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June 01, 2019 Healthcare

Healthcare Crisis at the Border: Issues Faced by Hospitals Treating Immigrants, Migrants, and Refugees

Lesley Anne M. Durant, JD, CHC, CHPC, DHR Health, Edinburg, TX

As the issue of immigration at the southern border of the United States gains more attention, an often-overlooked aspect of the situation is the challenges faced by healthcare facilities who are tasked with treating the newly arrived immigrants.  These facilities must navigate a myriad of overlapping regulations from obligations to treat, requirements to provide effective communication, restrictions on the release of information to law enforcement, certain diagnoses particularly affecting migrants and refugees, and issues regarding the transfer of undocumented individuals.   Hospitals on the border need to be prepared to meet these challenges. 

As the issue of immigration at the southern border of the United States gains more attention, an often-overlooked aspect of the situation is the challenges faced by healthcare facilities who are tasked with treating the newly arrived immigrants.

The Emergency Medical Treatment and Active Labor Act

Hospitals need to understand their obligations under the Emergency Medical Treatment and Active Labor Act (EMTALA) regarding undocumented patients.  EMTALA requires hospitals to “provide for an appropriate medical screening examination within the capability of the hospital emergency department” to “any individual” who “comes to the emergency department” and requests examination or treatment.[1]  In  EMTALA, obligations are tied to receiving federal tax dollars in the form of Medicare payments.  Therefore, any hospital that wishes to participate as a Medicare provider must comply with EMTALA’s requirements.  However, it is important to understand that EMTALA’s protections extend beyond Medicare beneficiaries and apply to any and all persons who “come to” the emergency department, including minors and indigent, uninsured, intoxicated, psychiatric or undocumented patients.  The State Operations Manual, which is a guidance document used by the Centers for Medicare & Medicaid Services (CMS) state survey agencies to administer CMS programs, states:

Medicare participating hospitals that provide emergency services must provide a medical screening examination to any individual regardless of diagnosis (e.g. labor, AIDS), financial status (e.g. uninsured, Medicaid), race and color, national origin (e.g. Hispanic or Native American surnames), and/or disability, etc.[2] 

Therefore, hospitals on the border must be aware of their obligations to treat undocumented patients who may arrive at their emergency department.  Likewise, under EMTALA hospitals that have specialized capabilities must also accept transfers of undocumented patients from other facilities that do not have the capability to treat them.  Hospitals that treat immigrant patients need to examine their policies and procedures to make sure they are not placing burdens on the ability of those patients to seek care.  Immigrants are not more likely to seek care in the emergency department, compared to other populations; however, they are less likely to seek preventive and primary care, largely due to lack of resources, language barriers, or fear of revealing immigration status.[3] This can result in emergency departments on the border acting as the sole source of healthcare for many undocumented patients, and requires the facilities to have appropriate referral networks for these type of patients.  Hospitals should seek strong collaborations with community resources to provide appropriate follow-up care.

Effective Communication

Healthcare providers have been prohibited from discriminating against limited English proficient (LEP) patients[4] since the passage of Title VI of the Civil Rights Act of 1964.  Section 1557 of the Patient Protection and Affordable Care Act, which went into effect in 2016, mandated very specific requirements on hospitals to provide meaningful access to each LEP individual who is eligible to be served or likely to be encountered within the provider’s health programs and activities.[5]   Section 1557 places restrictions on the qualifications and type of individuals who can act as interpreters and translators, and includes specific notice requirements.[6]  The final rule implementing Section 1557 contains additional standards that are flexible and context-specific, taking into account factors such as the nature and importance of the health program and the communication at issue, as well as other considerations, including whether an entity has developed and implemented an effective language access plan.[7]  Hospitals treating immigrant patients should be aware of these requirements and work to develop a plan that is specific to the needs of the populations they encounter.

Privacy of Health Information

Another challenge faced by hospitals that treat undocumented patients is determining what types of disclosures are permissible to law enforcement, such as Border Patrol and Immigration Customs and Enforcement (ICE) officers and agents.  The Health Insurance Portability and Accountability Act (HIPAA) permits disclosures to law enforcement, without the authorization of the patient, in certain circumstances.  Hospitals at the border will most commonly be faced with requests from law enforcement for patients’ protected health information (PHI) in order to identify or locate a suspect, fugitive, material witness, or missing person.  While these disclosures are permissible under HIPAA, hospitals should be aware of the specific restrictions related to the type of information that can be disclosed under this exception.[8]  For instance, a request from law enforcement seeking the date and time of discharge of a suspect should be referred to legal counsel for an interpretation as to whether that meets the exception under the “date and time of treatment” disclosure.  Hospitals should also decide on a strategy or policy regarding their disclosures to law enforcement under this exception.  As with most HIPAA exceptions, the disclosures under this category are considered “permissible.”  Permissible disclosures are allowable under the statute, but not required, leaving the decision up to the hospital to determine how much or how little it wishes to disclose.  Having a proactive strategy that protects the privacy of marginalized patients, while also demonstrating cooperation with law enforcement, will help reduce legal liability as well as negative publicity.   

For example, in 2017 Texas-based Memorial Hermann Health System agreed to pay $2.4 million as part of a resolution  agreement with the U.S. Department of Health and Human Services (HHS) related to the improper disclosure of an undocumented patient’s PHI.  Initially, Memorial Herman was accused by community rights groups of inappropriately disclosing the patient’s information to law enforcement in violation of HIPAA.  In order to assuage the protesters, Memorial Hermann released the patient’s name, without her consent, in a news release defending its actions.  While HHS determined that the initial disclosure to law enforcement was appropriate, the subsequent disclosure in the news release was not, resulting in the resolution agreement and corrective action plan.[9]

Disclosures under HIPAA can also be challenging when hospitals are treating a patient who may already be detained and in need of care.  Border Patrol and ICE may bring undocumented individuals who are already in the custody of the agency to the hospital.  Once a patient is considered in lawful custody of law enforcement or a correctional institution, a hospital may disclose PHI if the official or institution represents that the PHI is needed to provide healthcare to the individual; needed for the health and safety of the individual, other inmates, officers or employees of or others at a correctional institution or responsible for the transporting or transferring of inmates; or needed for the administration and maintenance of the safety, security, and good order of the correctional facility, including law enforcement of the premises of the facility.[10]  While this exception may seem straightforward, the recent increase in the detention of unaccompanied minor children or children who have been separated from their parents at the southern border creates unique challenges for healthcare entities who often must navigate competing statutes between state laws regarding the disclosure of a minor child’s information and the federal HIPAA.  For example, under HIPAA minors may be treated as “individuals” under certain circumstances, including when the minor has the right to consent to treatment or when the minor obtains care without parental consent and the minor, a court, or someone else has consented.[11]  In Texas, for instance, minors may consent to treatment when they are consenting for counseling for suicide prevention, sexual, physical or emotional abuse, or treatment related to pregnancy (other than abortion).[12]  However, under HIPAA it is also permissible to disclose information to correctional institutions, as noted above.  Therefore, hospitals must carefully analyze the statutes particular to their situation, especially when minor detainees are seeking specially protected treatment, such as mental health services or sexual assault services.

Diagnoses Particularly Affecting Migrants and Refugees

Many immigrants entering the United States from the southern border have mental health issues or are the victims of sexual assault.  A recent study by Human Impact Partners, a California-based research group, and the community organization La Union del Pueblo Entero (LUPE) found that the recent enforcement environment, including family separation policies, is contributing to a mental health crisis in the Rio Grande Valley of Texas.[13]  The study claimed that there is an increased level of “toxic stress” in the community, including an increase in children demonstrating symptoms of post-traumatic stress disorder.[14]  In addition, there is strong evidence that migrant women and girls are the victims of sexual assaults that most often go unreported, uninvestigated, and unprosecuted.[15]  While the actual statistics are impossible to know, a variety of anecdotal studies and interviews indicates that anywhere between 50 percent and 80 percent of migrant women and girls experience sexual assault or coercion.[16]

These types of traumatic experiences on consolidated populations can overwhelm facilities with limited resources, but can especially affect small, rural facilities that may not have the capacity or resources to handle the patients.  As noted above, EMTALA requires the assessment and stabilizing treatment of any individual that comes to the emergency room.  Hospitals on the border should consider investments in mental health and sexual assault resources in order to meet these obligations and reduce the risk of not meeting the requirements placed upon them under the statute.  However, if the facility does not have the capability to treat a patient in a mental health crisis, or other diagnosis requiring specialized care, it may face another challenge in trying to transfer that patient.

Issues with Transfers

EMTALA requires that facilities that lack the capacity to treat a patient’s emergency medical condition must effect an appropriate transfer of the patient.[17]  CMS explains that a hospital is responsible for providing care “until the condition ceases to be an emergency or until the individual is properly transferred to another facility.”[18]  However, what if a transfer to the only appropriate facility to treat the patient requires a disclosure to law enforcement of an undocumented individual’s status?  Federal regulations provide U.S. Customs and Border Protection authority to operate within 100 miles of any U.S. external boundary.[19]  As a result, Border Patrol checkpoints may exist far inland from the areas in which undocumented patients or their family members may be seeking care.  A recent example in Texas involved a 10-year-old girl who was placed in removal proceedings immediately after being discharged from a hospital after receiving surgery for her cerebral palsy.  The girl’s status was discovered after the ambulance she was travelling in from Laredo to Corpus Christi passed through a Border Patrol checkpoint.[20]

After the incident made national headlines, Acting Chief of the U.S. Border Patrol, Carla L. Provost, issued a memo urging all chief patrol agents and  directorate chiefs to allow for ambulances to move through, or around, interior immigration checkpoints.  While the memo urges cooperation with local medical stakeholders, it also stresses that “[i]f the situation involved a non-urgent medical transfer, determination of alienage may be accomplished through normal processes, including through secondary inspection, if appropriate, or as operationally feasible depending on the particular circumstances of the case.”[21]  The memo fails to define what Border Patrol will consider urgent; therefore, there is still much uncertainty for any undocumented patient who needs to be transferred past a checkpoint to receive further care.  Hospitals must be prepared to counsel families on the possible implications of the transfer, and ensure they have fully informed, written consent. 


So long as the current situation on the southern border continues, hospitals there will need to stay on top of the potential legal challenges in treating immigrant patients.  Partnerships and collaborations with law enforcement and community advocacy groups will be key to ensuring that the facilities can meet the needs of their patients, the needs of their community, and their legal obligations. 

[1] 42 U.S.C. § 1395dd(a).

[2] U.S. Dep’t HHS, CMS, State Operations Manual, App. V, Emergency Medical Treatment and Labor Act (EMTALA) Interpretive Guidelines, Part III, Tag A-2406/C-2406 (revised 7/16/2010).


[4] An LEP individual is a person whose primary language for communication is not English and who has a limited ability to read, write, speak, or understand English.  45 C.F.R. § 92.4


[6] 45 C.F.R. § 92.8

[7] 81 Fed. Reg. 31375.

[8] PHI must be limited to name and address, date and place of birth, social security number, ABO blood type and rh factor, type of injury, date and time of treatment, date and time of death, and a description of distinguishing physical characteristics.  45 C.F.R. § 164.512(f)(2).


[10] 45 C.F.R. § 164.514(h).

[11] 45 C.F.R. § 164.504.

[12] Texas Family Code §§32.003 - .004.





[17] U.S. Dep’t HHS, CMS, State Operations Manual, App. V, Emergency Medical Treatment and Labor Act. (EMTALA) Interpretive Guidelines, Part II, Tag A-2407/C-2407 (revised 5/29/2009).


[19] Section 287 (a) (3) of the Immigration and Nationality Act, 66 Stat. 233, 8 U.S.C. § 1357(a)(3) provides for warrantless searches of automobiles and other conveyances "within a reasonable distance from any external boundary of the United States," as authorized by regulations to be promulgated by the Attorney General. The Attorney General's regulation, 8 C.F.R. § 287.1, defines "reasonable distance" as "within 100 air miles from any external boundary of the United States."



Lesley Anne M. Durant, JD, CHC, CHPC is the Vice President, Chief Compliance & Privacy Officer for DHR Health in Edinburg, Texas, a 500+ physician-owned health system that offers some of the most comprehensive medical care on the U.S. Southern border and is the only functioning Level I Trauma Center south of San Antonio.  Ms. Durant is a licensed attorney in the state of Michigan and is certified in Healthcare Compliance and Healthcare Privacy Compliance by the Compliance Certification Board.  She graduated cum laude from both Central Michigan University and Michigan State University College of Law.  She may be reached at [email protected].