Immigration Enforcement Directives Create New Hurdles for Hospitals Advancing Standard Patient Care
While hospitals will no longer be formally considered sensitive locations under new immigration directives, health care facilities and providers maintain responsibility to protect access to patient care and confidentiality.
On Tuesday, January 21, 2025, the U.S. Department of Homeland Security ("DHS") announced a directive to roll back long-standing policy that restricted immigration enforcement from "sensitive" locations. The policy, initially issued by the U.S. Immigration and Customs Enforcement ("ICE") agency in a 2011 memorandum, helped mitigate ICE enforcement actions from occurring at or focusing on sensitive locations such as hospitals and other health care facilities, schools, and churches.
While Tuesday's directive rescinds the 2011 policy, such locations are, and always have been, subject to ICE enforcement actions. The 2011 policy afforded such locations special procedural considerations, and heightened the conditions under which ICE enforcement actions could be carried out in these sensitive areas. Those restrictions have now been rescinded. For facilities concerned about operational readiness under the new DHS directive, health care providers may consider education and guidance regarding existing policies and procedures for on-site law enforcement activity, including applicable procedures for ICE warrants or other immigration actions. Additionally, such facilities may want to review and update internal policies regarding law enforcement, as well as visitor policies as to appropriate identification for law enforcement requesting access to sites.
Hospitals and other health facilities continue to be subject to federal and state regulations for the appropriate provision of care for all patients. For instance, the Emergency Medical Treatment and Labor Act, or EMTALA, places obligations on hospitals related to individuals who present at the hospital's emergency department regardless of immigration status. Thus, hospitals remain subject to requirements for maintaining appropriate access to treatment for all individuals who arrive at emergency departments, regardless of factors such as citizenship or legal status.
Further, hospitals and other health facilities may also consider operational crosswalks and training as to existing policies and procedures that help protect their patients and confidential patient information, including documentation related to immigration status. Health care providers are subject to extensive privacy regulations under the federal Health Insurance Portability and Accountability Act, or HIPAA, and in some states, even more restrictive laws and regulations protecting patient confidentiality, such as the California Medical Information Act. As such, health care providers may want to provide reminder education to staff as to continuing protections and obligations, including potential limitations regarding the disclosure of sensitive protected health information even during immigration enforcement activity at their facilities.
Hospitals and health facilities may benefit from reviewing and revising relevant policies to best communicate and implement a proactive operational practice for advancing an effective response strategy to the new directive, if needed. Additionally, health systems, hospitals, and providers may review existing Know Your Rights ("KYR") resource materials for patients, families, caregivers, employees, and personnel; implement KYR trainings for employees and personnel supporting patient education outreach; or establish practices for dissemination of KYR materials.
Hospitals or health facilities with additional questions, or in need of additional support for developing response strategies, or with adopting, reviewing, or revising policies, should seek advice from legal counsel.
