Preparing for ICE Enforcement: Key Considerations for In-House Counsel

President Trump has been busy during his first week in office, signing dozens of executive orders addressing topics ranging from immigration to climate change. In addition to the executive orders, President Trump’s administration has also issued a flurry of memorandums, statements, and proclamations, each of varying consequence, directing federal agencies on how his administration will handle key areas of governance. One memorandum, in particular, has been grabbing the attention of hospitals, health care providers, and educators alike.

What has changed?

On January 21, 2025, Acting Secretary of the Department of Homeland Security, Benjamine Huffman, issued a statement containing two directives for Immigration and Customs Enforcement (ICE) and the U.S. Customs and Border Protection (CBP).[1] One of those directives rescinded the “Biden Administration’s guidelines for Immigration and Customs Enforcement (ICE) and Customs and Border Protection enforcement actions that thwart law enforcement in or near so-called ‘sensitive’ areas.”[2] Under the prior administration’s guidance, ICE would not conduct enforcement actions in or near “sensitive areas,” including hospitals and other medical or mental health facilities, unless there were exigent circumstances. As a result of Acting Secretary Huffman’s directive, hospitals, physicians’ offices, clinics, and other medical or mental health care providers may find themselves dealing with ICE, CBP, or other federal law enforcement officials at their facilities, requesting access to patients, patient family members, employees, or records, which may include protected health information (PHI). Given the increase in reported ICE and CBP raids over the past week, it may now be a question of when ICE shows up rather than if.

It is worth noting that President Biden’s guidelines for ICE and CBP originally date back to October 24, 2011 and a prior memorandum issued by ICE under then-President Obama.[3] The 2011 memo and ICE guidance were largely disregarded during President Trump’s first term, but were then officially reinstated and resumed during President Biden’s.[4] This time, however, ICE has officially rescinded those memorandums published in 2011 and 2021 under Presidents Obama and Biden and has already begun conducting extensive immigration enforcement actions. It is worth noting that this most recent directive can best be viewed as a return to President Trump’s prior administration, with the exception that it is now clear immigration enforcement actions will be a priority in his current administration. The purpose of this article is to help provide a framework for AHLA’s in-house members on how to respond to on-campus interactions with ICE and other federal law enforcement officers before they show up.

How do we prepare to mitigate that risk?

While every health care provider wants and intends to comply with the rule of law, there are a number of factors that must be balanced and considered in these situations that are not present in other settings. Medical and mental health care providers have to balance their obligation to comply with a law enforcement official’s request with the patient’s rights to privacy under federal and state law, including the Health Insurance and Portability Act of 1996 (HIPAA), 42 C.F.R. Part 2 (Part 2), and the ethical and moral obligations of health care providers (some of which may also be legally enforceable). Under certain circumstances, providers are prohibited from responding to law enforcement requests because of these privacy laws. In other circumstances, providers are required to respond. And in yet other circumstances, providers may be authorized to provide the requested access or information but are not required. Effectively guiding your organization will require knowing and understanding of your rights and obligations in each of these scenarios and implementing an effective plan to respond accordingly. Below are some considerations for in-house counsel to help prepare their organization.

Review current policies for responding to subpoenas, law enforcement’s presence on campus, and employee crisis communications.

Consider reviewing your organization’s policies to ensure they are current with best practices and address all relevant considerations. ICE and CBP are federal law enforcement agencies and generally have the same policing powers as other federal agencies. ICE may access public areas of your facility, but they may not access non-public areas without special authorization. ICE has the authority to obtain subpoenas and warrants, as well as the authority to issue administrative subpoenas and warrants. Generally, providers will only be required to comply with judicial (i.e., signed by a judge) orders due to privacy laws. Administrative subpoenas and warrants generally only authorize health care providers to provide the requested access or records under applicable privacy laws but may not require providers to do so. Additionally, there are other limited circumstances that would allow an ICE agent to access non-public spaces without a warrant, including probable cause or observing people or objects in “plain view” that leads to probable cause. Once you understand each of these scenarios, you and your organization can determine how it will respond (ahead of time) in scenarios where disclosure or providing access is not strictly required. Consider collaborating with outside counsel to develop the appropriate tools (or verify current tools) to allow you to quickly assess your obligations.

Given the hot-button issue of immigration, it may be worthwhile to review and/or test your organization’s policies on crisis communication. Regardless of what policies are implemented or how effective your organization is at executing those procedures, an ICE raid at a hospital or clinic may garner local or national media attention and/or the interest of politically oriented groups on both sides of the aisle. It is easier to plan a response and to ensure all key stakeholders are engaged and prepared for that eventuality before it happens than it is to do it in the moment.

Review current procedures for responding to on-campus law enforcement to ensure they are current with best practices.

Consider reviewing current procedures to address the presence of law enforcement on your organization’s campus when they are demanding access to non-public facilities and/or patients, patients’ family members, or employees. You may want to consider assigning a liaison to be the primary point of contact for ICE or other law enforcement officials. Consider who in your organization will be notified, who will be responsible for any decision making, and how ICE or other law enforcement agents will be guided through your facilities. Consider establishing a location near your facility’s entrance that can be used as an initial consultation room with ICE agents and consider the impact the presence of law enforcement might have in clinical care areas. You may also consider revisiting current relationships with local law enforcement.

Understand your state-level and other obligations as an organization and/or health care provider regarding patient privacy, PHI, and undocumented immigrants.

Under federal law, there is no obligation to determine if an individual is an undocumented immigrant, and there is no obligation to report an undocumented immigrant. Reporting a patient (and thereby disclosing PHI) to ICE as a suspected undocumented immigrant may, itself, violate HIPAA, Part 2, or other privacy obligations. State laws, however, may vary or further restrict access, use, or disclosure requirements of PHI and/or other patient information. State law may also impose separate obligations related to reporting or dealing with undocumented immigrants.

Develop and plan your responses.

Once you and your organization understand your obligations and rights, it is time to start developing and implementing a planned response. Consider giving heightened attention to the scenarios where your organization is not required, but may be authorized, to comply with an ICE subpoena or administrative subpoena/warrant. These decisions will likely involve sensitive discussions among leadership and may result in the strongly held beliefs of key stakeholders and/or your organization’s values clashing. Once decided upon, thoroughly plan the response.

Educate, train, and communicate with key employees about the policies and procedures and their employment obligations.

Once a plan is in place, it needs to be communicated to all employees. Consider providing special attention or education to employees in key locations—security personnel, emergency departments, receptionists, any individual or executive “on call,” and others as appropriate. Consider broader employee communications to address the organization’s anticipated response, employee obligations to protect patient information, and to provide key information (e.g., the liaison’s contact information and/or policy references). All employees should understand that they are not authorized to speak on behalf of the organization, release any documentation or information on behalf of the organization, or to permit ICE to access any non-public space without first following the established policies and procedures. Additionally, consider reaffirming your organization’s policies pertaining to nondiscrimination, because inadvertently violating those could expose your organization to risk as well.

Other Considerations.

Keep in mind that ICE conducts other enforcement actions (e.g., Form I-9 Audits) as well and that contact from ICE may not necessarily be strictly limited to the preparations your organization makes relating to the above discussion. Additionally, in no event should you or any of your organization’s employees physically restrict or interfere with ICE’s (or any other federal agency’s) actions—even if you object to them in the moment. Instead, document and record your objections, their justifications provided in the moment, and all other relevant information. Further, it is worth noting that it is illegal to intentionally protect an undocumented immigrant from detention and organizations should keep in the forefront of their mind that any objection to ICE’s requests or demands is only to protect the organization from unreasonable searches and seizures as well as to protect the confidentiality of its patients and their care.

Copyright 2025, American Health Law Association, Washington, DC. Reprint permission granted.