Medical facilities, such as hospitals, doctor’s offices, accredited health clinics, and urgent care centers, are now at risk of Immigration and Customs Enforcement (ICE) visits. For more than a decade, the Department of Homeland Security (DHS) established and followed guidance restricting immigration enforcement action in sensitive locations. These protected areas included places of worship, schools, school bus stops, and healthcare facilities, and at them, ICE generally did not conduct apprehensions, arrests, interviews, searches, or surveillance.
In 2021, the guidance was expanded, reinforcing the two-fold need for this standing policy: protect immigrants’ well-being and their ability to carry out basic necessities for their health and safety, while also protecting the institutions and employees that serve them.
However, on January 20,2025, the Department of Homeland Security expanded the scope of immigration enforcement actions by ICE to include “sensitive areas” like medical facilities. Under the new guidelines, ICE can now target staff, patients, and visitors who they expect to be unauthorized. This will ultimately discourage immigrants from seeking necessary medical attention as well as disrupt the provision of medical services by immigrant healthcare workers.
To mitigate risks and maintain a safe place, healthcare facilities must be prepared to effectively respond to ICE if they show up. Understanding the facilities’ obligations as well as individuals’ rights is crucial for an appropriate response to any enforcement action that occurs:
- The Fourth Amendment. The Constitution’s Fourth Amendment protects all individuals from unreasonable searches and seizures. This includes searches within private spaces. ICE agents must have a judicial warrant signed by a federal judge or consent from an authorized person to enter any private area.
- The Fifth Amendment. The Fifth Amendment protects a person’s right to remain silent, which means they do not have to answer questions from law enforcement or sign any documents. Patients and staff may refuse to answer ICE questions or sign any documents.
- Patient Privacy. The Health Insurance Portability and Accountability Act (HIPAA) protects patients’ health information and gives them rights over how it is shared. A patient’s immigration status is considered individually identifiable health information and is protected by HIPAA. Healthcare organizations that disclose a patient’s immigration status to ICE without the patient’s consent could face penalties under HIPAA. Providers have no affirmative legal obligation to report a patient’s immigration status to federal immigration authorities.
As with any emergency preparation, it is fundamental that healthcare facilities develop plans and policies to address these interactions with ICE with the support of immigration counsel, including:
- Law Enforcement Interaction Policy. Create a policy that outlines the steps for interacting with law enforcement. The policy should limit cooperation when there is no judicial warrant and instruct authorized persons and staff to document interactions with law enforcement.
- Educate Staff and Patients. Staff training must cover an individual’s rights under the Fourth and Fifth Amendments. Staff must know that any information within “plain view” in a public area can be inspected and anything overheard may be used as probable cause to initiate a search, even in private areas. Educating staff and reassuring patients is fundamental to ensuring their safety as well.
- Review Facility Layout. All spaces within a facility should be assessed to clearly and visually designate which spaces are public and which are private. Public areas may include waiting rooms and areas, parking lots, cafeterias, and gift shops, and will be accessible to ICE and other law enforcement without a warrant. Private areas, such as exam rooms, should be limited to patients, providers, and staff.
- Limit Collection of Immigration Status. It is best practice to avoid collecting or storing patients’ immigration status or immigration-related information. If the facility must collect it, avoid including this information in the patient’s medical and billing records.
- Separate Personnel Files and I-9s Documentation. Personnel files should be stored separately from I-9 employment eligibility verification documentation. Mixing these documents could inadvertently give ICE access to immigration status information during an immigration enforcement action.
- Keep Your Immigration Counsel Contact Information Close. Healthcare facilities should consult with immigration counsel to review their policies and procedures and keep contact information readily available. Legal experts should be accessible quickly if an enforcement action unexpectedly occurs.
Medical facilities are a vital resource in their local communities. The health and welfare of all members of their communities are top priority, and facilities should take all precautions to protect the rights of their staff and patients. By understanding their legal obligations and preparing for enforcement actions, healthcare facilities that work with immigration counsel will continue to provide the best care to the community they serve—even if ICE shows up at their facilities.
The material contained in this article does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.
Reprinted with permission from the March 5, 2025 edition of The Legal Intelligencer© 2024 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. ALMReprints.com – 877-257-3382 – reprints@alm.com.
