There is a lot of talk lately about the need to follow orders given by a member of law enforcement. I would like to explore that a bit today and remind people of what Immigration and Customs Enforcement (ICE) can and cannot do in a healthcare facility.
Life in the Twin Cities has been a bit shocking for the last few weeks. The U.S. Department of Homeland Security (DHS), under which ICE operates, has been ignoring several rights that I thought were universally accepted and constitutionally protected for almost 250 years. They’ve broken into homes without a judicial warrant.
Lawyers are being refused access to detainees. U.S. citizens have been arrested, flown to Texas, and after their citizenship was confirmed, told “sorry, get yourself back to Minnesota.”
There are also actions which, while not necessarily illegal, are troubling, like ICE personnel being stationed at pharmacies. And since there are several examples of lawful immigrants who have been detained for long periods (I know of a chef with a green card who spent 10 days locked up), legal immigrants are terrified to leave their homes, let alone go to the pharmacy, the grocery store, or work.
So skilled nursing facilities (SNFs) and other healthcare entities that employ immigrants are in a staffing crisis. But I am particularly worried by claims that filming government agents constitutes grounds to arrest or shoot someone. That should stop all of us in our tracks.
I am certain that some folks are annoyed with me right now, thinking this is political, and not relevant to healthcare. I hear many people say “if you aren’t breaking the law, you have nothing to fear. Just do what the agents say.” That thinking scares me, and should petrify you, too. Because health fraud is a felony.
And if you bill for healthcare services, odds are you have screwed up, which means you could be accused of fraud. If you are reading this confident that you will never be accused of a crime, I urge you to reconsider. I assume that if you are audited, you want legal counsel. But if “failing to just do what the government says” is a crime, or a basis to get shot, finding defense counsel will be hard.
I like to think I am gutsy, but mostly because I know the law is on my side. If I am required to just do whatever a government agent says, well, then I’m changing lines of work. And if it is obstruction of justice to challenge a government agent, logically, hiring defense counsel would be obstruction of justice as well.
If you think what the folks filming on the street are doing is different from what I do, I totally agree. They are FAR LESS intrusive to the government than what I do when I defend clients. It’s not close. I am actually trying to stop what they are doing, not merely record it. If they are breaking the law, I am smashing it.
When the U.S. Department of Health and Human Services (HHS) Office of Inspector General (OIG) asks for money, do you have to give it to them, even if they are wrong? Of course not. Can they pepper-spray or beat you or shoot you for your exercising your rights? Not legally, no. I think it is an American duty to stand up for rights. “Just comply” is the very antithesis of American principles.
Having articulated my fear about the state of defendants’ rights in this country, I want to move on to the rights and responsibilities you have if an agent visits a hospital or clinic. In one reported case, ICE personnel spent 24 hours in a patient room, the patient cuffed to the bed. Is that legal? Absent a signed judicial order, I would say absolutely not.
What right does ICE or another government agency have to receive information about patients, or be present when medical care is delivered to people? First, consider what law applies. The Health Insurance Portability and Accountability Act (HIPAA) is often mentioned, but in many states, HIPAA is essentially irrelevant, because it only creates a floor. HIPAA allows disclosures to law enforcement in many scenarios, but when state law is more protective of rights, it preempts HIPAA and controls. If someone is talking about HIPAA, verify that they have considered state law. In many states, law enforcement can get records only when there is mandatory reporting, like for abuse or gunshot or stab wounds.
If an ICE, Border Patrol, or other agent (while this article will refer to “ICE,” the principles apply to all government agents) claims legal authority, you need to ask them for a citation or document. ICE can have one of two types of warrants. A judicial warrant is signed by a federal judge and will have “United States District Court” at the top, and allows ICE to do whatever is on that warrant. Judicial warrants are very powerful, but also VERY rare. I would be shocked if you see one. Administrative warrants, which may say “I-205,” their immigration form number, are signed by someone within DHS, and allow ICE to grab a person in a public area – but that is basically it. They do not give ICE the right to go to a private area in a building, or to do much with the person, except arrest them when they are spotted in public. They certainly don’t give ICE a right to medical information. And they don’t allow ICE agents to enter any place that the public doesn’t enter. Assuming you expect people to check in before going to a clinic room or hospital floor, ICE needs a judicial warrant, from a U.S. district Court, to go there – and allowing them to wander around without a warrant likely breaches patient confidentiality.
If ICE or another police agency brings you a person they believe may have violated the law, but who was injured during an arrest, my advice would be that the agents shouldn’t be involved in the care at all, but it is permissible to notify the agent when the patient is ready for discharge. You hide the individual at your own legal peril. By contrast, if ICE or other officers come by asking about a patient they did not bring to you directly, you should not give out information about the patient, including their readiness for discharge, absent a judicial warrant or court order. ICE is almost never allowed to have medical information about a patient. It is reasonable to expect the officer to step out of the room when the patient is examined. The time this gets grey is if the patient is coming from an ICE detention facility, and the agents are effectively the custodian of the client.
If you see a dispute with any government agent who is demanding access to information or a location, I encourage you to record it on video it. It is ABSOLUTELY legal to record government officials in public places. The administration is trying to claim that filming is obstruction, but common sense and the federal courts know better. Filming doesn’t obstruct anything. I used to recommend getting an American Civil Liberties Union (ACLU) app, but that has been discontinued. I would then send a copy of the video to a few people, ideally including legal counsel, as quickly as possible. If there is patient data on the video, keep that in mind, and only send it to folks with whom you could share medical information.
Recent events have the potential to make me think I am living in a post-legal world, but I also think America is resilient. On Monitor Mondays, I always end with a song. I rarely do so in articles, but for this article, I think a song is fitting. Despite my very deep anxiety about how dark things feel in Minnesota right now, I can’t help but think of Ray Charles’s opening words in America the Beautiful.
Oh, beautiful for heroes proved
In liberating strife
Who more than self, their country loved
And mercy more than life.
Here’s hoping that mercy, and respect for law, will carry the day.
