In mid-September 2007, New York State officials announced that they would challenge CMS’ decision to deny Medicaid reimbursement of chemotherapy treatment for illegal immigrants with cancer. Under federal regulations, the only medical care for illegal immigrants reimbursable under the Medicaid program is “emergency care.” 42 CFR § 435.138. The definition of “emergency care” provided in the regulations, however, is ambiguous, and thus states have interpreted it differently, some providing only the care that takes place in an emergency room, and others providing care for any condition that could become an emergency or lead to death or serious illness without treatment. 42 CFR § 440.255.

Historically, New York has provided chemotherapy to illegal immigrants under its Medicaid program and has received federal matching funds for doing so. In August 2007, however, federal officials informed the state that, pursuant to an audit begun in 2004, the federal government would cease providing matching funds for this service. Some providers will continue to provide this service despite the lack of funds. For example, New York City public hospitals have announced that chemotherapy treatment for illegal immigrants will still be available at their facilities. They are currently investigating funding sources for this work.

Hospitals in other states that have historically provided chemotherapy to Medicaid-insured illegal aliens would be well advised to assure themselves that their services will continue to be reimbursed, and to be alert to the results of the New York issue.