Are health care institutions prepared for immigration enforcement actions?

Host Amber Smith: Upstate Medical University in Syracuse, New York invites you to be "The Informed Patient" with the podcast that features experts from Central New York's only academic medical center. I'm your host, Amber Smith. What are the ethical duties of hospitals and other health care settings with regard to immigration enforcement in those settings? I'll talk about that with a bioethicist who recently published a paper on this subject. Rachel Fabi is an associate professor of bioethics and humanities at Upstate. Welcome back to "The Informed Patient," Dr. Fabi.

Rachel Fabi, PhD: Thanks, Amber. Glad to be here.

Host Amber Smith: Aren't health care institutions off limits to immigration enforcement?

Rachel Fabi, PhD: I think that's a common belief. But it's a little bit more complicated than that. So, immigration enforcement like ICE (U.S. Immigration and Customs Enforcement) or CBP (U.S. Customs and Border Protection), Border Patrol, can't enter private spaces unless they have a valid judicial warrant. And that means a warrant that's been signed by a judge and lists the address of the space that they're trying to enter.

But they can enter public spaces, so that could mean a hospital waiting room. It could mean the parking lot in front of a hospital. Those are public spaces. And so under the Biden administration, it was, the Department of Homeland Security's policy that immigration enforcement at health care institutions, including in public areas like waiting rooms or in front of the institution, should be limited only to cases where there's an imminent threat to public safety. But this changed recently with the Trump Administration.

Host Amber Smith: I see. And does it vary state to state?

Rachel Fabi, PhD: Not really. So we're looking at federal law, right? So that idea of having a valid judicial warrant... If a federal immigration enforcement agent has a warrant that's been signed by a judge and that lists the address of the location they're trying to search, state law can't really prevent them from entering.

What states or localities can do is limit the extent to which their local law enforcement can be sort of used by ICE to enforce immigration law. But if they have a judicial warrant, if there's a belief that a criminal law has been violated, then local and state agencies can get involved there too.

Host Amber Smith: Now, do you believe there are immigrant families who are skipping medical care now because they're afraid of ICE agents being in the waiting room?

Rachel Fabi, PhD: Yeah, there's actually been a lot of reporting around this. For instance, recently NPR (National Public Radio) reported that there's a community health center in Chicago, which serves a large immigrant population, and they've seen 30% of their patients begin to cancel or skip appointments after the new executive order changing this guidance came down from the Trump Administration. And there's also been a lot of reporting that many immigrants are disenrolling themselves and their children from health insurance, and that includes their citizen children. So even the citizen children of immigrants are coming out of CHIP (Children's Health Insurance Program) coming out of Medicaid programs, out of fear that those enrollments could be used against them in the future.

Host Amber Smith: Well, what are the risks for people skipping medical visits?

Rachel Fabi, PhD: There's the obvious risk to their own health, right? If you aren't getting regular well visits, you may be missing cancer screenings or other sort of traditional screenings that you would get at a health care visit.

And then we also have concerns about communicable disease. And we saw this in the early days of the COVID pandemic. There was another anti-immigrant health policy called the Public Charge Rule that had led to a similar chilling effect. People were withdrawing from health care and not going to their appointments. And that led to people not getting care for COVID. And, it led to larger community spread.

So that's also a risk when you have people avoiding medical visits out of fear, that it doesn't just affect the population that are the targets of such a policy, but it also affects the community that they live in.

Host Amber Smith: Your paper with five other colleagues is a bioethics forum essay for The Hastings Center (policy institute.) Can you tell us why you felt it was important to write?

Rachel Fabi, PhD: Yeah, I think this policy that changed is going to have a ripple effect, as I mentioned, not just for immigrants, but also for the entire nation, right? And I think as ethicists, we have guidance that we can offer about health care institutions should respond to these changing policies in ways that uphold their duties as health care institutions. And so the Hastings Center -- which is an independent non-partisan research institute located in the Hudson Valley -- I've worked with them in the past on similar guidance around COVID, where we identified some foundational ethical duties that hospitals and other health care institutions have in the context of a public health emergency like COVID. And we think that those same duties apply here as well.

Host Amber Smith: This is Upstate's "The Informed Patient" podcast. I'm your host, Amber Smith. I'm talking with Rachel Fabe from Upstate's Department of Bioethics and Humanities about a recent paper she co-wrote on an ethical framework for health care institutions responding to immigrant enforcement actions.

So what are the three foundational ethical duties of health care institutions that can be enacted by leaders?

Rachel Fabi, PhD: So the three duties that we identify in the paper ... First is a duty to plan, which is sort of a duty of the institution to manage uncertainty. The second is a duty to safeguard, so a duty to support workers and to support their staff and to support the vulnerable patient populations that they serve.

And then finally we identified a duty of care, which essentially boils down to a duty to ensure that you are upholding the standards of care as health care providers to the largest extent possible.

Host Amber Smith: Do you think hospitals are planning adequately for what to do if ICE agents show up looking for patients or even staff?

Rachel Fabi, PhD: I think a lot of hospitals are thinking about this and looking for guidance. We've received a lot of outreach over this paper that we wrote, and I know that there are a lot of nonprofit organizations, immigrant advocacy organizations that are pushing hospitals to start thinking about this.

So I think the ball is rolling. But I think thatthere's more to be done in this space, to make sure that patients know that they'll be safe.

Host Amber Smith: What are the key features of a duty to plan? And I wonder, is it like planning for a tornado?

Rachel Fabi, PhD: It's a lot like planning for a tornado. That's actually a great analogy.

Basically, one of the key features is making sure that there's a line of responsibility, for how we're going to interact with immigration authorities if they show up at our hospital, right? So there should be a point person for every shift, who, if immigration enforcement shows up, they're the ones who interact. They do the interfacing. And that way we're not leaving it up to individual staff members to figure out how to help or not help or what their obligations are.

There should be a front door policy. So we should have training -- and this is where the tornado analogy comes in -- we should be training our staff on how to respond. So, like we have fire drills, we have tornado drills. It might be helpful to have an immigration enforcement drill so that staff know what the policies and procedures are.

Another feature of the duty to plan gets back to what I was saying about how ICE can't enter private spaces without assigned judicial warrant. So, if a waiting room is a public area, it might be really important for the institution to label other areas as private so that someone can't just keep walking in assuming it's public, that there's sort of a natural checkpoint where, OK, this space has been labeled private. And now, under law, immigration enforcement needs to present that warrant in order to keep going to look for whoever it is they're trying to detain.

Host Amber Smith: I like how you said to have a point person because unless you've seen a warrant or you work in law enforcement, I mean, I wouldn't know what they look like.

Rachel Fabi, PhD: Yeah, absolutely. And then making sure that all of the point people have been trained and that they can recognize the difference between, for instance, a judicial warrant, which is, again, the one signed by a judge and what we call an administrative warrant, which is essentially just a work order that ICE puts out to their agents but isn't signed by a judge -- and those are not enforceable in the same way.

Host Amber Smith: Now, if there's a duty to safeguard, do individual health care workers decide if it's their responsibility to safeguard a particular patient?

Rachel Fabi, PhD: Yeah. And so this sort of follows from the duty to plan. Basically if we put our individual staff, our frontline health care workers, in the position of having to arbitrate every time someone comes in, how do we respond? That's really unfair and ethically inappropriate, right? It should be the institution's role to have this plan in place so that everyone knows what their role is and it doesn't leave it up to individuals to figure out how to respond.

Host Amber Smith: Can you go over the key features of duty to safeguard?

Rachel Fabi, PhD: So one is just making sure that trustworthy information is available to patients, to their family, and to the health care workforce generally. People should know what the plan is, so from that duty to plan, and they should be able to access it and trust that it is accurate.

Another feature might be to partner with a legal partner. So there's such a thing as a medical-legal partnership. There's a national center for medical legal partnerships, which might pair a medical institution, a health care institution, with lawyers or medical social workers who have training on these legal issues and how they might affect patients. And being able to partner with them, again, sort of takes the feeling of responsibility from clinicians to feel like they need to know immigration law. Now instead, we've got actual lawyers who can do that. Also, access to medical interpreters is an important thing here, not just in the context of immigration enforcement, but generally everyone should have access to health care in a language that they understand. And then for the staff, who may be experiencing a lot of distress, if they feel that they can't uphold the standards of care -- and we'll talk about this in a minute with the duty of care -- but if they're experiencing distress from policies that they think are unjust, they should have opportunities to debrief and to discuss what they're experiencing. Because if you're holding that all in, it can really lead to significant distress and eventually burnout.

Host Amber Smith: Well, with regard to duty of care, are we talking about an ethical duty or is there also a legal duty?

Rachel Fabi, PhD: So duty of care sometimes gets sort of spelled out as non-abandonment, right? That we have, as health care workers, an obligation to ensure that patients are receiving the best possible standard of care regardless of who you are. And so I would call it a professional obligation. There are also situations in which it is a legal obligation, particularly in emergency situations. Under the Emergency Medical Treatment and Labor Act, EMTALA, we can't turn people away who are experiencing a medical emergency, and so that's where it becomes a legal obligation as well.

Host Amber Smith: So there could be potential legal consequences for not providing care. Could there be legal consequences for providing care if there's a patient who is wanted by immigration?

Rachel Fabi, PhD: There shouldn't be, right? If someone, particularly in an emergency context, but in general, if someone is in a hospital receiving care, I don't think the clinician is going to get in trouble for providing it, right? The problem is that providers may not know that. They may not know what they can and can't do, and that uncertainty also creates risk for patients.

Host Amber Smith: So what are the key features of a duty to care?

Rachel Fabi, PhD: First, maintaining a welcoming and caring clinical environment that respects all patients. Making sure that the way that we talk about our patients isn't discriminatory. That we are doing our best to make people feel welcome regardless of their immigration status.

But additionally, making sure that there is clarity around standards of care, around emergency care, around non-emergency care, so that clinicians know here are your obligations to your patients and that they shouldn't be compromising those standards, if there's a way to meet them.

Host Amber Smith: What sorts of ethical consultations might come up?

Rachel Fabi, PhD: I serve on the ethics consult service here at SUNY Upstate. Many hospitals have similar services. And the role of an ethics consult service is to help clinicians and patients and their families and social workers and any members of the care team address ethical concerns that might arise in the clinical context.

So if you are in any of those roles -- provider, patient, family -- and you have ethical concerns relating to your care you can reach out to the ethics consult service, and we're able to work with the team, work with the family. We can do mediation to help resolve conflict. If we have concerns about immigrant patients, help the team navigate their ethical, maybe the moral distress that they're feeling, if they feel like they can't meet the standard of care that they feel they should, or to connect them, potentially, with hospital counsel or other legal partners who could help as well.

Host Amber Smith: Do you think that most health care organizations are on track with duty to plan, duty to safeguard and duty to care?

Rachel Fabi, PhD: You know, it's hard to say. I think this is a work in progress for a lot of hospitals because the situation, the policy continues to evolve. And so I think a lot of hospitals are waiting to see whether and how immigration enforcement is taking place in our centers.

But I do think, for speaking to the duty to plan, you can do that before you know whether or not ICE is coming, right? And so I think a lot of hospitals are putting in the effort to make sure that they have a plan in place. But again, that plan is not necessarily going to solve the problem if there's still uncertainty among patients about whether they'll be safe.

Like if we're not communicating our plan to the community that we serve, they might not know that we have this plan in place for if ICE shows up and how we can protect them, if we can protect them. And so I think hospitals are going to need to do a better job of communicating about their dedication to these duties to plan, to safeguard into care with the patient population they serve.

Host Amber Smith: Well, you've given us a lot to think about. I appreciate your time, Dr. Fabi.

Rachel Fabi, PhD: Thank you for the invitation, Amber.

Host Amber Smith: My guest has been Dr. Rachel Fabi, an associate professor of bioethics and humanities at Upstate. "The Informed Patient" is a podcast covering health, science and medicine, brought to you by Upstate Medical University in Syracuse, New York, and produced by Jim Howe with sound engineering by Bill Broeckel and graphic design by Dan Cameron. Find our archive of previous episodes at upstate.edu/informed. If you enjoyed this episode, please invite a friend to listen. You can also rate and review "The Informed Patient" podcast on Spotify, Apple podcasts, YouTube, or wherever you tune in. This is your host, Amber Smith, thanking you for listening.