Implications of New Federal Immigration Policies for Health Care Facilities, Part 1: Preparing for an Onsite Enforcement Action

Under the DHS directive, officers from US Immigration and Customs Enforcement (ICE), US Customs and Border Protection, and other DHS agencies, such as the Fraud Detection and National Security Directorate (FDNS), may now conduct searches, serve subpoenas, and execute arrests in health care settings. ArentFox Schiff has received several questions about the directive from our health care clients, and we have prepared general responses to address these questions in a two-part blog post. In this first post, we focus on training and preparing staff for interactions with law enforcement.

We emphasize that there are many federal and state agencies that may be involved in immigration enforcement actions, and officers have varying degrees of authority. These frequently asked questions are intended to highlight some of the primary considerations in preparing for such enforcement actions. It is not a comprehensive list of all topics to cover in preparing for such investigations and actions. If you would like to discuss how to develop a comprehensive plan or protocol, please contact the authors of this article or the usual ArentFox Schiff attorney who handles your matters.

Q: What should we do if immigration enforcement officers come to our health care facility?

A: In the event immigration enforcement officers conduct an onsite visit, health care facilities should follow their established protocols for interacting with law enforcement. These protocols should identify both an internal employee and legal counsel to serve as the main points of contact with the officers, minimizing the potential for confusion and inconsistency that could result from multiple facility staff interfacing with the officers. The protocols should also stress the importance of memorializing all interactions with law enforcement in writing. The record should include details about officers’ contact information; copies of any documentation, such as a warrant or subpoena, that the officers bring; and an inventory of any items the officers take from the facility.

If officers conduct enforcement activities on facility grounds, the facility designee should work with the officers to ensure the activities are not in plain view of patients and visitors. This will help to minimize disruptions to patient care and maintain patient privacy. Additionally, if officers arrest any patients or employees, the facility designee should ask the officers where they are being taken and get the contact information for the detention center for the individual’s emergency contact and family.

Q: Can immigration officers access all areas of our health care facility?

A: Law enforcement does not need permission to enter public spaces, such as lobbies, waiting areas, or hospital cafeterias. However, to enter a private space, such as a patient treatment area or medical record room with sensitive patient information, immigration enforcement officers must be authorized pursuant to a valid judicial warrant or have consent to enter. Health care facilities should identify preferred locations for officers to conduct their business on premises and train staff on the distinction between public and private spaces.

Q: How do we know if a warrant presented by an immigration officer is valid?

A: A valid judicial warrant will be signed by a judge or magistrate, detail the specific premises or person to be searched, and be executed during the time period specified by the warrant. If any of these elements is missing, the warrant may be invalid and unenforceable.

Immigration enforcement officers might also present an administrative warrant, which directs law enforcement to arrest or detain an individual suspected of violating immigration laws. Alternatively, the facility might be presented with a subpoena. These warrants and subpoenas are issued without a judge’s approval and do not grant officers the authority to enter nonpublic spaces of a facility to arrest or detain someone.

Further, FDNS officers may appear and ask to speak with employees and see personnel documents, without any warrant or subpoena. They typically would not seek to speak with patients. The facility must cooperate with their investigation or else the visas of the foreign national workers in question as well as others may be revoked.

Staff should be instructed to consult legal counsel immediately to determine the authority granted by the documentation presented and the appropriate response.

Q: Are we required to disclose a patient’s immigration status to law enforcement?

A: There is no affirmative legal obligation to report a patient’s immigration status. Internal policies should make this clear to facility staff to avoid situations where staff may accidentally consent to questioning about the immigration status of patients or personnel.

Health care facilities should consult their legal counsel on whether applicable state laws may restrict collection and disclosure of information related to an individual’s immigration status. For example, as California’s Attorney General notes in guidance for health care providers in response to changing immigration policies, California law prohibits law enforcement agencies from inquiring about a person’s immigration status. New Jersey lawmakers have proposed similar legislation to limit the circumstances in which government entities and health care facilities may collect details about a person’s immigration status.

Q: Can local law enforcement act on behalf of ICE?

A: Federal law permits ICE officials to delegate limited immigration officer functions to state and local law enforcement. This means that ICE can deputize state and local officers to serve and execute administrative warrants and screen individuals already in custody to determine immigration status. However, individual states may restrict the role of local law enforcement in immigration enforcement activities within their borders. Developing working relationships with the health care facility’s local law enforcement can be helpful to avoid unexpected or hostile visits.

For example, in California, the California Values Act prevents state and local resources from being used for federal immigration enforcement purposes except in limited circumstances. Under the law, local jurisdictions may enact even more stringent policies. Critically, the law states that health facilities should remain “safe and accessible,” thereby limiting the ability of local law enforcement to conduct immigration enforcement activities in those facilities.

Q: What can we do to prepare for an immigration enforcement action?

A: Health care facilities should be prepared to take the following steps:

• Designate both an internal employee and legal counsel to serve as the primary points of contact for facility personnel in the event of onsite immigration enforcement activities, unannounced or otherwise.
• Train the workforce, particularly front office staff like receptionists and security guards, on what to do and say to immigration enforcement officers. These procedures should include verifying the identification of officers, determining whether the officers have the appropriate documentation, and consulting the facility designee.
• Make sure all personnel can distinguish the public and private areas of the facility. This avoids a scenario where an employee inadvertently consents to a search of a restricted area without confirming that the law enforcement officer has the proper document to authorize the search.

Key Takeaways

The recent changes to federal immigration enforcement practices may directly impact health care facilities and the communities they serve. To minimize the potential disruption that may result from an immigration enforcement action on their premises, facilities should work with their legal counsel to proactively develop protocols for interacting with law enforcement and training their staff on those protocols.

The Health Care group at ArentFox Schiff is closely monitoring the impact of changes to immigration enforcement policy on health care providers. In our next blog post, we will discuss the recent DHS directive from a patient privacy perspective.

If you have questions or would like additional resources, please contact one of the authors of this alert or the usual ArentFox Schiff attorney who handles your matters.