Hospitals and Other Health Care Sites Are No Longer Protected Areas—Here Are Your Next Steps
On January 21, Acting Department of Homeland Security Secretary Benjamine Huffman long-standing Department of Homeland Security that designated certain sites (such as hospitals and health care facilities) as “protected areas” or “sensitive locations” where immigration enforcement was to be avoided. As such, immigration authorities (including Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP)) can now take enforcement actions in these sites without any additional considerations.
Hospitals should take immediate steps to ensure that potential visits by immigration or other law enforcement officials do not interfere with patient care or impede other important state and federal privacy protections afforded to hospitals and patients.
Background
Numerous state and federal laws protect patients’ rights, regardless of immigration status. For example, The Emergency Medical Treatment and Active Labor Act (EMTALA) guarantees medical treatment for all people who arrive at emergency departments in hospitals that accept Medicare, regardless of legal status or ability to pay. Moreover, the Health Insurance Portability and Accountability Act (HIPAA) provides broad protection from disclosure of private health information of patients, including any characteristics that could uniquely identify an individual, with limited exceptions for law enforcement use. Several states also provide similar protections.
When law enforcement officials show up at a hospital, it is often without notice. Even the most highly professional law enforcement officials may be very intimidating to hospital staff and may ask for information or access to locations beyond what they are entitled to under the law. It is critically important that hospitals be prepared to respond appropriately to balance the interests of the hospital, staff and patients.
Immediate Steps Hospitals Should Take
- Review and Update Policies. Most hospitals have policies in place to address situations where law enforcement seeks information, both through written and in person requests. If a hospital does not have such a policy, it should develop one immediately. If it does, it should have its legal team review and refresh the policy to ensure it is up to date and provides the proper guidance to staff.
- Train Staff. Hospital staff have likely been trained in the past on how to respond to law enforcement inquiries, but such training may not be front of mind in light of their other responsibilities. Hospitals should remind their staff through training notices or other communications of their responsibilities in these situations.
- Designate Senior Hospital Official to Handle All Inquiries. To ensure law enforcements are handled consistently and appropriately, hospitals should make clear to staff that all such requests by law enforcement should only be handled by designated senior administrators. Protocols should specifically identify the senior individuals to refer such inquiries, and front line staff should never make decisions about how to respond to law enforcement on their own.
- Make Sure Legal is Involved. The designated senior hospital administrator should have a very close connection with the hospital’s legal office—or outside counsel if the hospital does not have an in-house lawyer—and should communicate with the lawyer as early as possible. Hospitals that do not have in-house counsel should take proactive steps to arrange for outside counsel to be available to help in such situations on very short notice.
- Understand the Difference Between Enforcement Documents. A hospital administrator should consult with their legal team with all questions, but there is some basic information that is important for them to understand. A warrant or court order, authorized by a judge, often requires immediate action to respond, but other documents, even those that may look like official law enforcement documents, may not overcome other protections. For example, an administrative warrant by ICE, which is typically used by such officials, is not approved by a judge and, therefore, does not give officials the right to compel hospital employees to follow the order, or grant the official access to the facility. Subpoenas or Notices to Appear typically do not require any kind of immediate action by the hospital or may not be targeted toward the hospital at all. Understanding that not all such documents are the same is important in order to determine how to respond appropriately.
- Direct Patients to Resources. Hospitals may also consider having information available to their patients about other services that can help support them. Legal Aid organizations often have resources available, including free legal representation, to help patients navigate through difficult immigration issues to ensure that their rights are protected.
Hospitals should, of course, cooperate with law enforcement officials in their efforts to carry out their responsibilities. However, the first duty of a hospital and its staff is to support the health of their patients and communities. Hospitals should be vigilant in enforcing those rights and protecting their patients under the law, no matter their immigration status. Preparation is the key to ensuring that hospitals are in a position to strike the right balance.
For more information, feel free to reach out to Doug Brown () or Eric Gold ().
