Fraudulent Access to Entitlement Programs:
Is the Time Ripe for Legislative Intervention?

Michael S. Ewer, M. D., M. P. H., J. D., LL.M. Candidate

Health care in the United States, for those who enjoy unlimited access, is arguably the best available anywhere in the world. Our system of hospital and health care access has evolved through federal and state initiatives so that most who require emergency care are seen in our various emergency rooms under the guidelines of the Emergency Medical Treatment and Labor Act (EMTALA) regardless of ability to pay for the services needed. EMTALA and as case law are generally interpreted to require that patients be evaluated and stabilized prior to being discharged from a facility. Emergency rooms often take over the role of primary care physicians for those who cannot afford a traditional visit to a physician.

However, the limits of what constitutes emergency care are not altogether clear, and providers are sometimes faced with the dilemma of having to provide a series of costly or ongoing interventions as part of emergency care. While it may place a drain on the resources of some hospitals to provide such care, access under such circumstances has become part of our safety net that protects those otherwise underserved by an imperfect healthcare system.

Access under emergency circumstances is not the only way into our system for the uninsured or underinsured in need of care. State Medicaid programs, our charity hospitals, and other state and local programs providing financial assistance and care for the indigent are also part of the safety net; they, too, are costly programs funded, to large extent, by state and county assessments. They provide for some of the needed care beyond that dictated by EMTALA. These are entitlement programs, and to obtain care under such a program one must qualify, i.e., one must, on the one hand, demonstrate financial need, and on the other, be part of the group defined to be the beneficiary of the individual program. Treatment options that may cost many hundreds of thousands of dollars are regularly provided under such programs that include bone-marrow transplantation and coronary artery bypass surgery; the quality of care is often indistinguishable from that provided under private insurance programs.

It is not surprising that the limits of access are being explored through creative means by patients who feel that qualifying status may actually be a life or death concern. Some who do not qualify have a life-threatening illness for which therapeutic regimens are available in facilities in this country, and without which life may be significantly shortened. Such patients may be desperate to obtain access to which they are not entitled, even if doing so involves acts that otherwise might be considered morally and ethically wrong, or that are illegal. The threshold nature of some of our programs may allow qualification to an individual only if he or she dissolves a marriage through divorce as a mechanism to reduce total family income, and the disbursement of personal financial holdings and/or real property prematurely to reduce total net worth. Sometimes assets are concealed so that they are less easily identified. In some instances, those able and willing to work cease employment to reduce income. The question as to whether the couple in a stable marriage who choose to divorce, thereby creating a financially dependent individual for the sole purpose of obtaining access to health care for which he or she would not otherwise qualify have committed fraud becomes irrelevant; those who check qualifying status cannot and should not look into motives that can never be proven.

There are more obvious examples of fraud with regard to access to health care, i.e., assuming the identity of a qualified individual (with or without the knowledge of the person whose identity has been assumed), misrepresenting assets such as placing large sums of borrowed money in an account, making a small initial payment to obtain access into the program, and, once the treatment has been initiated and cannot be stopped, declaring indigence, and immigration fraud are extremes but are not unheard of. If someone with a fatal disease somewhere in the world feels that his or her only hope of cure and survival is to come to a world class facility, a desperate attempt may be made and any and every subterfuge stemming from that desperation appears to be justified. Some who come may have help from friends or relatives who are willing to assist in deceptions; others simply come on their own and appeal for care through local charitable groups or religious organizations. While it would be humane and caring for society to underwrite the costs of health care in this country and to accept all those in need, our country simply cannot afford to provide the desired level of care for all who would come to our shores for the specific purpose of seeking health care that they cannot afford and are not entitled to receive.

And what are the providers to do? If the subterfuge is recognized prior to the onset of treatment, such treatment, except in emergency situations, may be denied. But once treatment has been initiated there is a dedication and loyalty on the part of health care providers to follow through with such care. To do otherwise could be perceived as abandonment, might give rise to claims of malpractice, and may create divisive philosophical and ethical dilemmas that even institutional ethics committees find difficult or impossible to resolve, raising such questions as: (i) at what point in the ongoing care of an individual can we stop providing care without abandonment; (ii) when has the evaluation or treatment actually started, thereby requiring ongoing care; and (iii) if medically acceptable alternatives are available elsewhere for which the patient does qualify, may care be transferred even if the patient prefers that care be continued in the facility of his or her choice. Is it ever ethical to transfer care or cease to provide care if the patient declines transfer when one avenue of care is fully funded and the others genuinely burden the state? May a patient who has adequate facilities in his home country, and where total costs are covered in that country, be refused further care at state expense? Are we obligated to provided ongoing costly care simply because the patient prefers that it be provided in a facility with an international reputation? The answers cannot come from providers who are trained to provide health care rather than to second-guess the motives and assess resources of patients and the alternate facilities that may be available. The answers must come from the state governments which must establish both better guidelines and appropriate penalties for those who would aid and abet the improper access to health care through fraud; the present system does not sufficiently discourage people from recommending that friends and relatives come to the United States for the sole purpose of obtaining health care not available at home, and altering the facts of their immigration in an attempt to achieve a qualifying status. The status quo provides tremendous incentives to establish entitlement; the winners receive a windfall, and those who do not succeed have undergone no burden. State legislatures should consider these issues. There must be a level of consistency with regard to such issues, and the common law is also not a suitable forum to establish them.

Health care is a very costly enterprise. Our government has taken considerable steps to reduce fraud and abuse on the part of health care providers; it is right and proper that they have done so, and abuses, while they have not been eliminated, have, at least been reduced. We must now begin to also look at fraud and abuse on the part of consumers of health care. Ultimately, we must define better what constitutes appropriate care and the circumstances under which it should be provided. Until then, if there are costly loopholes and abuses, we must start to close them.