Protecting access to healthcare for immigrants Talking primarily about the community health center context Gabrielle Lessard Lessard@NILC.org

context Longstanding policy of avoidance of health care facilities by immigration enforcement authorities We have not seen any evidence of enforcement activity in health care settings

Protecting access to care At Community health centers Adopt policies and practices that: Maximize Fourth Amendment protection against unreasonable search and seizure Maximize confidentiality of patient information State health information confidentiality laws, ACA confidentiality provisions

Constitutional protection The 4th Amendment provides constitutional protection against unreasonable search and seizure What’s unreasonable? Searches in areas in which one has a reasonable expectation of privacy Generally must have a warrant to search without consent No reasonable expectation of privacy in public space ICE/law enforcement can enter, look at anything ‘in plain view’ Can question persons present they have a right to remain silent Reasonable expectation of privacy is subjective – the individual must have the actual expectation and it must be reasonable by societal standards Can search w/o warrant or consent if they have probable cause that things connected with unlawful activity will be found in a place Plain view includes hearing sounds audible in the public space even if emanating from a non-public place

Maximizing Fourth Amendment protections Establish a written policy designating areas of the clinic as private Ex: waiting room is public, all areas beyond waiting room are private Ex: only patients and people accompanying them are permitted to enter the clinic Establish policies limiting the materials brought into any public areas of the clinic Provide posters, know your rights cards and other educational materials advising patients of their rights in interactions with ICE and law enforcement KYR cards in link at end of preso

Maximizing Fourth Amendment protections 4. Designate one or two specific staff members as responsible for handling interactions with law enforcement. Train them to evaluate the sufficiency of a warrant: Is it signed by a judge or magistrate? Does it state the address of the premises to be searched? Is it being executed during the designated time, if any Train them to observe law enforcement and to object if their actions exceed those authorized by the warrant Train other staff to refer law enforcement to them and to refuse to answer law enforcement questions without their authorization 5. Establish a relationship with an immigration lawyer Immigration lawyer should be able to come to the clinic if there is an ICE/law enforcement action

Protecting patient information HIPAA includes provisions to protect the confidentiality of personal information related to using or paying for health services Protected personal health information (PHI) includes name, address and social security number Covered entities subject to HIPAA’s privacy protections include health care providers and health plans The Affordable Care Act includes provisions protecting the privacy of information provided to healthcare exchanges States may adopt laws that are more protective of privacy California Confidentiality of Medical Information Act (CMIA) HIPAA – health insurance portability and accountability act of 1996

Protecting patient information Personal Health Information may be disclosed without patient consent under certain circumstances, including: Where the disclosure is required by a court order, Where the disclosure is required by law, such as where state law makes the health provider a mandatory reporter of abuse of children or vulnerable adults In some circumstances disclosure is permitted, but not required, including: Audits and investigations conducted for oversight of the health system Law enforcement attempts to locate a suspect or missing person Evidence of crimes committed on the premises California law makes health provider mandatory reporters In CA, reporting is mandatory for health practitioners who provide health services to a person with injuries they know or reasonably suspect are caused by a firearm or assaultive or abusive conduct, defined to include multiple criminal offenses. Must report to local law enforcement; failure to report is a misdemeanor

Protecting patient information Adopt a policy against disclosing personal health information where such disclosures are permitted, but not required Establish a relationship with a lawyer who can evaluate the validity of any order for release of information

Local policies Communities can advocates for systems-level policies and expressions of support: Alameda County, California has made a statement that its hospitals are safe spaces and is working on a policy Los Angeles County’s Director of Health Services has put out a message to patients San Francisco Department of Public Health created a post-election webpage and You’re Safe Here! flyer in multiple languages New York City Health + Hospitals has published a powerful message to immigrant consumers

Resources from NILC Immigration Enforcement Know Your Rights Healthcare