New Administration Outlook: Guidelines for Healthcare Providers Responding to Immigration Enforcement Actions

Hospitals and clinics must be vigilant in maintaining patient confidentiality and care standards when encountering ICE or other Homeland Security agents

Executive orders and changes to enforcement directives permitting Immigration and Customs Enforcement (ICE) and agents from other divisions of the Department of Homeland Security to enter sensitive locations, such as hospitals and clinics, have raised concerns among healthcare providers about how to balance compliance with the recent directives with existing health laws and patient care obligations. Other federal agencies also have been enlisted for immigration enforcement actions, including the Federal Bureau of Investigation (FBI); Drug Enforcement Administration (DEA); Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF); and U.S. Marshals Service (USMS) (collectively, federal agents).

A recent directive from the Department of Homeland Security, issued on January 21, 2025, allows law enforcement to pursue individuals who lack clear legal status in or near sensitive areas, reversing previous restrictions. The previous restrictions were initially issued in a 2011 ICE memorandum, which granted certain locations special procedural protections, imposing stricter conditions for ICE and Homeland Security Investigations (HSI) enforcement actions in these areas. Hospitals were among the enumerated list of "sensitive locations." The recent directive rolls back these restrictions.

This creates a number of challenges for healthcare providers. The presence of ICE or other federal agents in healthcare settings may deter undocumented individuals, as well as their family and friends, from seeking necessary medical care due to fear of being apprehended, separated from their families, and deported. This could lead to a decline in patient trust and a potential public health risk if individuals avoid treatment. New enforcement initiatives could strain relationships between healthcare providers and the communities they serve, particularly in areas with large immigrant populations.

In addition, hospitals and clinics could face operational disruptions as they navigate the legal and ethical complexities of complying with valid legal process while maintaining patient confidentiality and care standards. Staff may require additional training to handle interactions with ICE or other federal agents and to understand how to read and comply with warrants.

Nuts and Bolts of ICE's Limitations in Healthcare Settings

Under the Fourth Amendment to the U.S. Constitution, ICE and Homeland Security agents generally cannot enter nonpublic spaces (including, but not limited to, treatment rooms) of a clinic, hospital, or any other healthcare facility without a valid search warrant issued by a judge based on probable cause to search for specific evidence or people. All nonpublic areas within healthcare facilities are considered nonpublic spaces and are generally protected under this amendment.

If law enforcement agents, including ICE agents, are seeking to execute an arrest warrant for an immigration crime (as opposed to a warrant for an administrative immigration violation), some of the exceptions to the warrant requirement may come into play. Law enforcement can seize evidence of a crime that is in plain view and located in an area to which they have a lawful right of access. Otherwise law enforcement, including ICE agents, need a warrant. An immigration "raid" can include agents from a number of different enforcement agencies with various powers. Because of the complexity of assessing warrants and the type of enforcement agents involved, we strongly recommend that health facilities utilize legal counsel to help document interactions with a law enforcement agent who may present at their facilities, rather than challenging or defying them. With legal counsel's support, staff and clinicians at healthcare entities should be focused on asking to see a warrant and complying with the warrant as far as required by its terms. For instance, if a warrant does not specify access to a private area, staff should decline to give the agents access to such area. Healthcare workers are not obligated to share any information with ICE or Homeland Security about themselves, patients, or co-workers unless a judicial warrant specifically requires it. This protection ensures that patient confidentiality and privacy are maintained, aligning with the principles of HIPAA.

Given the change in Homeland Security directives, it is important for clinicians and staff to be trained in understanding warrants. They should carefully examine who or what is identified and specified by the warrant. Furthermore, clinicians and staff should be trained to understand that information in the form of verbal statements only should be provided to enforcement agents in line with hospital policy. Testimony or statements cannot be compelled by agents on site. To compel testimony, agents need a grand jury subpoena and the witness has to be brought before a grand jury; none of this can be done in the field.[1]

HIPAA Obligations in the Face of ICE Directives

The Department of Health and Human Services (HHS) has not provided guidance, and the existing regulations are unclear about which law enforcement officials may enter treatment areas. HIPAA regulations limit the extent to which a healthcare provider may disclose a patient's health information to law enforcement. However, the regulations do not address whether a healthcare provider may permit law enforcement officials to enter treatment areas or must prevent them from doing so.

The most analogous guidance on allowing third parties' entry into a healthcare facility pertains to the media. HHS guidance indicates that a healthcare provider is not required to prevent members of the media from entering areas that are otherwise generally accessible to the public, which may include public waiting areas or areas where the public enters or exits a facility. This arguably means that the HIPAA Privacy Rule likewise does not require a healthcare provider to prevent ICE from entering public areas. In contrast, the guidance indicates that healthcare providers cannot invite or allow media personnel, including film crews, into treatment or other areas of their facilities where patients' Protected Health Information (PHI) will be accessible in written, electronic, oral, or other visual or audio form, or otherwise make PHI accessible to the media, without prior written authorization from each individual who is or will be in the area or whose PHI otherwise will be accessible to the media. This could arguably be interpreted to mean that the Privacy Rule likewise does not permit a healthcare provider to allow ICE to enter treatment areas where patients are receiving treatment unless all impacted patients sign HIPAA authorizations allowing such access or a special exception for law enforcement applies.

The Privacy Rule permits disclosures to law enforcement (which would seemingly encompass allowing ICE in a treatment area) under certain circumstances. These include when the disclosure to law enforcement is required by law, such as a court order, court-ordered warrant, a subpoena or summons issued by a judicial officer, or a grand jury subpoena. Additionally, disclosure to law enforcement is permitted in response to a law enforcement official's administrative request for which response: (1) is required by law, including an administrative subpoena or summons, a civil or an authorized investigative demand, or similar process authorized under law, provided that the official provides a written statement certifying that the information sought is relevant and material to a legitimate law enforcement inquiry, (2) the request is specific and limited in scope to the extent reasonably practicable in light of the purpose for which the information is sought, (3) and de-identified information could not reasonably be used. There are other permissible disclosures to law enforcement that are unlikely to apply in the context of ICE seeking to enter a treatment area, such as a disclosure at law enforcement's request to identify a suspect or fugitive; in that case, only certain identifying information may be provided. By allowing ICE into a treatment area, the healthcare provider is not limiting the disclosure of PHI as required. Of note, while HIPAA permits disclosures to law enforcement in certain circumstances, in no case does HIPAA require disclosure to or providing access to ICE or other Homeland Security divisions, although other laws may require such disclosures.

While healthcare providers have a reasonable basis under HIPAA to prevent ICE and other federal agents from entering nonpublic areas absent a court order, court-ordered warrant, or an administrative request for which response is required by law, there is significant risk that ICE will disagree and could threaten the provider with impeding an investigation, obstruction of justice, or a similar charge.

In addition, a number of states have laws protecting patient confidentiality so healthcare providers must also examine additional requirements from these laws and evaluate how they may be implicated.

Interplay With EMTALA

Another critical issue for hospitals to consider is how the directives interact with any applicable Emergency Medical Treatment and Labor Act (EMTALA) obligation. EMTALA requires hospitals with emergency departments to provide an appropriate medical screening examination and necessary stabilizing treatment to any patient who comes to the emergency department, regardless of the patient's Medicare status or ability to pay. Regardless of the directives, EMTALA remains a federal mandate, and hospitals must ensure that their ability to provide appropriate medical screening examinations and necessary stabilizing treatment is not compromised by the presence of law enforcement.

Medicare Conditions of Participation

Although the Medicare Conditions of Participation (CoPs) do not explicitly require hospitals to treat patients regardless of immigration status, they emphasize non-discrimination, which indirectly supports the treatment of all patients, including those who may lack documentation. Many state Medicaid programs have similar non-discrimination requirements and may more affirmatively require treatment regardless of a patient's immigration status.

Practical Next Steps

We recommend healthcare providers consider the following:

1. Healthcare providers, with legal counsel, should review their existing relevant policies and procedures, including, but not limited to, disclosure of healthcare information to law enforcement, the type of legal process required for access to information or facilities by law enforcement, and EMTALA to ensure they align with both Executive Orders, Administration directives, and existing healthcare requirements and make any revisions or updates necessary or appropriate.
2. If healthcare providers do not have a policy related to responding to ICE's or other federal agents' physical presence at a facility, consider developing such a policy.'
3. Training to educate and remind staff and clinicians about the following if ICE or any other federal agent comes to the facility:
   1. Continuing patient privacy obligations under HIPAA, relevant state privacy laws, and EMTALA;
   2. Healthcare providers are not obligated to share patient records regarding legal status absent a search warrant issued by a judge or a grand jury subpoena and cannot be required to provide statements or testimony absent a grand jury subpoena (and then only to the grand jury);
   3. Healthcare providers generally should avoid asking patients about immigration status;[2]
   4. ICE and other federal agents generally cannot enter nonpublic spaces of a clinic or hospital or other healthcare facility (including treatment areas) without a valid search warrant issued by a judge.
   5. Healthcare workers are not obligated to answer questions from ICE agents or other federal agents about themselves, patients, or co-workers. Healthcare workers are not required to provide records or other evidence absent a judicially approved search warrant or grand jury subpoena. Grand jury subpoenas ordinarily do not require immediate compliance and should be reviewed by the employer's legal department before providing any records or testimony.
   6. Healthcare providers and staff should be trained to understand the different types of warrants that may be presented by law enforcement, the different legal weight they have, to examine who or what is identified and specified on the warrant, and not to provide records or evidence beyond what is required by the warrant.

We expect healthcare providers to face challenges balancing patient care, patient privacy, and existing healthcare requirements with these new directives. Our team includes immigration, law enforcement, and healthcare operations experts who can assist you with understanding these changes and implementing effective strategies to ensure compliance. Please contact any of the authors of this article for answers to questions or assistance with these issues.

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