Dorsey Health Law

The Dorsey Health Law blog team keeps readers up-to-date on relevant topics in the health care industry. In order to do so, the members of the blog team communicate regularly with other practice groups within the firm for applicable updates from client publications. For this post, we would like to thank Dorsey’s Jack Sullivan, Nisha Verma, and Sam Richter for the following e-newsletter update: In a widely expected move, Acting National Labor Relations Board (“NLRB”) General Counsel William Cohen rescinded a range of Biden Administration labor-law policies, including high-profile directives that targeted non-competition agreements as unlawful under the National Labor Relations Act (“NLRA”) and that increased the financial penalties that could be imposed on employers accused of violating the NLRA. Employers with union and non-union workplaces alike should take note, as the changes will have an immediate impact on how NLRB regional offices investigate and prosecute unfair labor practice charges filed by individuals and unions. Read More >

The Dorsey Health Law blog team keeps readers up-to-date on relevant topics in the health care industry. In order to do so, the members of the blog team communicate regularly with other practice groups within the firm for applicable updates from client publications. For this post, we would like to thank Dorsey’s Kirk Schuler, Mike Sevilla, and Andrew Stone for the following e-newsletter update: Attorney General Bondi’s first actions in her role as chief law enforcement officer of the Federal Government demonstrate her focus on immigration enforcement. This may lead to additional criminal investigations into companies that are suspected of employing undocumented immigrants, and could even lead to criminal cases against state and local officials who choose not to comply with requests from federal immigration authorities. Organizations and individuals, public and private, should ensure they are prepared for these potential enforcement actions. Read More >

The Dorsey Health Law blog team keeps readers up-to-date on relevant topics in the health care industry. In order to do so, the members of the blog team communicate regularly with other practice groups within the firm for applicable updates from client publications. For this post, we would like to thank Dorsey’s Alex Hontos, Chris DeLong, and Eric Weisenburger for the following e-newsletter update: The Trump Administration has signaled that it is disrupting settled relationships with recipients of Federal financial assistance, including grants and loans. For organizations currently implementing federal grant programs—or relying on federal assistance funding as part of future projects—it is important to understand legal rights and obligations. And to understand what remedies are available if the United States abruptly alters those rights. Read More >

The Dorsey Health Law blog team keeps readers up-to-date on relevant topics in the health care industry. In order to do so, the members of the blog team communicate regularly with other practice groups within the firm for applicable updates from client publications. For this post, we would like to thank Dorsey’s Alex Hontos, Christopher DeLong, and Eric Weisenburger for the following e-newsletter update: On January 27, the Acting Director of the Office of Management & Budget issued a new Memorandum (M-25-13) that presages significant disruption—if not outright cancellation—of many federal assistance awards. Spanning federal grants and federal loans and loan guarantees, recipients of such funds should be paying close attention to current or planned projects, experiments, research, and programs funded in whole or in part by federal funds. Read More >

For over a decade, agents with U.S. Immigration and Customs Enforcement (“ICE”) were instructed pursuant to official policies to refrain from conducting law enforcement actions in or near various “sensitive locations” or “protected areas,” such as healthcare facilities, schools, and churches. Exceptions existed in the policies for exigent circumstances, such as when the enforcement action involved a national security threat or there was an imminent risk of death, violence, or physical harm to a person. But the exceptions and the policies are no more: One of President Trump’s first actions in his second term was to rescind the policies, first put in place in 2011 and reiterated in 2021.  In the following days, hospitals and other previously protected places began to report the presence of ICE agents conducting enforcement actions involving searches, interviews, and arrests. Because of this abrupt change in policy, many hospitals and other healthcare facilities are understandably unfamiliar with what to do and expect when ICE agents arrive at your door. But fear not, below is a short list of “dos” and “do nots” to follow when (and even before) ICE agents arrive at your facility.  This guidance is intended to help your staff balance cooperating with federal agents and protecting patient privacy. Do: Prepare a written policy and standard operating procedure for interacting with immigration agents (which should accompany policies for interacting with law enforcement authorities in general). Identify an internal resource (in-house counsel or other representative with education and training on dealing with law enforcement), whether a single person or a team, who is well-versed in the rules for interacting with ICE agents. Identify an external resource, such as outside counsel, who can support your response when immigration agents arrive. Contact your internal and external resources immediately when immigration agents arrive. Instruct your front desk staff to inform the ICE agents that they must speak with your internal or external resource, and make arrangements to do so. While making those arrangements, direct the ICE agents to a conference room away from patients in order to avoid causing patient concern/disruption. Identify the ICE agent and inquire whether any government lawyer is aware of their activities. Understand that ICE agents are allowed in public spaces like a hospital waiting room, parking lots, and cafeterias, but to enter any private patient care areas they need a valid warrant or your permission (which you may withhold, unless there is a judicial warrant). Understand that any warrants or subpoenas served by immigration agents may be judicial (issued by a federal or state court judge) or administrative (issued by the government agency, including an immigration judge), and that agents do not have the authority to enter private areas with an administrative warrant or subpoena. Have in-house or outside counsel review all warrants and subpoenas to determine their validity, and cooperate with agents that present valid judicial warrants or subpoenas.  Generally speaking, any judicial search warrants should: Be signed by a judge. Specify the name of the hospital, the time period for executing the warrant (and the current time is within that stated time period) and describe the scope of the search. If there is no judicial warrant or subpoena, but the ICE agents are armed with an administrative warrant or subpoena, or otherwise describe an exigent circumstance (e.g., their actions are necessary to avoid imminent harm to the public, national security, or your staff/other patients), evaluate the circumstances.  It is important to balance protection of patient privacy with cooperating in an investigation that appears necessary to protect individuals/the public. Have at least one facility representative accompany each ICE agent around the facility.  Note any staff or patients interviewed or items/records seized. Staff may videotape the ICE agents. Protect patient privacy in accordance with HIPAA and applicable state law.  HIPAA generally does not allow disclosure of patient information (protected health information) including patient names or immigration status unless an exception under HIPAA is satisfied.  Your lawyer can help to evaluate whether an exception applies to any requested disclosure.  This may include objecting to a search that is outside of a valid warrant. Employees, patients, and visitors have the right to remain silent and they can be advised on that right. Be aware the ICE agents may not be in the facility for surveillance or investigation, but instead may be there to deliver an I-9 audit.  It is important to develop policies and procedures to appropriately respond to an I-9 audit.  The facility will have three business days to produce the requested I-9 forms.  It is important to contact the facility’s attorney immediately if you receive an I-9 audit. Understand that immigration agents visiting your facility may be with ICE, or with US Customs and Border Protection (“CBP”), or with the United States Citizenship and Immigration Services (“USCIS”). For example, USCIS officers may be conducting a Fraud Detection and National Security (FDNS) site visit to confirm the veracity of a nonimmigrant (H-1B, L-1, TN, etc.) petition. Cooperation with this type of site visit is not mandatory, but it is beneficial to provide officers with requested information so that they are able to make a finding with a full record. Do Not: Do not allow ICE agents into patient care areas without the input of your internal and/or external resources, and confirmation that they have valid authority or your permission.  The front desk staff can tell the ICE agents that they are not allowed to let them into private patient care areas without talking to the facility’s lawyer. Do not give statements to ICE agents without consulting with an attorney. Do not direct employees or patients to refuse to speak to ICE agents when questioned. Do not hide patients or employees or assist them in leaving the premises. Do not provide false information or destroy records. Do not leave patient information visible from public areas. Even without a search warrant, ICE agents in public areas can look at things that are in plain view, such as papers and computer screens.  So, reasonable safeguards should be implemented to cover patient information that is in public spaces, such as covering papers or shielding computer screens or taking any conversations into private spaces to avoid any inadvertent disclosure. Do not allow the presence of ICE agents to interfere with patient access to health care. Dorsey attorneys are actively monitoring activities of the new Administration and will continue to publish updates and analysis on the impacts of these actions in health care. Contact your regular Dorsey attorney or the authors for further guidance.

UPDATE - January 29, 2025: The Trump Administration rescinded the OMB memorandum ordering the federal grant and loan pause on January 29, 2025.   UPDATE - January 28, 2025: The federal grant and loan pause described in this blog post has been temporarily enjoined by a U.S. District Court until February 3, 2025 for funds that were already set to be disbursed. We will continue to monitor the status of the pause on federal assistance. UPDATE - January 28, 2025: Following a widespread lock out to Medicaid portals in all 50 states, the White House Press Secretary issued a statement  on X that Medicaid would not be impacted by the OMB spending freeze memo and the Medicaid portal should be back online soon. A memorandum from the Office of Management and Budget (“OMB”) on January 27, 2025 notified heads of federal agencies of a temporary pause on all disbursements of federal grants and loans, effective at 5pm Eastern on January 28, 2025.  The OMB memorandum requires federal agencies to submit detailed information on programs, projects, or activities subject to the pause by February 10, 2025 so that OMB can evaluate their alignment with the Administration’s priorities for federal spending which have been revealed in part through recent Executive Orders. There is some uncertainty as to how broadly the pause in federal funding will apply, as the OMB memo permits OMB to grant exceptions on a case-by-case basis, and notes that the pause is subject to what is “permissible under applicable law.” The memo states that the pause does not impact direct federal assistance to individuals, and therefore should not disrupt the flow of Medicare reimbursement to health care providers, or impact Social Security payments. Many in the health care industry will be impacted, however, as the pause will impact federal funding disbursed by the Department of Health and Human Services, which is the largest grant-making agency in the U.S. Access to Medicaid payment portals was cut off in all 50 states as of January 28, 2025, creating uncertainty about the pause’s applicability to Medicaid and Medicaid beneficiaries’ ability to access care. The federal funding pause will likely impact every state-federal cooperative program which receives funding through the federal government  For example, health centers providing family planning, HIV treatment/prevention and other services which are paid for through federal funding, including impacting these clinics’ ability to make payroll and keep the centers open for patient care. The pause will also have an impact on federal research and loans to research institutions, as well as to universities and other private organizations. The pause raises questions regarding the President’s ability to override spending decisions made by Congress and compliance with a federal statute called the Impoundment Control Act. The first lawsuit challenging the pause, which includes health care industry plaintiffs, was filed on January 28, 2025. For additional guidance on steps for recipients of federal grant and loan funding to take now, please see this post by our Dorsey colleagues. An important first step is to seek clarification from your grants management official regarding permissible activities under the grants during this period of time covered by the pause. Then, continue to follow up and monitor any changes to that advice as the issues continue to play out over the coming days, weeks and months. Dorsey attorneys are actively monitoring Executive Orders and other activities of the new Administration and will continue to publish updates and analysis on the impacts of these actions in health care.

The Dorsey Health Law blog team keeps readers up-to-date on relevant topics in the health care industry. In order to do so, the members of the blog team communicate regularly with other practice groups within the firm for applicable updates from client publications. For this post, we would like to thank Dorsey’s Alex Hontos, Chris DeLong, and Eric Wisenburger for the following e-newsletter update: Yesterday President Trump issued an Executive Order with far-ranging impacts for Federal contractors and grantees related to anti-discrimination plans, affirmative action plans, and DEI initiatives. The EO works a significant change to settled expectations and compliance programs, and forecasts significant enforcement efforts against Federal contractors and grantees that run afoul of what the Administration views as discrimination. Read More >