By: Robin B. Mark, Esq.
On January 20, 2025, the President signed Executive Order 14148, titled “Initial Rescission of Harmful Executive Orders and Actions.” A significant aspect of this Executive Order is the removal of previous protections against Immigration and Customs Enforcement (ICE) actions around “sensitive locations,” including hospitals, schools and places of worship. In recent months there have been multiple incidents where ICE agents entered a medical facility for the purpose of detaining an individual. It is important for medical professionals to protect patient rights and privacy, document the incident thoroughly, and ensure that no patient information is disclosed without a valid judicial warrant.
Initial Steps in Responding to Law Enforcement:
Stay calm and professional.
Identify a Designated Liaison. Instruct all medical staff to refer any and all law enforcement agents to a designated medical representative, such as an Administrator. The medical staff should not provide any information and direct all questions to the designated liaison.
Request the Warrant. The designated liaison should request a copy of the warrant and review it carefully. It is also advisable to contact legal counsel and provide them with a copy of the warrant.
Examine the Scope of the Warrant. Check to see that the judicial warrant was issued and signed by a Judge. The warrant should include information about the locations that the Judge has authorized the agents to search and there should be a list of items that the Judge has authorized agents to seize. It is appropriate to follow the information outlined in the search warrant and only allow agents to search the areas that have been approved by the Court.
Protect Patient Information: Do not provide any patient information unless it is specifically authorized by the judicial warrant or unless authorized by HIPAA or applicable state laws. It is crucial to protect patient rights and privacy and ensure that no patient information is disclosed without lawful authority.
Prioritize Patient Safety and Care. Make sure that patient care continues without interruption.
Documentation
and Follow up:
Document the incident. Staff should document the encounter, including the agent names and badge numbers, the date and time, contact information and any actions taken by the agents.
Consult with Legal Counsel. If a search warrant was presented, it is best practice to consult with a lawyer and determine the nature of the investigation and the status of the medical facility.
Conduct a post-incident review. Review the incident with Administration and relevant medical staff to determine if there are any changes that should be made to the response protocol.
What if the Agents Do Not Have a Judicial Warrant:
An Administrative ICE Warrant is Not Sufficient. An administrative warrant issued by ICE does not authorize access to private hospital areas or confidential patient information. Compliance with an administrative warrant is voluntary. HIPAA rules governing disclosure of personal health information to law enforcement officials are well established. HIPAA permits disclosure of personal health information to law enforcement in certain circumstances that are set forth in regulations. However, an administrative ICE warrant seeking removal or detention of an individual issued by the Department of Homeland Security is not a judicial warrant and does not authorize ICE agents to enter private areas of health care facilities without consent.
If agents do not have a judicial warrant, and the agents do not fall within the specific HIPAA regulations, do not provide information or allow access to patient care areas and immediately contact security with any concerns.
In general, medical facilities must allow agents in any areas where they would allow general members of the public, such as the lobby, cafeteria, or parking. However, without a judicial warrant, or as specifically authorized by federal regulation, agents should be prohibited from entering private areas that are clearly posted and enforced for patients and families.
Medical staff should refrain from interfering with or attempting to stop or obstruct law enforcement from entering public areas of the medical facility. Interfering with law enforcement can result in federal criminal charges, including assault, obstruction or interfering with law enforcement official duties.
Additionally, it is illegal to intentionally protect a person from detention who is known to be in the United States unlawfully. Obstructing or otherwise interfering with ICE or actively helping a person to evade law enforcement is a federal crime. Do not hide or assist any patients in leaving the premises or actively evading ICE agents. Do not destroy any documents, records or other information about a patient. Medical professionals must balance their obligations to comply with a lawful judicial warrant or applicable federal regulation with their obligations to comply with HIPAA and other privacy laws.
Medical professionals should stay informed and take active steps to protect their patients privacy and medical care. Clearly defining public and private areas within a facility and training medical staff on how to respond to law enforcement will help to ensure compliance with the law and minimize any disruptions to patient care.
Robin Mark is a partner at Burr & Forman LLP. Robin may be reached at (205) 458-5473 or rmark@burr.com.
