Know Your Rights & Health Care

Access to health care is a fundamental human right and necessity. However, the threat of immigration enforcement often forces immigrant families into the shadows and prevents them from seeking out life-saving medical services. No one should ever have to choose between their health and the fear they could be putting their families at risk just by going to the doctor’s office.

These tips from the National Immigration Law Center (NILC) can help hospitals, medical centers, community health centers, other health care facilities, and advocates prepare for and respond to enforcement actions by immigration officials while protecting patient safety and confidentiality.

Immigration Enforcement Power is Limited by the Constitution

The power of Immigration and Customs Enforcement (ICE) to enforce immigration law is limited by our constitutional protection against unreasonable search and seizure. Under the Fourth Amendment, the permissibility of a search depends on whether a person has a reasonable expectation of privacy in the area searched. Because of this, patients accessing health care services may be more vulnerable to immigration enforcement actions when they are in areas of a facility that are open to the public than when they are in areas that are considered private.

Health Care Providers are not Obligated to Share Patient Information

Health care providers have no legal obligation to inquire into or report to federal immigration authorities about a patient’s immigration status. The Health Insurance Portability and Accountability Act (HIPAA) privacy law generally prohibits the use or disclosure of personal health information without a patient’s consent, except when required by law. Health care providers may refuse to provide information about patients to law enforcement officials unless there is a judicial warrant.

If ICE Enters a Health Care Facility

Because immigration agents may enter public areas of health care facilities without a warrant, people working in or accessing services may encounter immigration enforcement. Anyone questioned by agents under these circumstances has a right to remain silent.

If ICE Attempts to Enter Private Areas of a Facility

To enter a private area of a health care facility, enforcement officers must have either a warrant or consent from an authorized person. Health care facilities should designate specific staff to act as authorized persons in such situations and train other staff to refer agents to the authorized persons and to avoid any action that could be interpreted as consent.

If ICE Shows a Warrant

If immigration officers ask permission to enter a private area or attempt to do so, the designated person should state explicitly that they do not consent to the officer(s) entering without a warrant. If the officers say that they will get a warrant, contact a lawyer and try to have the lawyer present before the warrant is served or before the search begins. During the search, document the officers’ conduct with detailed notes and photographs.

If immigration authorities or other law enforcement officials present a warrant or other court order, the authorized person—a predesignated health center staff member—should review the warrant to ensure that:

·       it is a valid judicial warrant;

·       it is signed by a judge or magistrate judge;

·       it states the address of the specific premises to be searched;

·       it is being executed during the time period specified on the warrant, if any.

Ultimately, immigration enforcement policies and practices evolve, with dramatic changes sometimes occurring with presidential transitions, but constitutional rights remain unchanged. The best strategy is to arm your staff and your patients with the knowledge they need to protect everyone’s right to obtain health care.

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Please note that this information is general guidance and not legal advice. For legal advice, request a consultation from ICS or speak to an immigration attorney today.