Immigration Enforcement for Health Care Facilities
Alerts
January 30, 2025
The Trump Administration’s flurry of executive orders directing the implementation of immigration policy objectives to carry out the “largest domestic deportation operation in American history” has many hospitals and other health care providers deeply concerned and anxious about visits from U.S. Immigration and Customs Enforcement (ICE) and uncertain about what to do if they arrive. Adding to the concern, the Department of Homeland Security (DHS) recently lifted Biden Administration restrictions on DHS enforcement activity in certain designated “sensitive areas”, including hospitals and medical offices, churches, and schools. Despite the fact that DHS has stated it is prioritizing the identification and removal of immigrants without legal status who have committed crimes, hospitals and other health care facilities can best protect their interests and the interests of their patients by being prepared for encounters.
ICE Authority in Health Care Facilities
Health care facilities may be concerned that ICE will show up and insist they be permitted to access exam rooms or other non-public treatment areas to question patients about their immigration status and/or detain those who are unable to demonstrate their legal status. Although ICE agents may be free to enter any public areas of a health care facility, such as the lobby, cafeteria, or parking lots/structures, ICE generally cannot enter non-public areas of a health care facility without the facility’s consent or a valid judicial warrant signed by a federal judge, absent exigent circumstances (such as an urgent national security or public safety threat). A judicial warrant must be issued by a federal court, signed by a federal judge, and include a time frame within which the search must be conducted, a description of the premises to be searched, and a list of items or persons to be searched for and seized. An administrative arrest or removal warrant issued by DHS (Form I-200 or I-205) is not a judicial warrant and does not authorize ICE agents to enter private areas of a health care facility without consent.
The likelihood of ICE agents arriving at a health care facility with a valid judicial warrant is relatively low because judicial warrants are granted in response to, or in connection with, a criminal action or investigation. It is far more likely that ICE agents will appear with, and try to enforce, an administrative arrest or removal warrant, in which case the health care facility is not required to permit the ICE agent(s) access to non-public areas of the premises or to provide any information to the agent(s) about whether any named individuals are even present at the facility.
HIPAA and Law Enforcement
Health care providers (a/k/a “covered entities” under HIPAA) are generally not obligated to share the immigration status – to the extent known – or any other protected health information (PHI) with ICE agents. As covered entities are aware, the definition of PHI is expansive and extends to any individually identifiable health information held or transmitted by a covered entity in any form or medium, including without limitation name, address, demographic information, immigration status, discharge status, anticipated discharge date, biometric identifiers such as finger or voice prints, and full-face photographs.
The HIPAA rules with respect to the disclosure of PHI to law enforcement officials are well-established. HIPAA may permit the disclosure of PHI to law enforcement in certain circumstances set forth in the regulations, however HIPAA does not require the disclosure of PHI to law enforcement. Furthermore, the facility’s health care providers and staff are not obligated to speak with ICE agents or other DHS personnel and should be advised that they are not authorized to do so or to release any information or documentation on behalf of the covered entity. A covered entity that decides to provide any information to an ICE agent or other DHS personnel should only do so under the circumstances permitted by HIPAA with respect to law enforcement (See 45 C.F.R. § 164.512 and HHS Guidance) and in consultation with legal counsel.
Recommendations for Health Care Facilities
In the context of denying ICE agents’ access to non-public areas and PHI, health care facilities and providers should be careful not to make any statements or take any actions that could be interpreted as obstructing or interfering with the ICE enforcement action. It is illegal to intentionally protect a person who is known to be in the United States unlawfully from detention. Obstructing or otherwise interfering with certain ICE activity or actively helping a person evade ICE can be a crime subject to prosecution under federal law.
Therefore, DO NOT:
- Hide or assist patients in leaving the premises or evading ICE if agents arrive;
- Provide false or misleading information;
- Discard or otherwise destroy documents, records or other information about the patient; or
- Give legal advice to patients other than informing them that they have the right to remain silent and request an attorney (avoid directing them to refuse to speak to or cooperate with the ICE agent(s)).
Health care facilities must balance their obligations not to obstruct or interfere with ICE or other DHS enforcement activity with their concomitant obligations to comply with HIPAA and other applicable privacy laws (e.g., state law), and to provide a safe environment of care.
Toward that end, we recommend that health care facilities DO:
- Establish a response team or point of contact at the facility responsible for any interactions with ICE agents, other DHS personnel, or law enforcement officials. Consider appointing a Privacy Officer, representative from the legal department, or senior administrator with authority to access legal services. Certain facilities with robust security teams should consider a dyad approach – pairing a security officer with one of the above individuals. Many security officers are former law enforcement officers and can be effective in de-escalating tense or intimidating situations when ICE agents arrive at the facility. If feasible, facilities should dedicate back-up coverage for times when these individuals are unavailable.
- Assess whether and to what extent immigration status is relevant to the provision of care and under what circumstances it should be documented in the patient’s medical record – if at all.
- Assess and review policies and procedures with respect to interactions with law enforcement and disclosure of PHI to law enforcement. These policies should be updated to address potential immigration enforcement and to ensure consistent application of the policy in such circumstances. Ensure the relevant policy and procedure addresses:
- Establishing the agent’s identity and credentials and reviewing the nature and scope of any documentation, such as a warrant, presented by the agents with legal counsel;
- Notifying and training providers and other personnel who may encounter ICE agents that they are not permitted to disclose PHI and if the agent wants to access any non-public areas of the facility, immediately notify without the designated response team or point of contact; and
- Keeping and maintaining detailed records of the encounter including documenting the name, telephone number, badge/ID number, and business card of the agent(s); copying and maintaining any documents presented by or given to the agent(s) (to the extent possible); obtaining a receipt for any records taken by the agent(s); taking photographs or video of any search conducted pursuant to a warrant; and preparing a summary of what happened during the visit (e.g., after-action report).
- Ensure that “front-desk” staff and any other staff who are likely to first encounter ICE agents when they arrive are trained on the facility’s policies and procedures. Provide them with printed copies of the policy (or a summary of its key elements) and ensure they are aware that they must immediately escalate the situation to the dedicated response personnel without taking any further action individually.
Please contact a member of the Shipman immigration enforcement team or a member of our health care practice group listed below to further discuss your immigration or HIPAA/privacy concerns and/or for assistance with the development and implementation of policies and procedures or preparedness plans.
Immigration Enforcement Team:
Brenda A. Eckert
Nina Pelc-Faszcza
Morgan Paul Rueckert
Health Care Practice Group: