The original policy, issued by the Immigration and Customs Enforcement (“ICE”) agency in 2011, prevented ICE enforcement actions from taking place in these sensitive locations. Enforcement actions include interviews, arrests, searches, inspections, and surveillance. Enforcement actions can also include obtaining protected health information. The new directive rescinds these protections, which means patients at medical facilities and other sensitive locations are no longer protected from immigration enforcement actions.

Medical facilities and other sensitive locations must respond to properly executed court orders or warrants for immigration enforcement. However, healthcare entities also have obligations under state and federal law to protect privacy and patient rights. It may be helpful for healthcare entities to prepare in advance for potential interactions with ICE, to ensure that personnel who may interact with immigration enforcement are informed of their role and know who to contact. Healthcare facilities may consider:

• Train Employees on Public vs. Private Areas. Although ICE and other federal agents may enter public areas (such as the waiting room or parking lot) in hospitals and healthcare facilities, they are generally prohibited from entering nonpublic spaces, such as private treatment rooms, without a valid warrant or consent from an authorized representative. ICE agents may also look at anything within plain view – including any papers, records or computer screens that are visible from public areas. Medical facilities should train employees on the areas ICE agents may enter without a warrant, to avoid inadvertently consenting to a search of private areas. It may also be helpful to have a written policy defining which parts of the premises are publicly accessible and which parts are not. Medical facilities should also consider whether it is possible to view computer screens, patient documents, or other sensitive information from public areas.
• Designate Representatives to Respond. Medical facilities should designate primary and back-up personnel to be the entity’s key representatives for the interactions with ICE agents. The representatives should be well-trained in the legal and healthcare compliance considerations of these matters.
• Prepare Written Response Protocols. It may be helpful to have a written plan that explains to employees the procedures for different types of ICE visits and enforcement activities.
• Maintain Compliance with Privacy Laws. Healthcare entities will also need to be sure they continue to comply with state and federal laws protecting the privacy of patient and healthcare information, including the Health Insurance Portability and Accountability Act (“HIPAA”). HIPAA only permits disclosure of protected health information to law enforcement in certain circumstances when required by law (for example, pursuant to a court order or judge-signed warrant). It is important for healthcare entities to understand the circumstances where disclosure is permitted and where HIPAA does not permit disclosure.

For more information or questions, please contact any of the healthcare attorneys at Montgomery Purdue, including Jake Pendergast and Sara Campbell.