Health Care Centers Can Become Safe Spaces for Immigrant Patients
THE TORCH: CONTENTSBy Alvaro M. Huerta, NILC staff attorney
May 25, 2017
Since Donald Trump’s inauguration as president, there has been an unwelcome chill in the air for immigrants and their families. The new administration has promised to deport any removable immigrant, and an increase in federal immigration enforcement has terrified immigrant families across the country. Some immigrants have decided to forego obtaining necessary medical care out of fear that they may be putting themselves or their family members at risk of deportation.
While there have been no verified reports of immigration enforcement at health centers thus far, given the current anti-immigrant climate, health centers must take extra steps to ensure that their patients feel safe and secure when they seek medical care. Health center management and staff should understand their own rights when it comes to law enforcement on the premises, and they should create safe spaces for immigrant patients and their families. NILC has created resources to help health centers do just that, and we provide a few tips here.
It is important to note at the outset that officials at U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP) have issued memorandums containing guidelines that discourage immigration enforcement activity at or near “sensitive locations.” Those sensitive locations include medical treatment and health centers, which, according to ICE and CBP, generally include “hospitals, doctors’ offices, accredited health clinics, and emergent or urgent care facilities,” although this list is not exhaustive.
While the sensitive-locations memorandums do not have the force of law, health care providers and their patients have legal rights found in the U.S. Constitution and other established law.
The Constitution’s Fourth Amendment protects everyone in the country against unreasonable searches and seizures. That means that even if an immigration agent were to appear at a health center and demand to search the facilities or demand that health center staff release patient records, health center staff are not required to assist the agent unless the agent presents a valid judicial warrant or other court order. If the immigration agent insists on proceeding to search without a warrant or starts to question those present, health center staff should clearly express that they do not consent to the search, let everyone who is present know that they have the right to remain silent, and document what the agent does in writing or with photos and video.
Additionally, patients have protections under the Health Insurance Portability and Accountability Act of 1996 (HIPAA). HIPAA generally prohibits the use or disclosure of patient information without the patient’s consent, except when required by law. While such information may be turned over to law enforcement officials for a legitimate law enforcement purpose, the release of that information is generally not required. Health centers hoping to create an air of safety in their facilities should commit to withholding patient information unless presented with a valid search warrant.
In order to best equip their staff to protect patients’ rights and create a safe space, health centers should create a plan. The plan should identify training opportunities for all health center management and staff, and that training should include an overview of the legal protections described above.
Each health center should also designate a staff member as the only person authorized to interact with law enforcement agents and available to review any paperwork—including a search warrant—that an immigration agent might present. The authorized person can review those documents to ensure that they are legitimate and can also refuse to consent to a search if the warrant or other court document is invalid or not presented.
Health centers should also create policies that designate certain spaces as private and closed to the public, to more effectively limit the ability of immigration agents to search the premises and question those present. The authorized person should have the contact information of a lawyer handy and call that lawyer if an immigration agent comes to their health center. Roleplaying these potential scenarios is another way of ensuring that staff members are prepared to respond confidently and effectively should the situation arise.
Last, health centers should also provide educational materials advising patients of their rights. Centers can post notices in their waiting and examination rooms describing the rights of all patients to refuse to answer questions by immigration agents and other law enforcement and to insist that a lawyer be present if they are questioned. They should also share know-your-rights handouts describing those rights in easily understandable terms and in the languages that their patients are most likely to speak.
Health centers are on the front lines of ensuring that immigrant patients and their families feel safe and secure enough to obtain health care services when they need them. In order to do that they must arm themselves and their staff with the knowledge they need to protect their patients’ rights and create a safe and welcoming space for immigrants. The National Immigration Law Center stands ready to help!