partially by the participants, but primarily by the Mexican government.

      1. Mexico's Health Plan for Migrant Workers

      The Mexican government should be encouraged to fund a preventative health care plan for undocumented Mexicans living in Arizona. Unlike the U.S. health care system, in Mexico, the majority of Mexican citizens access health care through publicly funded programs. Through federally funded public health care programs such as Seguro Popular (Popular Insurance), Mexicans can access affordable health care services regardless of their economic status. In fact, the Mexican Constitution bestows all citizens with the right to health care.

      However, Mexican citizens who work in the United States do not enjoy this constitutional right and are largely left without access to affordable care. Some within the Mexican government would like this to change. Mexico's National Institute of Public Health (NIPH) has expressed support for a health insurance plan for Mexican migrant workers employed abroad. Proponents of the plan argue that Mexican citizens, regardless of their geographic location, have a constitutional right to affordable health care. Known as Salud Migrante (Migrant Health), the health plan would subsidize preventative health care services supplied by U.S. health care providers to Mexicans working in the United States. Migrant Health would be financed by enrolled migrant workers, their U.S. employers, and by Popular Insurance. Under Migrant Health, Mexican workers in the United States would utilize providers in nonprofit and community health centers.

      Migrant Health as proposed by NIPH is a good starting point, but as it currently stands, it is not well suited to Arizona because (1) community health centers and non-profit organizations in Arizona are over-utilized and underfunded; (2) undocumented immigrants using Arizona-funded health care is a controversial policy; and (3) U.S. employers of undocumented Mexican immigrants would not likely contribute to the health plan because employing undocumented workers is illegal. An approach better suited to Arizona is a health plan program where: (1) participants utilize private health care providers for preventative health care services, (2) funding comes from participants and the Mexican government, and (3) the plan is administered either through U.S.-based Mexican consulates or through a third-party private insurance plan under contract with the Mexican government.

      2. Mexico's Interest

      Mexico would receive tangible benefits it if were to improve access to health care for undocumented Mexicans in Arizona. A subsidized health plan would further the Mexican government's interests and support the Mexican workers' families living in Mexico. Mexico receives enormous economic benefits from Mexicans who work in the United States. Remittances sent to families in Mexico are a vital part of the Mexican economy and are the country's second highest source of revenue. Health care coverage improves both physical and mental health and, generally speaking, healthy workers are more productive. This is especially true for Mexicans employed in jobs that require physical labor. Therefore, Mexico has an interest in their citizen's health while they work in the United States.

      3. Health Plan Financing

      Health plan financing should come from participants and from the Mexican government and should be structured similar to Popular Insurance. Enrollees in Mexico's Popular Insurance pay an annual fee that is calculated based on their income. Those with lower incomes pay lower fees, and vice versa. Participants in an Arizona-based migrant health program could pay into a similarly tiered system. Additionally, participants could be required to pay a one-time application fee for a health insurance I.D. card administered to plan enrollees. Finally, small co-pays, due at the time of appointment with a health care provider, could also be required. With these three sources of independent funding for the program, the Mexican government may be encouraged to cover the remaining costs as they do for Popular Insurance utilized in Mexico.

      4. Health Plan Administration

      Acting through its U.S. consulates, the Mexican government could create and distribute an official health insurance I.D. card for enrollees in this plan. The cards would be similar to I.D. cards issued by private health insurance companies and would include the individual's name and billing information. Mexican consulates regularly issue I.D. cards called the “matricula consular” to Mexican immigrants, regardless of their immigration status. As such, issuing a health plan I.D. card would likely be within their administrative ability. Health plan information could be added to current matricula consular cards, or a separate health I.D. card could be created.

      The matricula consular in its current form is an acceptable I.D. for some private health insurance companies. For example, Health Net, a health insurance company with binational plans, accepts the matricula consular card as a valid form of I.D. to purchase health insurance. A specialized health care card issued by a consulate could perceivably gain the same credibility as the matricula consular with private companies and providers. Though Arizona's state agencies cannot recognize the matricula consular as a valid form of I.D., this does not affect the ability of private businesses to recognize the card. Private health care providers would likely be able to accept the matricula consular or a consulate health plan card, as they are private, not state, entities.

      In the alternative, if the administration of the plan is too burdensome for the consulates, the Mexican government could contract with third-party private insurance companies to administer the health plan. Under this approach, experienced private U.S. insurance companies could do what they already know how to do, such as negotiating set prices with doctors and navigating the regulatory and legal scheme of state and federal insurance regulations. The Mexican government could pay an administrative fee to the private insurance companies in return for their day-to-day operation of the plan.

V. Selling Health Care to Arizona: How Arizona and Mexican Immigrants Could Accept Two New Health Care Plans

      The benefits of binational health insurance and a public health plan will need to be explained to U.S. citizens and Mexican immigrants who reside in Arizona. According to a joint study by University of California at Berkeley's California Program on Access to Care and the Health Initiative of the Americas, sixty-two percent of uninsured Mexican immigrants are willing to pay for low-cost binational health insurance. Like California, Arizona has a sizeable uninsured Mexican immigrant population that is ineligible for Medicaid and has additional economic and employment barriers to health insurance. Other southwestern states with similar demographics, such as Texas, have explicitly rejected binational health insurance. The support of the Arizona legislature and the general public is critical to health care reform and the implementation of these two new health policies. Why should Arizona residents support binational health insurance and a health plan for undocumented Mexicans when other similarly-situated states have not? Arizona residents should support these two health initiatives because they would support businesses, improve overall health, and reduce pressure on the hospital ER.

A. Private Support for Binational Health Insurance and a Public Health Plan

      Arizona employers concerned with health care costs can benefit from binational health insurance. U.S. employers are financially responsible for a large portion of health care spending. When health care costs increase, profits suffer. The Phoenix Chamber of Commerce supports affordable health care for business owners and would like the number of Arizona residents with health insurance to increase. In 2011, the Phoenix Chamber of Commerce held a “Health Care Issue Committee Meeting” to discuss “strengthen[ing] Arizona's health care system through reducing the number of uninsured persons and creating an environment of affordable and accessible health insurance.” Representatives from private insurance companies, local law firms, public community health centers, and small businesses voted unanimously in favor of increasing health insurance enrollment. Binational health insurance furthers the Phoenix Chamber of Commerce's goals by offering employers low-cost, employer-sponsored health plans and by increasing the number of insured workers living in Arizona. As a logical matter, employers and the Phoenix Chamber of Commerce should support binational health insurance.

      Small businesses would also particualry benefit from binational health insurance. Health Care Group (HCG) is a division of AHCCCS. It provides reduced-cost health insurance to small businesses that cannot afford employer-sponsored health insurance in the open market. HCG is under pressure to facilitate low-cost employer-sponsored health insurance for small businesses without using state money. To accomplish this, HCG needs a large pool of low-risk healthy workers to subsidize costs from high-risk individuals. Mexican immigrants, who are on average relatively healthy, can help subsidize high-risk individuals and keep premium costs low for small employers by choosing a cheaper binational health insurance plan.

      In addition to the business community, the medical community has also expressed support for medical care access for immigrants. The American Medical Association (AMA) supports health care for undocumented immigrants and is opposed to the criminalization of health care provided to this group. The AMA's position is important to the success of a health plan for undocumented immigrants for three reasons. First, opposition to the criminalization of care makes it more likely that private practice doctors would be willing to treat undocumented immigrants financially supported by the Mexican government. Ability to pay, not citizenship status, is more important to a private health care provider. Second, because possession of this health plan I.D. card can reveal the holder's immigration status, physicians must agree to not alert immigration authorities. If they alerted authorities, undocumented immigrants would be unlikely to participate in the plan. Third, the AMA is also willing to work with local and state medical societies to oppose any legislative proposals that would criminalize giving health care to undocumented immigrants. The AMA could provide support to local doctors who decide to participate in any future Mexican-sponsored health plan.

B. Public Support for Binational Health Insurance and a Public Health Plan

      Not only is support of the private sector important, governmental support and collaboration will also be necessary for successful implementation. The U.S. and Mexican governments both officially recognize the need for comprehensive health care policies along their shared border. The United States-México Border Health Commission (USMBHC) was established in 2000 to address this need. USMBHC is comprised of state health officers, community members, and federal officials from the four U.S. and six Mexican border-states who share information and collaborate on improving binational health issues. High uninsured rates in the border region are a major concern of the Commission. The USMBHC also sponsors an annual Binational Health Week. Binational Health Week could be used to bring together public officials and private companies from Arizona and Mexico to facilitate the cross-border cooperation to implement binational health insurance and a Mexico-sponsored plan.

      Arizona's Officer of Border Health (OBH) is another public organization concerned with border health that collaborates with USMBHC. Like the USMBHC, OBH also strives to improve access to health care in the border region. The OBH coordinates binational public health issues with Sonora, Mexico, the Mexican state that shares a border with Arizona. The OBH could be used as a forum to coordinate with health care providers in Sonora and private insurance companies in Arizona for development of binational plans.

      Arizona's judicial branch has also opined on health care for undocumented immigrants. In Scottsdale Healthcare, Inc. v. AHCCCS, the Arizona Supreme Court upheld Arizona law where undocumented immigrants “are eligible for publicly funded medical coverage . . . for an emergency medical condition.” The Court rejected AHCCCS's bright-line rule that would only reimburse hospitals up to the point of patient stabilization. Instead, the Court held hospitals will be reimbursed for care given if the medical condition suffered by the patient is still manifesting itself by acute symptoms and “that these acute symptoms [are] sufficiently severe that ‘the absence of immediate medical attention’ could reasonably be expected to put the patient's health in serious jeopardy . . . .” This “case-by-case” approach gives hospitals an opportunity to recover for more care than ACCCHS's bright-line rule would have allowed. Looking to the Court's precedent, if a Mexico-sponsored health plan is implemented, perhaps the Court would support the expansion of health care coverage to uninsured Mexican immigrants.

C. ¡Gritálo! Marketing New Health Care Options to Mexican Immigrants

      Informing eligible Mexican immigrants about private binational health insurance and a Mexico-sponsored health plan is also important to the success of the health care policy initiatives. Changes to the Arizona health care system should be accompanied by an outreach program targeted towards informing those who are eligible to apply. Research shows that some immigrants who qualify for state or federal programs are uninsured because they do not understand their health care benefits. Confusion about eligibility, concerns about adverse immigration consequences, and language barriers are all common reasons why eligible immigrants do not apply for health benefits. As non-native English speakers, Mexican immigrants face both linguistic and cultural barriers that can cause confusion about eligibility for health care plans. One way to inform Mexican immigrants would be to collaborate with the various Mexican consulates spread throughout Arizona, who are already charged with the responsibility of keeping this community abreast of changes in Arizona public policy.

      1. Ventanillas de Salud

      Ventanillas de Salud (Ventanillas), a health care program run by Mexican consulates in the United States, may be able to take on this informational role. Ventanillas provides basic health care services and information about the U.S. medical system to Mexican immigrants. Located inside the Mexican consulates, Ventanillas is in direct contact with the Mexican immigrant community. There are five Ventanillas in Arizona, located in Phoenix, Tucson, Douglas, Yuma, and Nogales.

      As a center for health care information dissemination, Ventanillas is an ideal place to disseminate information about binational health insurance and a Mexican-sponsored health plan. Private health insurance companies could supply Ventanillas with information in Spanish about their binational health insurance products, telling Mexican employees to ask their employers about low-cost binational plans. Additionally, undocumented Mexicans at Ventanillas could ask questions about a Mexican-sponsored health plan in their native language without the fear of deportation or other adverse immigration consequences they may have if forced to obtain information from an American agency.

      Collaboration with Ventanillas is also advantageous because it is an adaptable organization that changes as the needs of its community change. As evidenced by the health policy changes the organization has made throughout its existence, Ventanillas understands that the health needs of the Mexican immigrant community differ over time. Currently, the premier concern of Ventanillas is increasing Mexican immigrant access to affordable health care services. Ventanillas may be inclined to lend support and legitimacy to health policy changes that address its key concerns. Finally, given the negative attitude of many policy makers in Arizona towards Mexicans--and Latinos generally --in the state, without the legitimacy of Ventanillas support, it may prove difficult to convince Mexican immigrants in Arizona to sign up with either plan. Therefore, collaboration with Ventanillas is a prudent step towards success.

VI. Conclusion

      Government policy and economic realities have given Mexican immigrants little choice but to resort to the ER as their primary source of health care. Implementing a two-pronged public and private approach to health care for Mexican immigrants can help southwestern border-states like Arizona increase the number of insured Mexicans and relieve ER strain. Southwestern border-states are geographically and demographically situated to take advantage of lower-cost health care in Mexico for documented Mexican immigrants. With the advent of Popular Insurance in Mexico, U.S. and state officials should encourage Mexico to cover their most vulnerable citizens working abroad, undocumented immigrants. Though health care is often seen through the lens of individual care, the over-use of ERs brings consequences to entire communities. All residents, regardless of citizenship status, suffer when their closest ER is overwhelmed or closed. Binational health insurance and a public health plan sponsored by Mexico are two ways southwestern border-states can increase the number of insured Mexican immigrants, lower uncompensated hospital costs, and improve the financial status of hospital ERs.

. Note and Comment Executive Editor, Arizona State Law Journal. J.D. Candidate, May 2013, Sandra Day O'Connor College of Law at Arizona State University; B.A., English and Hispanic Studies, Wheaton College, 2007.