This post is well outside our usual beat. But we believe it is consistent with our overall perspective, which is that ALL are welcome. We also ardently oppose Christian Nationalism and government abuse of power, so in that sense, this post is spot on. We also hope to help churches that provide or host medical clinics that serve people of limited means.

To be clear: This is not a political post. We have many GOP friends who do not support current government policies. So, this post only addresses the issues of ICE and its ability to raid hospitals. Nothing else.

Today’s post is not legal advice, as the only attorney on our team is now retired. Nor is this post a substitute for talking with an attorney, especially since state and local laws may also apply.

That said, we’ve heard a lot over the past several days about ICE and the agency’s re-acquired right to raid hospitals. At the same time, we are deeply concerned that many healthcare professionals think that HIPAA protects all patient data. Even more alarming are those who say, “I’ll go to jail before I’ll cooperate.” That’s a valid approach, but as they say in law enforcement, you’re no good to anyone if you’re out of the picture. And if you obstruct ICE, you certainly can wind up in jail.

So, this post tries to help medical professionals and others understand HIPAA and ways to protect themselves AND patient privacy without landing in jail.

Does HIPAA protect all patient data?

HIPAA does not protect all patient data. Instead, it allows but does not require a covered entity (hospital, clinic, doctor’s office) to disclose personal health information (PHI). In the case of law enforcement requests, permissible disclosure is limited to:

• Name and address
• Date and place of birth
• Social security number
• Blood type and Rh factor
• Type of injury
• Date and time of treatment
• Date and time of death

Also, patient directory information, including the patient’s location in the hospital, is presumptively public. More on this below.

There also are a slew of exceptions to the HIPAA rules. Do not discount the possibility that ICE will try to invoke these exceptions in bad faith.

Can ICE wander around my hospital or clinic?

Maybe.

If an area is public and there are no specific restrictions on ICE or law enforcement, ICE can hang out, conduct surveillance, etc. However, agents cannot access private areas without permission or a valid judicial warrant.

What do you mean, judicial warrant?

Many times, ICE will show up with an administrative subpoena or warrant. These request your cooperation, but nothing requires you to respond. That said, if you don’t, ICE may seek a judicial warrant.

A judicial warrant is typically signed by a judge, clerk of court, or federal magistrate. Note that an administrative law judge cannot issue a judicial warrant.

Do I have to comply with a judicial warrant?

Yes. Although it is possible to resist a judicial warrant on various grounds, there is a high likelihood that the court will hold you in contempt, which may result in fines or extended imprisonment.

How can I protect patient data?

1. Acquire as little information as possible. Don’t ask about immigration status or questions from which this might be inferred, like “Where are you from?” Similarly, in some areas, home addresses may suggest that a patient is an immigrant, so be careful.
2. Don’t display information. Many hospitals, in particular, have video screens that display patient names, vitals, etc. If ICE is looking for a specific person, that information may be enough to obtain a judicial warrant. Similarly, if you leave a computer monitor open, ICE agents may discover the information they need, either by snooping or because it’s in plain sight.
3. Ask your hospital administrator to require all law enforcement to check in upon arrival and be escorted while on the premises. This will limit their ability to surveil your facility or wander at random.
4. Consider making your hospital directory opt-in versus opt-out. One requirement for a warrant is that it be limited in scope. So, it is much harder for ICE to get a warrant if they have no idea who is in the hospital. Plus, in this day and age of domestic violence, protective orders, and identity theft, we are not sure a public directory is a great idea to begin with.
5. Keep in mind that ICE may provide inaccurate information. Candidly, there’s little to stop ICE agents from doing so, so use your common sense. Thus, if they tell you that they want to interview patient four on the basis that she may have murdered someone, but patient four has been comatose for a week, it may be they’re pulling a fast one.
6. Hospital administrators and legal get paid big bucks, so let them deal with the sh*tshow. If ICE shows up and it’s not contrary to hospital policy, ask them to stay with you, then call the hospital administrator, legal, and security to deal with the mess.
7. Remember, neither you nor your patients need to answer questions. Additionally, in many jurisdictions, you don’t have to show identification if asked at random by law enforcement.

Even if you’re white and born in the US, you can help yourself and others by admitting to the hospital on a DNA basis.

Do not announce, or DNA status, prevents a hospital from listing you in the patient directory, acknowledging that you are a patient, or providing your location in the hospital. It also means people cannot ask for you at the front desk. Thus, it protects you from potential problems while making it more difficult for ICE to snoop on friends and neighbors who may be at the facility. Remember, warrant requests cannot be “fishing expeditions” but instead have to seek reasonably specific information. Thus, if all patients in a facility are DNA, it becomes much harder for ICE to snoop.

In our experience, ICE agents often are not the sharpest tools in the shed. So we’re concerned about the possibility of mix-ups, even if you’re not otherwise at risk. Thus, if they are looking for “the guy who lives on Main Street,” and you happen to live on Main Street, you could wind up spending the night in ICE detention, even though you were born here and your name is, for example, “Edward Windsor.”

We’ve also heard reports of ICE mistreating LGBTQ+ persons. So, again, medical providers and patients alike should exercise caution.

What about obstructing an ICE raid?

We would be the last to tell you what to do. But in the eyes of the law, there is a huge difference between refusing to cooperate and, say, actively hiding a person of interest. The latter could result in felony criminal charges, and the current administration is already showing a willingness to bend the rules.

So, be careful about actively resisting an ICE raid. Candidly, we’re the kind of knuckleheads who would probably do just that, simply on principle, but if you choose to do so, know that the penalties may be draconian.

Are all communities equally at risk of an ICE raid?

It’s hard to say. In most cases, ICE has very limited ability to hold someone for more than a few hours. Thus, jurisdictions that refuse to cooperate may make it difficult, but not impossible, for ICE to carry out raids. In more friendly jurisdictions, especially those with high percentages of migrants, ICE may find it easier to conduct raids.

Can we set up an ICE community watch?

Yes, many have done so successfully. In areas where such programs have been implemented, anecdotal evidence suggests ICE surveillance quickly ends once community members “leak” this information.

If you do set up such a program, we recommend only doing so with formal training. After all, the last thing you want to do is make things worse or get yourself in trouble.

Teen Vogue has an excellent recent article on such programs.

What if I’m home and ICE shows up?

Given the large number of immigrants among healthcare providers, we must not discount the possibility of ICE showing up at home.

• Children must never answer the door alone, ICE or no ICE.
• If you have a peephole or door cam, do not answer the door if you see ICE or someone you don’t know, as ICE can show up in plain clothes.
• If ICE approaches you in your yard or elsewhere on the property, insist they leave immediately. If agents indicate that they have a warrant, ask to see it. Again, the warrant MUST be signed by a judge or other court official. Otherwise, you can ignore it. Remember, too, that administrative law judges cannot issue a judicial warrant despite their titles.
• If you are arrested, say nothing, answer nothing, and insist on an attorney.

Other tips

• In all cases, sign nothing. Even if ICE insists, don’t.
• If it’s safe to do so and you can do it without interfering with ICE, video record everything and narrate what’s happening. Then, get names, badge numbers, and the names of the relevant agencies. It’s best to record everything to the cloud as stories abound of phones disappearing, getting smashed or confiscated, and other actions to avoid accountability.
• Be careful of rumors. During anxious times, panic and rumors can easily spread.
• If you are in a vehicle with undocumented persons, and you have a valid driver’s license and papers, consider being the driver. ICE, which in some states works in cooperation with local law enforcement, may use a pretextual basis to stop your vehicle.
• If you are in a vehicle and are stopped, do not give consent to search the car.
• Get a trustworthy attorney. Even if everything seems hopeless, a good attorney can often help.
• In this time of “alternative facts” and conspiracy theories, we must share accurate information. Please do not tell other healthcare providers that HIPAA covers all patient information or that there is no law enforcement exception within HIPAA. At the same time, recognize that disclosure is NEVER mandatory except when presented with a judicial warrant, and even then, often limited to basic demographic information.

Finally, please know that Anglican Watch ordinarily retains no information from those who contact us, including log files or emails. Thus, we have nothing that can be subpoenaed or obtained via a warrant.

In case of problems, we are happy to assist as much as possible, but we cannot offer legal advice or provide financial assistance.