|
Getting your Trinity Audio player ready...
|
The Trump administration has been actively enforcing immigration policies, even in locations that were previously protected. If immigration officials visit your healthcare practice, here’s what you need to know.
In 2011 and 2021, the U.S. Department of Homeland Security (DHS) limited the government’s ability to carry out immigration enforcement activities at “sensitive locations,” including schools, hospitals, and places of worship. However, the second Trump administration rescinded these protections. As a result, officials from the U.S. Immigration and Customs Enforcement (ICE) may now approach and enter healthcare practices to locate and detain immigrants for deportation.
The administration has stated that it will prioritize the arrests of undocumented immigrants with criminal histories. However, healthcare practices should be prepared to handle encounters with ICE to protect their patients, employees, and business interests.
Fourth Amendment Protections
Basic constitutional protections remain in effect when ICE officials approach a healthcare practice. The Fourth Amendment guarantees protection from unreasonable searches and seizures in private spaces. Except when narrow exceptions apply, ICE officials need a judicial warrant to enter private areas where people have a reasonable expectation of privacy, such as patient examination rooms. A judicial warrant must be signed by a federal judge or magistrate to be valid.
A judicial warrant differs from an administrative warrant. Unlike a judicial warrant, which comes from a judge, an administrative warrant is issued by an immigration agency and signed by an immigration officer or judge. Administrative warrants do not authorize ICE to search private spaces.
Fifth Amendment Protections
The Fifth Amendment guarantees the right to remain silent when questioned by law enforcement. This means that you, your staff, and your patients have the right to remain silent when questioned by ICE officials. Any statements given voluntarily to ICE can serve as probable cause for a search, seizure, or arrest.
HIPAA Protections
HIPAA regulations protect patient privacy even when a valid warrant is presented. Protected health information (PHI) includes any identifiable health details about a patient, including immigration status, if known to the practice. HIPAA does not require healthcare practices to disclose PHI to law enforcement for law enforcement purposes without patient consent.
Under HIPAA, healthcare practices may disclose PHI to law enforcement in response to a court order, warrant, subpoena, or summons, but they are not required to do so. This means that even if ICE presents a valid warrant, a healthcare practice is not obligated to disclose a patient’s immigration status.
Public Spaces and Plain View
While ICE officials generally cannot enter or search private spaces without a valid warrant, they do not need one to seize evidence in plain view from a location where they are lawfully permitted to be. In other words, ICE officials can collect evidence from public spaces, such as waiting rooms and lobbies, without a warrant. To protect patient privacy, ensure that physical and digital files containing PHI are not visible or accessible from any public areas within your practice.
Minimizing Disruption to Patient Care
If ICE officials enter or attempt to enter your healthcare practice, the situation can be distressing for patients and staff alike. To minimize disruptions to patient care, designate specific staff members as points of contact for ICE officials. These individuals should:
- Politely but firmly refuse consent for searches of private areas.
- Review the validity of any warrant presented.
- Document the interactions.
Additionally, your practice should establish private areas that ICE officials may not enter without a valid warrant. Only providers, patients, and those necessary for patient care should be allowed in these areas. Your point of contact should direct ICE officials away from these areas.
Implementing Policies and Training
Given the seriousness of immigration enforcement actions, it is essential to have clear policies and staff training in place. Best practices include:
- Whenever possible, avoid collecting immigration status information. If obtained, do not include it in medical or billing records.
- Ensure that designated staff document all ICE interactions, including officials’ names and badge numbers, the duration of their visit, the type of warrant presented, and any attempts to exceed legal authority.
- Inform patients of their right to remain silent by displaying posters or other signage in accessible areas.
What Not to Do
While it is crucial to protect patient privacy, you should not obstruct lawful government activity. Do not provide false or misleading information to ICE officials or destroy documents containing patient information, as this could result in criminal liability.
Additionally, do not provide legal advice to your patients beyond informing them of their right to remain silent.
Staff as Targets of Immigration Enforcement
ICE may visit your practice to identify or detain an employee rather than a patient. However, HIPAA does not protect information contained in the employment records of covered entities. In other words, unless an employee is also a patient, their information is not subject to the same protections as PHI.
Although HIPAA protections generally do not apply, constitutional protections do. Employees have the right to protection from unreasonable searches and seizures and the right to remain silent.
However, your practice could face liability if you employ undocumented workers. Under the Immigration Reform and Control Act of 1986, it is unlawful to hire undocumented immigrants knowingly. ICE may conduct a workplace inspection to enforce this law. If you receive a Notice of Inspection from ICE, you will have at least three business days to provide your employees’ Form I-9 (Employment Eligibility Verification) and any supporting documents for review.
As this is a time-sensitive matter, you should immediately consult an immigration attorney if you receive a Notice of Inspection. Proper documentation of your employees’ work authorization can help minimize this risk.
Get Legal Support
Encounters with ICE at your healthcare practice can be disruptive and legally complex. Review your existing policies and make adjustments as needed. If you operate in one of the states where we have licensed attorneys, we can help you revise your policies or develop a response plan. Schedule a consultation to discuss your options.
This blog is made for educational purposes and is not intended to be specific legal advice to any particular person. It does not create an attorney-client relationship between our firm and the reader. It should not be used as a substitute for competent legal advice from a licensed attorney in your jurisdiction.
