Judge considers ICE policy allowing use of Medicare patients' info for immigration enforcement

SAN FRANCISCO (CN) — A federal judge indicated Tuesday he was likely to allow the Trump administration to move forward with a new Immigration and Customs Enforcement policy allowing the agency to obtain basic information of certain Medicaid patients for immigration enforcement purposes.

However, U.S. District Judge Vince Chhabria also suggested he would block the government from using the policy more broadly while he awaits further clarification on it.

Twenty-one states are asking the court to block the administration from enforcing an October ICE policy memo that rescinded a 2019 policy, which stated that ICE would not use health care information for immigration enforcement purposes.

Instead, the new ICE policy would enable the agency to request, receive, and use information from the Department of Health and Human Services for “any and all law enforcement activities that ICE is authorized to pursue as a matter of federal law.”

“There are some issues with these memos. There is a concern about how broad they are, what they entitle ICE to get and what they do not entitle ICE to get," U.S. District Judge Vince Chhabria said. “But, one thing that is clear from the new policy is that ICE is entitled to obtain from HHS location information about aliens, contact information and biographical information, which is a little vague, I admit.”

Chhabria didn’t issue a ruling on the state’s injunction motion at the hearing. However, he indicated he was leaning towards ruling in favor of the government as to ICE obtaining basic contact, location and biographical data on “alien” Medicaid patients, but he would block the agency from applying the policy to a broader array of data, programs or activities.

The Barack Obama appointee also requested further clarification from the parties on whether he had the authority to partially deny the plaintiffs’ request for a preliminary injunction and asked the government to answer questions about the vagueness of the new policy.

“The breadth of the policy, the scope of the policy, who it applies to, has not been adequately explained,” he said.

The judge spent the majority of Tuesday’s hearing asking the government to clarify the October ICE memo, including whether or not the policy applies to health programs outside of Medicaid.

“You are saying that ICE is asserting in the new policy the authority to obtain information and data relating to participants in a whole variety of health care programs, but at the moment, it is only asking [Centers for Medicare & Medicaid Services] for data relating to participants in the Medicaid program?” he asked the defense.

Michael Gerardi, an attorney with the U.S. Justice Department, responded that “statutes give broad authorizations to request data not limited to particular programs,” however, “the thrust of the overall memo is focused on the Medicare systems.”

Chhabria also peppered Gerardi with questions related to whether U.S. citizens’ and permanent residents’ data would be transmitted to ICE and what, exactly, the phrase “biographical data” means.

Gerardi had answers for some of the judge’s questions, affirming that the policy is understood to not permit ICE to obtain information about Medicaid patients who are U.S. citizens or permanent residents and that biographical data is reasonably understood to include name, sex and date of birth, among other things.

However, he did not have a response to Chhabria’s inquiries on the scope of ICE’s authority, why the agency wants information on patients’ household members, or what additional information would be requested on a “case-by-case basis.”

“Standing here today, I’m not sure a precise answer to what that information is,” he said, responding to a question as to what information about household members the policy entails. “I don’t want to speculate.”

Gerardi also said he did not have any examples of information ICE would not be permitted to obtain from HHS under the new policy, repeating that he “didn’t want to speculate.”

In rebuttal, California Deputy Attorney General Anna Rich claimed that the new policy violates existing HHS policies, as well as the Health Insurance Portability and Accountability Act (HIPAA) and the Privacy Act.

The judge appeared skeptical of the state’s position.

“I always thought HIPAA was just about private health care information. I don’t know if disclosing a particular person’s name and address and if they are on Medicaid, is possibly a violation of HIPAA,” he said.

Rich also asked the court to grant the plaintiff state’s preliminary injunction in its entirety, adding that the “law does not allow the court to pick and choose parts of the memo,” which is “already confusing for the reasons you’ve highlighted.”

In contrast, Gerardi argued that the court could split the decision.

Chhabria said he expects to rule on the motion by the end of this month.

In a statement to Courthouse News, the California Attorney General’s press office said that they “appreciate the judge’s careful consideration of this matter” and they “remain committed to pushing back against the President’s sweeping attempt to misuse Americans’ data to carry out its mass deportation agenda.”

A representative for the U.S. Justice Department did not immediately respond to a request for comment

The states sued the Trump administration in July, claiming that the health information of millions of individuals — including their immigration status — was shared with DHS, which oversees ICE, without their consent and in violation of federal law.

On Aug. 12, Chhabria granted the plaintiff states’ initial request for a preliminary injunction, temporarily blocking DHS from using Medicaid data obtained from the plaintiff states for immigration enforcement purposes, including data they already acquired.

In his August order, the judge ruled it did not appear that the agencies carried out “a reasoned decision-making process” before making the unprecedented decision to share the data.

Chhabria said he was extending that previous preliminary injunction until Jan. 5 to allow for emergency appeals after his ruling is issued on the preliminary injunction motion at issue in the hearing Tuesday.

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