By Greg Freeman
Executive Summary
Increased immigration enforcement may lead to Immigration and Customs Enforcement (ICE) agents visiting healthcare facilities. Organizations should develop a response plan.
- Healthcare facilities are no longer off limits for immigration enforcement.
- There should be a designated representative to manage ICE visits.
- It is important to understand the different legal orders that may be involved.
The Trump administration’s dramatic escalation of immigrant enforcement actions has many employers and employees on edge, with healthcare facilities in particular facing potentially delicate situations if Immigration and Customs Enforcement (ICE) agents arrive seeking employees or patients. Risk managers should study the applicable law beforehand and devise a response plan.
Healthcare employers are “absolutely concerned and anxious” about the prospect of immigration enforcement, says Robert Anthony Wells, JD, shareholder with the Baker Donelson law firm in Baltimore. There has been little immigration enforcement in healthcare facilities so far, but employers expect to have ICE agents knocking on the door before long, he says. In preparing for that day, Wells says the most important thing is to have a designated representative or team to manage the situation and handle the interaction with any agents who come in seeking information or seeking to come on to the healthcare premises.
“That should eliminate some of the anxiety and also gives you the ability to appropriately train that person to identify what’s an appropriate warrant, what’s the difference between a warrant and a court order, what rights the agents actually have and don’t have,” Wells says. “Then, you have to make sure that that person is appropriately trained on how to effectively interact with the agents to allow them to fulfill whatever enforcement authority they show up with while also protecting the organization and certainly protecting patients.”
Determining the right representative may vary from one facility to another, Wells says. Risk managers certainly are top candidates, he says.
“It also could be a privacy officer or compliance officer. I think the selection would be different for a 300-bed hospital vs. a federally Qualified Health Center where there could just be a manager who takes this on,” Wells says. “A lot of providers already have some degree of procedure around law enforcement activity, so that can be a starting point.”
One possible problem that could arise involves employees who oppose the increased immigration enforcement so much that they impede the federal agents, either directly or by slow rolling the facility’s cooperation by delaying responses or feigning ignorance of certain information or a person’s whereabouts.
“I think that’s something to be concerned about. I think that to the extent that the law enforcement or government officials are seeking information that they have proper authority for, whether it’s a subpoena or court order, you comply,” Wells says. “That is why having a designated individual or a small group of individuals who know what a real court order or subpoena looks like, so that they respond appropriately, is important.”
Develop a Plan Now
Healthcare leaders should plan specifically how to respond when federal agents arrive for immigration enforcement, says Douglas A. Grimm, JD, partner with the Arentfox Schiff law firm in Washington, DC.
“The officer will show up, and I think the first thing to do is to determine why they’re here and under what authority. There are two primary entrances to a hospital, the front door and the emergency room, and in some hospitals, the reception area or the first point of contact may be a volunteer,” he says. “These people must be included in your education on their obligations, the facility’s obligations, and the facility’s rights under law. You don’t want to defy a properly issued court order, judicial order, or administrative order, but you also need to be aware of your rights in that regard to protect not only your employees’ privacy to the extent they’re afforded it, but also your patients’ privacy.”
The arrival of federal agents can be stressful, particularly for volunteers and others who are not accustomed to dealing with law enforcement or auditors, Grimm notes.
“The goal is not to obstruct a proper investigation, but to make sure that you’re protecting your personnel and the patients to the greatest extent possible. Do the right thing, but also make sure you don’t inadvertently do the wrong thing,” he says. “So, having educated personnel at both doors, the front desk, and the emergency room is important.”
Grimm says healthcare employers should prepare similar to how you would prepare for any audit, whether it is from the Joint Commission, state Department of Health, or Centers for Medicare & Medicaid Services.
“I gave a lot of advice to my clients on developing the response team for what happens when you’re hacked. Here’s the plan, here’s the decision tree, here’s the notification tree, here’s what you say, here’s what you do not say,” Grimm says. “The same holds true in this context. Assume it’s going to happen, and then just enact the plan.”
Hospitals Now Fair Game
Healthcare organizations are under more scrutiny by immigration authorities now, says Maria Kallmeyer, JD, partner with the Quarles law firm in Chicago. Previously, there was an understanding that ICE would not go into certain locations looking for people to arrest for immigration purposes. Those were mainly schools, hospitals, churches, and similar locations where society wants people to feel safe, she explains.
“Now, ICE has said there are no protected locations. They are going to go anywhere they need to go to find undocumented people who should be arrested and deported,” Kallmeyer says. “I don’t think that means ICE has an initiative to raid hospitals and healthcare organizations because a raid is generally reserved for situations where ICE has reason to believe that there is some larger criminal activity going on there that impacts a lot of people,” she says. “What’s happening right now is they’re looking for specific individuals who they have reason to believe should be arrested or deported. There’s some level of anxiety going around because of all the publicity around it, and because I think the administration intended, on some level, to make people nervous, to deter other folks from coming [into the country].”
Healthcare facilities following proper employment practices probably will not have many employees who would be targeted by ICE, says Lawrence W. Vernaglia, JD, partner with the Foley & Lardner law firm in Boston. But contracted workers may be a different story, along with patients and visitors.
“They might not know the status of all those people that they rely on for various activities, patients themselves, and then this collateral risk to patient families and people who accompany patients,” he says. “You might find that ICE is coming after an individual who is undocumented and has a criminal complaint against them or a conviction or something, and in the process of apprehending that individual, they also spot his or her family in the waiting areas or at the bedside. That’s called collateral impact.”
Compliance with certain orders can come down to how the healthcare facility identifies what parts of the facility are public space and what parts are private space, Vernaglia says. If you do not have a policy addressing that, now is the time to write one, he says.
“For example, do you have a policy that lets any member of the public into your ER (emergency room) waiting room? Or is the policy such that only people who have a legitimate medical need to be there, either because they are seeking care or they’re accompanying someone who is?” he says. “Do the Girl Scouts get to sell Girl Scout cookies in there? Does the Salvation Army get to come in and ring the bell? Those are benign examples, but you wouldn’t want to have to be interpreting policies on the fly when law enforcement’s at the door.”
A healthcare employer could face consequences from either cooperating too fully with ICE agents or resisting their lawful actions, explains David S. Schumacher, JD, partner with the Hooper Lundy Bookman law firm in Boston.
“If they allow an agent into private areas of their facility without a proper judicial warrant, they’re putting individuals in their facility and records in their facility at risk. Agents would be able to access the facility in a way that they shouldn’t be allowed to, and potentially lay hands on somebody when that’s not permitted under the law,” Schumacher says. “You don’t want to unduly provoke an agent; you want to be cooperative and obviously you want to comply with all lawful orders and warrants. There’s certainly a risk that if the employer is perceived by the agency to be unduly uncooperative they could be hit with some kind of obstruction of justice charge. It’s a balance between responding to lawful warrants and government process while also protecting their own rights and protecting their employees.”
Sources
- Douglas A. Grimm, JD, Partner, Arentfox Schiff, Washington, DC. Telephone: (202) 857-6370. Email: [email protected].
- Maria Kallmeyer, JD, Partner, Quarles, Chicago. Telephone: (312) 715-5009. Email: [email protected].
- David S. Schumacher, JD, Partner, Hooper Lundy Bookman, Boston. Telephone: (617) 532-2704.
- Lawrence W. Vernaglia, JD, Partner, Foley & Lardner, Boston. Telephone: (617) 342-4079. Email: [email protected].
- Robert Anthony Wells, JD, Shareholder, Baker Donelson, Baltimore. Telephone: (410) 862-1121. Email: [email protected].
Greg Freeman has worked with Relias Media and its predecessor companies since 1989, moving from assistant staff writer to executive editor before becoming a freelance writer. He has been the editor of Healthcare Risk Management since 1992 and provides research and content for other Relias Media products. In addition to his work with Relias Media, Greg provides other freelance writing services and is the author of seven narrative nonfiction books on wartime experiences and other historical events.
The Trump administration’s dramatic escalation of immigrant enforcement actions has many employers and employees on edge, with healthcare facilities in particular facing potentially delicate situations if Immigration and Customs Enforcement agents arrive seeking employees or patients. Risk managers should study the applicable law beforehand and devise a response plan.
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