It is by now common knowledge that on Inauguration Day, January 20, 2025, President Trump signed numerous executive orders geared toward the implementation of his immigration policy objectives, setting the stage for what he has called “the largest domestic deportation operation in American history.”

Less well known is the directive issued the following day by Acting Department of Homeland Security (DHS) Secretary Benjamine Huffman lifting Biden administration restrictions on Immigration and Customs Enforcement (ICE) agents that prevented the arrest of immigrants without legal status in certain specified sensitive areas, such as hospitals, churches, and schools. Thus, immigration enforcement personnel are now permitted to find individuals without legal status in or near sensitive areas, including hospitals and medical clinics.

Then, on January 26, The Washington Post reported that quotas of between 1,200 and 1,500 arrests per day had been placed on immigration enforcement agencies. As a result, there is a growing concern among health care providers who treat populations likely to contain disproportionate numbers of undocumented individuals that ICE agents will request information from them about their patients, including protected health information (PHI), and may even seek to question or detain patients when they have been admitted to the hospital or come to a clinic to obtain treatment, or about visitors to the facility. 

This Insight provides background about immigration enforcement, describes what happens during an ICE raid, and offers information regarding policies that health care providers should have in place to be prepared for a patient- or visitor-focused enforcement action at their facility.[1]

What Could Happen During an ICE Raid?

In light of these recent changes to ICE policies, hospital systems and other medical providers should be prepared for the possibility of increased immigration-related law enforcement activity. Raids conducted by law enforcement agents are not announced in advance, and it has been reported that in recent years, ICE has used increasingly aggressive tactics in connection with federal immigration enforcement. Reports of ICE enforcement since the inauguration show federal agents wearing technical gear, which can be an alarming sight in a patient-centered care environment. One substantial concern is that ICE and other law enforcement agents will arrive at hospitals and health care clinics and insist that they be permitted to enter treatment areas to question patients about their immigration status and detain those not able to demonstrate they are in the United States legally.

Law enforcement agents are free to enter any public areas of a business, such as the lobby or a parking lot. However, to enter non-public business premises, which includes patient evaluation and treatment areas and administrative offices, the agent must have a signed judicial search warrant, i.e., issued by a judge and not merely an administrative warrant from an agency. While the agent can also enter with the consent of the health care provider, the provider must take care to uphold privacy protections, notably, the Health Insurance Portability and Accountability Act (HIPAA) and state privacy laws, even if the provider opts to respond to immigration enforcement requests.

What Can Health Care Providers Do Now to Prepare?

It is imperative that health care providers take the following steps in advance to prepare for a potential onsite ICE enforcement activity:

• Assess and review the entity’s policy on responding to law enforcement. Many hospitals and other providers currently maintain policies on federal/local investigations and interactions with law enforcement. These policies should be updated to address the potential for immigration enforcement and to ensure consistent application across differing situations. Many hospitals and other providers have frequent contact with local law enforcement and are used to responding to police inquiries.
• Designate a person in advance within the Legal Department (preferred) or senior on-site administrator with access to legal counsel to be the primary point of contact. A backup liaison should also be available during off-hours.
• Establish basic protocols for the designated entity representative to follow, including obtaining identification of the law enforcement officers (i.e., name and business card). This should include reviewing with legal counsel the type and scope of documentation presented by the agents to justify their inquiry to determine whether it aligns with the request being made.
• Provide a checklist of the basic protocols for the designated entity representative to follow, and keep copies in an easily accessible location, including on the designated representative’s work-related cellular phone.
• Provide training to security and “front desk” personnel (and whoever else is likely to be the first person encountered) regarding how to respond to a variety of potential law enforcement scenarios, including raids, targeted enforcement involving those with criminal histories, document requests, and requests for information. This should include obtaining identification of the law enforcement officers, reviewing the materials to determine whether the agents have judicially authorized search warrants (as required to enter non-public business premises) and/or only administrative subpoenas/deportation orders, referring them to the designated entity representative, and requesting they remain in a specified office while the designated representative evaluates the appropriate response.
• Notify and train personnel who may encounter ICE agents that they are not authorized to provide information or documentation or permit entry to non-public areas of the provider’s premises without direction from the designated representative and that they should be courteous and fully document all occurrences and actions of the agents.
• Notify appropriate staff they must not provide legal advice to patients or employees who may be affected by immigration enforcement measures. Instead, if they wish, they may make available pamphlets or other literature regarding immigrant rights from recognized immigration support organizations and refer them to such organizations for further information.
• Connect with legal counsel specializing in health care, privacy, and immigration law to obtain guidance regarding internal policies, procedures, and training and support to the designated entity representative.
• Assess whether, and to what extent, information regarding immigration status should be obtained from patients.

What Else Should Health Care Providers Know?

Health care providers are generally not obligated to share the immigration status (if known) of their patients, nor are they obligated to provide immigration officials with access to treatment spaces in their facilities, which are non-public, absent a judicially issued search warrant or a warrant to arrest a specific individual. While HIPAA generally permits the disclosure of PHI to law enforcement in limited circumstances, as described in the regulations, it does not require disclosure of PHI. The definition of PHI is, of course, quite comprehensive and includes information such as name, address, date of birth, immigration status, admission status, and anticipated discharge date. Visitors to a facility will not have the same HIPAA protections as patients.

The staff of health care providers are also generally under no obligation to speak with ICE agents or other immigration enforcement personnel and should be advised they are not authorized to speak or release any documentation or information on behalf of the provider entity. Legal counsel should be consulted to determine what disclosure is permitted under HIPAA based on the documentation presented and what response, if any, is required by such documents.

With all this in mind, health care providers should be careful not to engage in a physical or verbal altercation with any law enforcement officer or otherwise be seen as obstructing or interfering with the government’s actions. Note also it is illegal to intentionally protect from detention a person who is in the United States unlawfully. Balancing this with the ongoing obligation to observe HIPAA and other privacy laws, as well as holding law enforcement to their legal standards for entry and access to patients and visitors, requires some analysis and judgment. This is the basis for recommending the designation (in advance) of a Legal Department or other senior on-site administrator with access to legal counsel to be the primary point of contact for law enforcement personnel, including for after-hours inquiries.

ENDNOTE

[1] As employers, you may also be interested in a companion Insight, “The New Trump Administration’s Immigration Enforcement Policy: What Employers Must Know,” as well as the blog post “Responding to Law Enforcement Demands for HIPAA Protected Information” and the video below.

Additional Authors: Stephen R. Kleinman and Jennifer M. Nelson Carney