Recommended Citation: The Social Disposition – Balancing Medicine and the Law: Immigration Officers in the Emergency Department. 2024;Available from: https://cookcountyem.com/blog/2024/3/8/the-social-disposition-balancing-medicine-and-the-law-immigration-officers-in-the-emergency-department
The State of Affairs:
In 2022, we welcomed a million migrants to the United States, and this number is climbing (1). Many migrants, especially undocumented persons, utilize the emergency department as their primary care home due to inequities in health care access affecting this group. In order to deliver holistic and equitable care and build trust with your patients, it is important to understand both the rights of our patients and our immigration enforcement officers in the acute care setting. Below we will describe just this and provide tips for how you can make your Emergency Department (ED) a safe place for everyone to receive health care within their rights.
Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) Cannot Enter Clinical Areas Without a Warrant:
ICE and CBP officers are limited by the Fourth Amendment, which guarantees protection against unreasonable search and seizure in places where a person may reasonably expect privacy. ICE and CBP have issued a memorandum regarding hospitals and other healthcare facilities as “sensitive locations,” i.e., where a person would expect privacy (2). However, this does not apply to public areas at a healthcare facility. For example, an ICE officer may enter your waiting room but not your clinical work area.
This changes if:
The officer has a warrant or if exigent circumstances exist, such as the destruction of evidence, preventing the escape of a fleeing felon, or preventing harm to a person.
If they have “probable cause,” defined as a “ reasonable person’s conclusion that people or things connected with unlawful activity will likely be found in a particular place.”
Further, officers may visually investigate anything in a public area that is deemed in “plain view.” This includes speech they may hear from sensitive areas. However, they may not physically touch or move an object.
ED Staff and Patients Have Right to Remain Silent:
ED Staff have no legal obligation to ask about or report on a patient’s immigration status (2). In fact, we are almost completely protected from doing this by the Health Insurance Portability and Accountability Act (HIPAA), which prohibits using or disclosing patient information without the patient’s consent. Even under other “exceptions,” such as when law enforcement officials are demanding information for law enforcement purposes, personal health information is not required to be shared unless a valid warrant is presented. This is supported by ACEP policy, as well (3).
While ICE and CBP officers may question any person present in a public area of a “sensitive location,” all persons have the right to remain silent.
In a situation where someone does report patient information without justification, HIPAA breach notification rules still apply. The patient must be informed, and this patient can file for damages for violation of privacy.
Always Check the Warrant:
As noted, the only exception to the above rules is if an officer presents a warrant or other court order for a specifically identified individual. The warrant must be presented to a designated healthcare worker (2). Per the National Immigrant Law Center, the worker must confirm the following:
Check that it is valid
Signed by a judge or magistrate judge
Explicitly identifies the specific premises to be searched
Executed during the time period specified on the warrant, if any
It has a scope that is explicitly stated
This last point is especially important, for if a warrant allows inspection of the “emergency room,” this would not necessarily include exam rooms.
What You Can Do in Your ED:
Write a policy designating private areas
Create and distribute educational materials such as “know your rights cards”
Designate an authorized staffer who solely interacts with law enforcement officers
Do not consent; always document with notes and photographs
Establish a relationship with a lawyer
Establish a medical-legal partnership
Authored by Adam Roussas, MD and Rashid Kysia, MD
References:
Grid View: Table B05012 - Census Reporter. Accessed June 5, 2023. https://censusreporter.org/data/table/?table=B05012&geo_ids=040%7C01000US
Health Care Providers and Immigration Enforcement: Know Your and Your Patients’ Rights - National Immigration Law Center. National Immigration Law Center. Published April 2017. Accessed 25 Nov. 2023. https://www.nilc.org/issues/immigration-enforcement/healthcare-provider-and-patients-rights-imm-enf/
American College of Emergency Physicians. Delivery of Care to Undocumented Persons. January 1995. Updated June 2018. Accessed 25 Nov. 2023. https://www.acep.org/patient-care/policy-statements/delivery-of-care-to-undocumented-persons/