Advocate says hospitals should have a plan for when immigration officials come knocking

February 1, 2018


When immigration officials show up at a clinic or a hospital demanding access to a patient, how should administrators respond?


The answer, says attorney Matthew Lopas, is that they should execute a pre-planned response protocol. They should prepare it now by learning about the legal rights of patients and health providers, by establishing written policies, training key people, and even rehearsing what to do in a situation that could have immigration consequences for a patient.

Immigration agents and law enforcement agents "can be intimidating," said Lopas, who is a health policy attorney for the National Immigration Law Center based in Washington, D.C. "They may try to strong-arm you." Having a response plan in place can provide protections for patients and providers.

According to the National Immigration Law Center, the U.S. Immigration and Customs Enforcement, known as ICE, and the U.S. Customs and Border Protection agency have issued memoranda establishing hospitals and other health care facilities as "sensitive locations" where immigration enforcement actions such as arrests, interviews and searches are to be avoided. The memoranda offer guidance only and two enforcement actions involving patients last year that made the national news are indications that immigration enforcement norms are changing.

Lopas said there is a vastly different immigration landscape and atmosphere now from what existed during the Obama administration. This new normal, Lopas said, requires constant vigilance and education on what to expect, what rights patients have and what can be done to combat efforts to undermine basic legal and constitutional safeguards.

"This is really a different world that we're living in," Lopas said. "It's a different life experience that immigrants and their families are facing every day.

"Before, people could understand and make more informed decisions about living their lives. Now, with such fear and uncertainty, it makes it difficult for people to make ordinary decisions to take care of their families."

Families in peril
With immigration officials empowered to set up checkpoints as far as 100 miles from the border, undocumented immigrant families need to be wary. Two recent cases in Texas show how quickly the situation can deteriorate.

In one, a 10-year-old girl with cerebral palsy living with her family in Laredo, Texas, was taken into custody as she passed through an immigration checkpoint in an ambulance on her way to a hospital for emergency gallbladder surgery. A family member who is a U.S. citizen accompanied the girl so her parents could avoid detention. According to published reports, authorities began deportation proceedings against the girl, who has since been reunited with her parents.

In the other case, Border Patrol agents showed up in the waiting room of a Harlingen, Texas, hospital and arrested the parents of a 2-month-old boy — a U.S. citizen — who needed to be transferred to a specialty hospital in Corpus Christi, Texas, for a stomach operation. Agents kept the parents, who had no criminal record, under surveillance and initiated deportation proceedings against the couple while their infant son was hospitalized.

Lopas said such aggressive enforcement action combined with attempts to ban entry into the United States from certain Muslim-majority countries, the potential termination of the Deferred Action for Childhood Arrivals program, and efforts to limit immigrants' access to government benefits — all have created an atmosphere of fear and wariness in the immigrant community. Fear and apprehension can lead to immigrant families' forgoing medical care rather than risk being detained or deported by federal agents, he said.

"If I'm a person at home who hears on the radio or sees in a newspaper that there was a Border Patrol agent in a hospital," he said, "I can see it would make people think, 'I need to avoid going there.'"

Be prepared, and know your rights
To help health systems navigate the threat of immigration enforcement in their facilities, the National Immigration Law Center has prepared a tool kit that hospitals can use to create policies safeguarding the rights of their immigrant patients. It has conducted trainings for San Francisco-based Dignity Health and other hospital systems.

Its website, enumerates the rights of health care facilities and patients.

Key takeaways from that website include:

  • Be ready to consult a lawyer when the need arises. If enforcement officials have a warrant, make sure it fits the circumstances at hand, including specific premises to be searched at a specified time.
  • Designate a point person to handle such circumstances until an attorney can advise about how to proceed. Other employees should be trained to make sure that only the designated representative interacts with law enforcement officials or instructs other staff members to do so.
  • Have a diverse staff, to help the hospital connect with the families it serves, so patients can ask hard questions and feel they are being well taken care of.
  • The Fourth Amendment of the U.S. Constitution limits the power of federal agencies such as Immigration and Customs Enforcement and Customs and Border Protection by ensuring patients have a reasonable expectation of privacy in certain areas. So, hospitals should make clear which areas in their facilities are open to the public and which are considered to be private and thus off-limits to searches in the absence of a warrant or express consent from the duly authorized representative of the facility. Guidelines for what areas are private should be spelled out in writing.
  • Health care facilities are considered to be "sensitive locations" where enforcement should not take place "unless exigent circumstances exist or the officers conducting the actions have prior approval from certain officials within the enforcement agencies," the Law Center says.• Personal information about a patient, including immigration status, is protected by federal law and generally does not have to be turned over absent a patient's consent.
  • Information about the rights that patients have in immigration matters should be posted in prominent places in the hospital, in languages that patients use other than English. "Know your rights" cards should be available in reception areas.
  • During discussions with enforcement officials about what they may and may not do, document their conduct with detailed photographs and notes.
  • Before emergency situations arise, rehearse a variety of scenarios by putting staff members into certain roles and figuring out what they should say and do.

What's next?
Given how much the immigration enforcement landscape has shifted under the Trump administration, Lopas said he can't be sure that safeguards provided under law will be respected, or that dictates from the top won't lead to further changes.

"We are not expecting this administration to be supportive of immigrant access to health programs, so even if there are ways to (prevent) them from sabotaging this immigrant access, we certainly don't see them doing anything to support access."

Because he doesn't expect the situation to get any better, Lopas recommends that hospitals step up their defenses, to make sure that immigrant families who need medical care can get it without government interference and intimidation.

"The focus has to be on how we can prepare local communities — either governments or immigrant rights groups or hospitals or faith communities — to do whatever they can to create policies and create safe communities on their own," Lopas said.

"I don't want to tell people what's best for their families. I want to give folks as much information as I can, so they can live in communities where there is a lot of safe ability to obtain health care. When somebody is sick, folks who have to make decisions should have positive options," Lopas said.



Copyright © 2018 by the Catholic Health Association of the United States
For reprint permission, contact Betty Crosby or call (314) 253-3490.

Copyright © 2018 by the Catholic Health Association of the United States

For reprint permission, contact Betty Crosby or call (314) 253-3490.