When ICE Comes Knocking, Know Your Rights – And Protect Your Staff and Patients

Given the recent uptick in immigration enforcement, there is a real risk that ICE may visit your healthcare facility. 

That acronym, “ICE,” stands for U.S. Immigration and Customs Enforcement. One of the many executive orders signed by President Trump last week revoked a longstanding policy that prevented agents from going to certain “sensitive areas” such as hospitals and schools to determine someone’s immigration status.

Previously, the belief was that everyone should be entitled to seek fundamental services like healthcare and education without fear of encountering federal government authorities. The Trump Administration disagrees with that principle.

Those of us in healthcare need to understand what ICE agents can and cannot do. Fortunately, the answer is relatively straightforward. ICE is basically the same as any other police authority.

Generally speaking, government agents are free to go any place in your organization that the public may go. If your waiting room is freely open to the public, and they wish to enter it, I am not aware of a strong legal argument to prevent it. However, agents are not permitted to go into patient care areas or other areas that are not open to the public at large. In fact, the Health Insurance Portability and Accountability Act (HIPAA) effectively requires you to keep government agents out of patient care areas – unless the agent arrives with a search warrant.

You’ll know a search warrant when you see it, because it will have the magic words “search warrant” at the top. No other document permits the agents into private areas. Agents may present with an “arrest warrant.”

An “arrest warrant” authorizes agents to, as the name suggests, arrest a person, but it doesn’t authorize them to enter private property like a patient care area to get that person. Basically, the arrest warrant allows the police to arrest the person once the agents encounter them, but it doesn’t compel anyone to allow a search. Repeating that, if agents have a search warrant identifying your location by address, they get in; if they have an arrest warrant, they don’t.

While most government officials will respect those limitations, you may find some agents who believe that threats and bullying will permit them to get what they want. If you encounter such a situation, I encourage the use of the American Civil Liberties Union (ACLU) Justice App. It permits you to record interactions with police officials and uploads it immediately to the cloud.

The app is free.

As long as you aren’t physically obstructing the agents, you have an absolute right to record an agent’s activities.

At times, officers get very mad at being recorded, and may assert you are obstructing justice. Courts consistently reject that argument, explaining that the First Amendment ensures the right to record police. 

Immigration policy is complicated, and I won’t pretend to know how the United States should determine who can and cannot enter the country. Reasonable people can clearly differ.

But I would hope we would all agree that whatever our immigration policy is, every person in the country should be treated with kindness and respect. In the healthcare world, there are longstanding ethical and legal principles requiring treatment of all individuals, whether they are kind or mean, innocent or guilty.

I remember a Friday afternoon when a hospital called asking what to do when a patient presented to their locked psych unit asking to be kept on a hold, and confessing to a double murder, but asking the hospital not to contact police. The hospital wanted to know whether they should, or were required to, honor the request for confidentiality.

The answer was that as long as the person wasn’t posing a threat to anyone else and was willing to remain confined in the locked unit, the law prohibited that organization from notifying the police of the patient’s presence. Just as lawyers are required to protect the confidentiality of our clients, healthcare organizations can only report patients when they pose a threat to others or some other law specifically requires reporting.

While HIPAA does allow notices to law enforcement in many situations, remember that when state law is more protective of patients, it controls. In many states there is a high level of protection for patient confidentiality.

This is a situation where you can’t rely on a national publication to help you understand all requirements, because state law matters too. There are some states where it will be permissible to provide information to ICE if you so choose (though absent an explicit state law, you will not be required to do so.)

The bottom line is that you need to understand how your state law treats requests from law enforcement. You can then treat ICE the same way you treat requests from other police agencies. 

As we have discussed before, the fact that an officer yells at or threatens you does not, in any way, give them the automatic right to information. Patient confidentiality has long been protected by the common law for a very good reason; it improves public health.

The current efforts by ICE do nothing to change that longstanding common-law protection.