Foley Attorneys on Hospital Response to ICE Enforcement – 'This is a big topic'
Foley & Lardner LLP partners Lawrence Vernaglia and John Litchfield are featured for their insights on how hospitals can navigate engagements with Immigration and Customs Enforcement (ICE) agents in the Report on Medicare Compliance article, “‘Take it Up With My Manager:’ Consider Privacy, Other Restrictions When Interacting With ICE.”
“This is a big topic,” Vernaglia emphasized, highlighting that guidance issued under the previous administration which restricted ICE and U.S. Customs and Border Patrol enforcement actions in sensitive areas like schools, churches, and health care facilities has been revoked. “Our clients are advising their staff who most likely will interact with ICE agents about their obligations.”
Vernaglia and Litchfield suggested hospitals draft accessible protocol documents for front desk employees who may first encounter ICE agents. Litchfield added that hospitals need to prepare on two fronts: ensuring compliance with federal and state privacy laws, while also shielding themselves from liability if the federal government takes issue with the level of access they allow agents.
Litchfield clarified the kinds of warrants ICE agents may present to hospital staff and the different permissions each grants. Judicial warrants, including search and arrest warrants approved by a court, give agents wider authority. In contrast, administrative warrants issued by ICE or the Department of Homeland Security do not “carry the same force of law,” he explained. While they can allow ICE agents to search people or public areas, they do not bestow access to private spaces, such as hospital rooms.
Vernaglia, describing the privacy considerations for hospitals responding to law enforcement requests, pointed to the HIPAA Privacy Rule, the Confidentiality of Substance Use Disorder Patient Records regulation, and individual state confidentiality laws as relevant factors determining how an entity should respond.
Staffers should “act in good faith in following the protocol” a hospital established if ICE agents appear, Litchfield concluded. “In the best of all possible worlds, ICE shows the front desk a warrant and asks to speak with the individual charged with helping ICE carry out the warrant,” then the front desk notifies that individual, who sends the warrant to legal counsel, “and the process plays out in an orderly fashion from there.”
“But the only way this is possible is for hospitals to have clear protocols and good training for its staff,” he added.