Editor’s Note: The Campbell Law Observer recently held its write-on competition for the Fall 2015 semester. This article was awarded the second highest overall score by our editorial staff.
Blanca Borrego, forty-four year old Mexican citizen, was arrested on September 3, 2015, at a Texas gynecologist’s office as she waited to be seen by her doctor for a painful cyst that was diagnosed just last year. She never got a chance to be examined by her doctor.
Borrego, an undocumented immigrant, waited for nearly two hours at the Northeast Women’s Healthcare clinic as local law enforcement officers instructed clinic workers to delay seeing her until they could arrive at the scene. Although Borrego presented a valid private health insurance card, workers at the clinic reported her to the police after she used a fake ID to check in for her doctor’s appointment. Accompanied by her two daughters, ages eight and twenty-two, Borrego was finally ushered into her doctor’s office where police were waiting to arrest her.
Borrego remained in jail from September 3, 2015, until she was released on September 15, 2015 on a $35,000 bond. The district attorney charged Borrego with third degree felony tampering with a government record—a crime that carries a penalty of 2-10 years in state prison and/or a fine of no more than $10,000.
“They took her into that examination room solely for the purpose of being arrested . . . I think it’s a violation of HIPAA laws”
Borrego’s attorney, Clarissa Guajardo is now raising questions as to whether clinic workers violated patient privacy laws and HIPAA, by alerting authorities about Borrego’s presence. In an interview with HoustonPress Guajardo voiced her concern surrounding the way that her client was arrested. “They took her into that examination room solely for the purpose of being arrested. I just have a very hard time with that. I think it’s a violation of HIPAA laws,” Guajardo said. In a later interview with the Huffington Post, Guajardo gave specific reasons why she thinks Borrego’s arrest may not have been valid. “It was wrongful and she was wrongly detained. This lady had private insurance. She showed a valid health insurance card…” According to patient privacy laws, Guajardo may have good reason to be skeptical of the way her client was treated at the women’s healthcare clinic.
The Health Insurance Portability and Accountability Act (HIPAA) was passed in 1996 to protect private medical records from being released to the public by healthcare providers either inadvertently or with malice. According to the U.S. Department of Health & Human Services, the rationale behind HIPAA is to provide federal protection of patients from “covered entities and their business associates.” There are, however, some exemptions to HIPAA that apply in very specific situations.
One such exemption gives healthcare providers the authority to disclose certain information to law enforcement officers when a patient is suspected of a crime. The Code of Federal Regulations gives this authority to healthcare employees when the alleged victim of the crime is a member of the healthcare provider’s workforce and suspects that a patient is the perpetrator of the crime.
Although in Borrego’s situation, the medical staff may have suspected her of a crime after she handed over a phony ID card to check in for her appointment, no member of the staff was a victim of the crime. This raises the question as to whether the medical staff violated HIPAA laws by alerting authorities to Borrego’s presence at their facility. Even the clinic’s policies state when a patient’s medical information may be released to law enforcement officials in accordance with HIPAA laws. The facts of Borrego’s circumstances do not appear anywhere in the clinic’s approved reasons for involving law enforcement.
There is another exception under The Code of Federal Regulations, however, that allows an entity to release protected health information to law enforcement officials if the entity believes in good faith, that the information constitutes evidence of criminal conduct that occurred on the premises of the entity. Under this section of the CFR, the clinic is seemingly justified in releasing Borrego’s information to the police because clinic workers, in good faith, believed that Borrego used fake identification, and the incident occurred on the premises of the clinic. 1
Guajardo believes the way the clinic handled the situation may even be a violation of the Hippocratic Oath . . .
Guajardo is not convinced that the clinic adhered to its policies and procedures correctly by delaying Borrego’s medical treatment for the sole purpose of arresting her. Guajardo believes the way the clinic handled the situation may even be a violation of the Hippocratic Oath—the oath taken by physicians requiring a new physician to swear to uphold specific ethical standards.
The touchy circumstances surrounding the arrest of Borrego have sparked new discussion and outcry from some organizations that advocate for immigration reform. The Texas Latina Advocacy Network, under the National Latina Institute for Reproductive Health, believes that collaboration between state legislatures and immigration officials played a role in Borrego’s arrest. Staff member of the Advocacy Network, Ana Rodriguez DeFrates wrote: “This collaboration creates a climate of fear and mistrust that places women, children, and LGBTQ people at particular risk for harm—whether by overzealous police, or Immigration and Customs Enforcement (ICE) officials, or those who would exploit the fear that often deters immigrants who’ve experienced crime from reporting.”
Memorial Hermann Medical Group, which operates the clinic, stands by the decision of its employees to turn Borrego over to the police. A spokesperson for the medical group said in a statement that “the staff contacted police because of potential fraud, not because of Borrego’s immigration status.”
Borrego’s arrest brings to the surface, the very real feelings of fear, unrest and inferiority felt by many undocumented immigrants in this country.
Regardless of whether Borrego’s immigration status played a role in her arrest, there should be no dispute that our country’s tumultuous history concerning immigration law shows a need for reform. Just last year, President Obama announced the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) administrative reform program, as well as an expansion of the Deferred Action for Childhood Arrivals (DACA).
Under DAPA, undocumented immigrants who were the parents of either a United States citizen or lawful permanent resident would be allowed to apply for work authorization and be protected from deportation, if the parent had been in the country since January 1, 2010. Similarly, DACA extended temporary citizenship to young people were brought to the United States as children.
Since their announcement, both of these programs have been fiercely opposed by the state of Texas. The state’s former governor, Greg Abbott, filed a lawsuit against the government to stop implementation of the programs during his tenure as Texas’ attorney general. As recently as February 16, 2015, U.S. District Court Judge Andrew Hanen issued a temporary injunction that will continue to impede DAPA and DACA’s progress while Judge Hanen decides the legal merits of the case.
Borrego’s arrest brings to the surface, the very real feelings of fear, unrest and inferiority felt by many undocumented immigrants in this country. Had immigration law been more expansive, perhaps Borrego would have had no reason to use fake identification while trying to receive the most basic care afforded to women in this country.
[T]here is a compelling need to uphold the basic principles of human rights and dignity of those within the boundaries of the United States.
On one side, some may feel that Borrego deserves leniency due to the unsettled state of immigration policies and because Borrego was simply trying to see her doctor—a basic necessity for all humans. Others may feel that because Borrego broke the law, her arrest and subsequent detainment was necessary to uphold the current legal system.
Borrego, along with her husband, have lived in the United States since 2003. The couple has a 22-year-old daughter, a 19-year-old son, and an 8-year-old daughter. Borrego would have qualified for work authorization and safety from deportation had DAPA been implemented last year. Borrego was set to appear in court on September 29, 2015. No further updates have been released.
As the war over immigration continues to rage between political parties, lobbyists, and private organizations, all sides should remember that regardless of citizenship status in this country, there is a compelling need to uphold the basic principles of human rights and dignity of those within the boundaries of the United States. Throughout the decades, this attribute has set the United States apart from other countries—he heated debate on immigration should not make anyone lose sight of this ultimate goal.