'Protected areas': Navigating ICE interactions in healthcare settings | Viewpoint

After nearly a year of headline-grabbing workplace raids by the federal Immigration and Customs Enforcement (ICE) agency, there are increasing concerns around ICE enforcement in sectors traditionally considered “protected areas,” including many healthcare settings.

This uptick has left healthcare leaders with the difficult task of navigating quality of care, protecting patients, and mitigating business liabilities. In this article, we’ll explore how ICE enforcement has evolved and special considerations for healthcare employers amid an uncertain landscape.

Background: Understanding protected areas

Before the advent of the Department of Homeland Security (DHS) and its subsidiary agencies, including ICE, in 2002, the Immigration and Nationalization Service had internal guidelines for a restrained approach to enforcement activities at schools, places of worship, and religious ceremonies. These guidelines later evolved under DHS to include hospitals.

In 2021, under the Biden Administration, DHS issued a memorandum to expand the scope of protected areas to include healthcare facilities in general as well as areas near protected areas.

However, on January 20, 2025, the Trump Administration rescinded the 2021 memorandum. While there have been lawsuits challenging the validity of this rescission, they have had mixed results that are far from final and no rulings yet apply specifically in the healthcare context.

Considerations for healthcare facilities

Healthcare institutions should assume that ICE will function as though the January 20th memorandum is in effect and may not observe the precautions and restrictions that have historically applied to protected areas.

However, there are still certain limitations to ICE action that health systems should know.

Public-private distinction

First, ICE is subject to the laws distinguishing police power in public and private spaces.

Police typically have the greatest latitude in areas open to the general public, such as waiting rooms, sidewalks, or parking lots. By contrast, in areas with a “reasonable expectation of privacy” – for instance, exam rooms or other spaces for staff only – police must usually obtain a warrant before conducting searches or seizures.

Understanding and applying these principles can result in a more limited reach of ICE. For instance, a medical facility could explore creating or designating very limited open waiting rooms and maximize areas that are only accessible to patients and staff, which enhances privacy.

Maintaining HIPAA

Despite recent ICE actions, healthcare providers are also bound by the Health Insurance Portability and Accountability Act (HIPAA) in any interaction with law enforcement.

HIPAA requires that disclosure of patient information to law enforcement be limited to specific circumstances: the need to identify or locate a suspect, fugitive, material witness or missing person, or to avoid a serious and imminent threat to persons or national security.

Further, while immigration status or evidence of foreign birth are not, by themselves, considered Protected Health Information (PHI) under HIPAA, this information could be prohibited from sharing if included within other protected healthcare documents. Additionally, healthcare providers are not required to inquire into immigration status or report immigration status to federal authorities.

Probable cause

Finally, ICE and other DHS agencies are limited by the U.S. Constitution’s Fourth Amendment prohibition against unreasonable searches and seizures without probable cause.

Probable cause is only satisfied by obtaining a warrant or subpoena from a federal judge.

ICE also conducts investigative and enforcement actions using “administrative” or “immigration court” warrants and subpoenas. However, these are not judicial and therefore do not carry the same authority requiring immediate compliance as judicial warrants and subpoenas.

An administrative or immigration court warrant does not automatically authorize entry into a non-public area or meet HIPAA standards for disclosure.

Overall, the rollback of protected area guidelines seemingly makes healthcare facilities more susceptible to ICE enforcement actions. However, there are legal principles and resources specifically applicable to protected areas that may be utilized to shield them from intrusive ICE action.

Remember, a workforce that is trained to encounter ICE with clear policies and procedures is the best preparation for employers. In addition, ensuring access to legal counsel who can immediately respond to ICE action and provide clear guidance is critical.

Eric Yun and Shloka Joshi are attorneys at Archer & Greiner.