Best Practice Protocols for Health Care Facilities Regarding ICE Investigations and Raids

 1. Introduction Recent policy changes have lifted previous restrictions on immigration enforcement in sensitive locations, including hospitals. The Department of Homeland Security (DHS) has rescinded prior guidelines that limited ICE enforcement actions, now permitting agents to conduct enforcement activities within healthcare settings. These developments create significant challenges for healthcare providers striving to balance patient privacy, legal compliance, and uninterrupted medical care.

States are diverging in their responses to these policy shifts. While states like Texas have implemented mandates requiring hospitals to inquire about patients' immigration status, others, like California, advise providers to avoid such documentation to protect patient privacy and encourage individuals to seek necessary care without fear of enforcement actions. Given this evolving legal landscape, healthcare facilities must establish clear protocols to ensure compliance with HIPAA, CMIA, and other applicable state and federal laws while safeguarding patient rights and access to care.

2. Purpose and Scope These protocols establish best practices for healthcare facilities to protect patient privacy, ensure compliance with legal requirements, and manage interactions with Immigration and Customs Enforcement (ICE) during investigations or raids.

3. Staff Training and Preparedness

• Provide regular training for all staff on patient privacy laws and legal obligations regarding law enforcement access to patient information.

• Designate a legal compliance officer or response team to handle ICE interactions.

• Develop clear internal reporting procedures for ICE encounters.

• Display posters and provide materials advising patients of their rights, including the right to refuse to answer questions from immigration agents and to have a lawyer present during any questioning.

4. Access to the Facility and Patients

• Require ICE agents to present a judicial warrant signed by a judge before allowing entry into non-public areas of the facility.

• Train staff to direct ICE agents to the designated legal compliance officer without providing unauthorized access.

• Ensure that patient treatment is not disrupted by ICE enforcement actions.

5. Protection of Patient Data

• Do not disclose patient records or personal information without a valid judicial warrant or patient consent, in accordance with HIPAA and CMIA.

• If ICE presents an administrative subpoena, staff should inform them that such subpoenas do not authorize immediate access to patient records and must be reviewed by legal counsel.

• Ensure that electronic health record (EHR) systems have appropriate security measures to prevent unauthorized access.

6. Response to ICE Warrants and Subpoenas

• Require immediate legal review of any warrant, subpoena, or request for patient information.

• If a valid judicial warrant is presented, provide only the minimum necessary information as required by law.

• Document all ICE interactions, including the names and badge numbers of agents, copies of any documents provided, and a summary of the encounter.

7. Patient and Family Support

• Inform patients of their rights regarding privacy and access to care, regardless of immigration status.

• Do not inquire about or document immigration status unless required for treatment purposes.

• Provide patients and families with information about local legal aid and advocacy organizations if needed.

8. I-9 Compliance and Audits

• Maintain accurate and up-to-date Form I-9 records for all employees, ensuring compliance with federal employment eligibility verification requirements.

• Conduct regular internal audits of I-9 forms to identify and correct errors before an external audit occurs.

• Train HR and administrative personnel on proper I-9 completion, storage, and retention practices.

• Develop a response plan for ICE I-9 audits, including legal review of any Notices of Inspection (NOI) and coordination with legal counsel.

• Ensure that I-9 documentation is kept separate from employee personnel files to facilitate compliance and audits.

9. Media and Public Relations

• Designate a spokesperson for media inquiries regarding ICE actions.

• Do not disclose patient-specific information in public statements.

• Ensure that all public communications align with legal obligations and institutional policies.

10. Review and Updates

• Conduct annual reviews of protocols to ensure compliance with evolving laws and regulations.

• Update staff training and policies as needed based on legal and policy changes.

11. Legal and Community Resources

• Establish relationships with legal professionals and immigrant rights organizations to provide guidance and support.

• Maintain a list of local resources for patients and staff who may need assistance.

By following these best practice protocols, healthcare facilities can ensure compliance with legal obligations while safeguarding patient privacy and access to care.