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Unlocking the Affordable Care Act’s Potential for Justice-Involved Individuals

By Jennie Sutcliffe, Katy Welter & Sarah Somers

More than 2 million adults are incarcerated in American jails and prisons on any given day.1 An additional 4.7 million Americans are on probation or parole.2 Most of the people admitted to jails are processed and released within a few days; more than half of the nationwide jail inmate population turns over each week.3 On an average day, only slightly more than a third of jail inmates are serving a sentence after conviction for a crime.4

As recognized by the Centers for Medicare and Medicaid Services, many justice-
involved individuals have chronic conditions and high rates of substance-use and mental health disorders.5 More than half of state prison inmates report some form of mental health problem.6 Prisoners are several times more likely to show signs of diagnosable psychosis and major depression and about 10 times more likely to have antisocial personality disorder than the general population.7

Prision Health

Inmates of correctional institutions also experience substance abuse and dependence at a much higher rate than the general population. According to the U.S. Department of Justice, 53 percent of state and 45 percent of federal prisoners meet the criteria for drug dependence or abuse.8 Moreover, studies show that inmates have rates of hepatitis B, hepatitis C, and HIV (human immunodeficiency virus) two to ten times higher than the general population.9 Among women entering 32 adult correctional facilities in 2010, Chlamydia positivity was 6.9 percent, and gonorrhea positivity was 1.9 percent, with significantly higher rates among juvenile females.10 In 2004 reporting as being pregnant at the time of admission were 4 percent of state and 3 percent of federal inmates.11

The Affordable Care Act offers considerable opportunities to improve the access and quality of care for individuals involved in the criminal justice system.

In light of these staggering statistics, the implementation of the Patient Protection and Affordable Care Act (commonly referred to as the Affordable Care Act) offers considerable opportunities to improve the access and quality of care for individuals involved in the criminal justice system. Here we discuss the eligibility for health insurance programs for justice-involved adults, opportunities for the justice system to leverage the Affordable Care Act, and areas where advocates can push for further integration of the health care and justice systems.

Public Health Insurance Eligibility

Access to health care services for the justice-involved population can help avoid, shorten, or enable the transition out of incarceration. The Affordable Care Act expands eligibility for public health insurance and authorizes subsidies to purchase private policies, making it much more likely that justice-involved individuals can obtain health care coverage and health care before and after incarceration. Most important, the Affordable Care Act gives states the option to expand eligibility to most adults with incomes below 138 percent of the federal poverty level.12 This means that millions of uninsured adults now have access to Medicaid coverage, which has the potential to improve health, save public money, and reduce levels of incarceration.

Eligibility for Marketplace Coverage. The Affordable Care Act authorizes states to establish health insurance exchanges, or marketplaces, through which individuals can purchase “qualified health plans.”13 To help afford these qualified health plans, the Affordable Care Act authorizes tax subsidies to help pay premiums or cost-sharing reductions based on household income.14

To be eligible to enroll in a qualified health plan through the marketplace, an individual must be a resident of the state in which the individual is applying and must be a citizen or lawfully present noncitizen.15 Individuals are not allowed to enroll in qualified health plans if they are incarcerated, “other than incarceration pending the disposition of charges.”16

Unlike eligibility for qualified health plans, however, there is no barrier to eligibility for Medicaid when a person is incarcerated.

Eligibility for Medicaid Coverage. Medicaid is a cooperative federal and state program that covers services for many low-income people. The program is administered at the federal level by the U.S. Department of Health and Human Services’ Centers for Medicare and Medicaid Services. Each state has a “single State agency” responsible for administering its Medicaid program.17 Every dollar spent on state Medicaid services is matched by federal funds at a rate that varies with the per capita income for each state.18 States receive a much higher rate for services received by individuals newly eligible for Medicaid under Medicaid expansion—100 percent for calendar year 2016 and phasing down to 90 percent in 2020 and thereafter.19

Unlike eligibility for qualified health plans, however, there is no barrier to eligibility for Medicaid when a person is incarcerated. In fact, the agency that administers Medicaid, the Centers for Medicare and Medicaid Services, has repeatedly reminded states that individuals can be enrolled in Medicaid “before, during, and after the time in which they are held involuntarily in secure custody of a public institution.”20

However, federal Medicaid funding cannot pay for services for “inmate[s] of a public institution.”21 The term “inmate” is defined as one who is living in a public institution, except if he is in an institution for “a temporary period pending other arrangements appropriate to his needs.”22 A public institution is one over which a governmental unit exercises administrative control and includes jails, prisons, and other detention facilities.23 This exclusion does not apply to individuals who are on probation, parole, or under pretrial supervision.24

Federal funding is available, however, for incarcerated individuals who are patients of a medical institution.25 Therefore, if an inmate of a jail, prison, or juvenile detention center is transferred to a hospital and remains eligible for Medicaid, the inmate’s care can be covered.

Earlier this year, the Centers for Medicare and Medicaid Services released guidance to facilitate access to Medicaid services before and after a stay in a correctional institution.26 In this guidance the agency stresses that it intends to encourage and facilitate Medicaid enrollment of justice-
involved individuals. The guidance clarifies that many justice-involved individuals—
including those in some halfway houses, on home confinement, or in a correctional institution voluntarily—can receive Medicaid-covered services. The guidance explains that “[r]egardless of the label attached to any particular custody status, an important consideration of whether an individual is an ‘inmate’ is his or her legal ability to exercise personal freedom.”27

As the Centers for Medicare and Medicaid Services explained, helping justice-involved people enroll in Medicaid can make a significant difference in their health and help avoid crises and unnecessary institutionalization. Ensuring that this population receives Medicaid coverage can not only advance health but also save the state millions of dollars. Every dollar spent on prisoner care comes out of county or state coffers. By contrast, more than half—sometimes much more—of the Medicaid spending on prisoners is covered by federal dollars. Yet many states still terminate Medicaid eligibility for individuals who are incarcerated. Thus many states could potentially obtain millions in additional funds to give crucial health care services to this population—and the federal agency has made clear that it will support efforts to do so.

The expansion of Medicaid and the benefits covered by Medicaid have unlocked new avenues and types of treatment for the justice-involved population.

Understanding and Unlocking Medicaid Benefits. Historically individuals with severe health needs in the criminal justice system received treatment from providers that contracted directly with the county, city, or state. Because these clients were excluded from Medicaid, available treatment was limited in both breadth and depth and was contingent on funding. The expansion of Medicaid and the benefits covered by Medicaid have unlocked new avenues and types of treatment for the justice-involved population.

The Affordable Care Act requires that all nongrandfathered health plans in the individual, small group market and Medicaid cover 10 “essential health benefits.”28 These essential health benefits include mental health and substance-use disorder services such as behavioral health treatment. Furthermore, mental health and substance-use benefits must be covered at parity, meaning at the same amount as physical or surgical benefits.29

These protections guarantee that states’ Medicaid plans cover a certain threshold of mental health and substance-use benefits. At the same time, states retain some flexibility: they can determine the type, amount, duration, and scope of services within the federal guidelines. In Illinois, for example, covered substance-use benefits include inpatient hospital services, outpatient treatment, intensive outpatient treatment, residential rehabilitation, detoxification (inpatient and outpatient), and psychiatric diagnostic services. For mental health, the state covers assessment, treatment plan development, crisis intervention, psychosocial rehabilitation, community support, and assertive community treatment.

An opportunity particularly apt for the criminal justice system is that Medicaid can cover the medications required for a client to receive medication-assisted treatment—the use of medication with counseling and behavioral therapies to treat substance-use disorder and prevent opioid overdose. Medication-assisted treatment requires the administration of expensive drugs such as methadone, buprenorphine, and naltrexone.30 Medication-assisted treatment—especially when treating opioid addictions—improves treatment retention rates and prolongs periods of sobriety, while also reducing harm to infants born to opioid-dependent mothers.31 States can elect to cover these drugs in their benefit package, thus offering opportunities for criminal justice jurisdictions to expand their use of medication-assisted treatment.

Through Medicaid individuals can access services beyond traditional health benefits. In recent years the federal government has pushed states to see the health of a person as more than just physical health and to structure their Medicaid programs as such.32 These restructured programs include the services to take on the social determinants of health with the understanding that “conditions in the places where people live, learn, work and play affect a wide range of health risks and outcomes.”33 Accounting for the social determinants of health has allowed states to add services such as transportation, rental subsidies, peer support services, and nutritional assistance to their Medicaid benefit package. Individuals coming out of the criminal justice system and getting on Medicaid are unlocking access to physical health services, behavioral health treatment, and services that potentially improve their social and physical environment, thereby improving their overall health.

Cook County Jail in Chicago has capitalized on this opportunity by developing a protocol to screen all inmates for health care coverage status during intake.

Justice System Opportunities

The criminal justice system presents many opportunities to tap into and leverage Medicaid for those who come in contact with the system. The sequential intercept model established by the GAINS (Gather, Assess, Integrate, Network, Stimulate) Center at the Substance Abuse and Mental Health Services Administration outlines a practical road map for jurisdictions trying to identify where to start (see fig. 1). To maximize the benefits of Medicaid, policy makers and advocates should consider how to enroll eligible clients at each intercept and how to design interventions that rehabilitate offenders with the use of Medicaid. Here we highlight three different justice and health initiatives from Illinois. However, jurisdictions can find many more projects to look to as examples.34

Chart

Initial Detention: Enrollment at the Cook County Jail. Annually over 11 million people are admitted to local and county jails across the country.35 This intercept is a huge opportunity to inform people about their eligibility for health insurance, check the current status of their coverage, and, where possible, submit an application for Medicaid or the marketplace. Cook County Jail in Chicago has capitalized on this opportunity by developing a protocol to screen all inmates for health care coverage status during intake. Those without coverage can complete an application with a case manager during intake. This initiative is made possible by collaboration among the Cook County Health and Hospital System, the Cook County Jail, and Treatment Alternatives for Safe Communities Incorporated, a nonprofit entity that manages cases. After having initiated their applications at the jail, 15,000 individuals had health insurance coverage as of June 2016.36

Sentencing: The ACT Court. An example of an intervention at the sentencing intercept, the Access to Community Treatment (ACT) Court of Cook County is a specialized probation program targeting nonviolent felony offenders who are newly arrested in Chicago and are opioid dependent. The ACT Court employs a problem-solving approach; that is, by leveraging evidence-based practices, a collaborative team of justice professionals, and the authority and resources of the justice system, the ACT Court targets the root causes of probationers’ criminal behavior.37

Since its inception in January 2014, the ACT Court has aimed to leverage Medicaid to fund reimbursable services. The court team links participants with community-based behavioral health, housing, case-management, vocational, and educational services. Participant compliance with the terms of the ACT Court probation—e.g., maintaining sobriety and attending treatment and regular court dates—is monitored closely and encouraged through an array of rewards including praise from the judge, longer time between court dates, and early termination of probation.

The ACT Court has exposed opportunities for people who come before the court to access health care.

Apply “Bridge” Funding to Nonreimbursable Behavioral Health and Complementary Services. The ACT Court received planning, implementation, and maintenance funding from the Illinois Criminal Justice Information Authority, via a state justice reinvestment grant program called Adult Redeploy Illinois. For example, during the 2015 fiscal year, ACT Court staff partnered with a local health care provider to maximize participants’ Medicaid benefits. During that 12-month period, the provider administered $295,255 worth of substance-abuse treatment services, of which $201,685, or 68 percent, was paid for by Medicaid, with the remainder billed to the Adult Redeploy Illinois grant. In other words, through the ACT Court, Adult Redeploy Illinois received approximately $2 worth of substance-abuse treatment services for every $1 of grant funds expended. Also, Adult Redeploy Illinois used contracts and memoranda of understanding to obtain better data and improve referral and follow-up procedures.

Reentry is a natural place to focus outreach and enrollment efforts with the aim of ensuring continuity of care for returning citizens.

Improve Court-Community Relations by Hosting Treatment Providers or Taking Justice Professionals to Visit Provider Sites. One challenge for the ACT Court—which operates within a large urban area with dozens of community treatment providers contracting with over 20 managed care plans—has been to establish clear channels of communication between the court and community treatment providers. The ACT Court either hosts or visits a community treatment provider at least quarterly.

Integrate Enrollment and Redesignation into the Probationers’ Case Management Plans. In partnership with local enrollment specialists, the ACT Court strives to ensure that every participant has health care insurance or has applied for it.

Collaborate with Health Law Experts to Train Justice Practitioners (Including Defense Attorneys, Community Corrections Officers, and Judges) in How to Maximize Health Care for Their Clients. The Access to Community Treatment Steering Committee—a group of justice system, health care, and community stakeholders that strategically directs the felony criminal courts—is a platform for the criminal division stakeholders to improve policies, expand interagency training, and enhance access to community-based services generally. For example, in May 2016, experts from the Sargent Shriver National Center on Poverty Law trained Cook County Adult Probation staff on Medicaid enrollment and care coordination.

Prison Reentry and Parole: Continuity of Care from Prison to Community. Reentry is a natural place to focus outreach and enrollment efforts with the aim of ensuring continuity of care for returning citizens. Get Covered Illinois and the Illinois Department of Corrections have incorporated Medicaid outreach and enrollment. Many of the personnel who work with the reentry population—including Illinois Department of Corrections staff such as reentry counselors and parole agents—were trained on the basics of Medicaid and how the reentry population could benefit from enrolling in Medicaid. They were taught how to apply, what information was needed to apply, and where clients could go for help. Get Covered Illinois and the Illinois Department of Corrections placed in-person assisters at parole offices across the state to facilitate enrollment. The state used automated messaging to spread the word; individuals on parole use a toll-free number to check in with their parole agent and often receive messages this way. The state recorded a message informing individuals that they should apply for Medicaid and when in-person assistance was available at the nearest parole office. Through this training and outreach, the Illinois Department of Corrections reached most of the parole population to facilitate their enrollment in Medicaid.

Outreach to the reentry population and subsequent enrollment in Medicaid are time-intensive and come with a fiscal note. Medicaid can offset that cost and allow states to recoup some of the time and money spent engaging with this hard-to-reach population. Medicaid administrative claiming is an avenue that allows states to receive federal money for some of the administrative costs affiliated with administering the Medicaid program.38 On average, 96 percent of Medicaid expenditures cover traditional direct services; the remaining 4 percent, however, cover nonservice functions, including funding to states and localities for administrative expenses related to Medicaid.39 In this manner states can increase federal funding for the activities being done to enroll the reentry populations into Medicaid and to offer case management as part of parole services. Medicaid Administrative Claiming covers services such as referral, coordination and monitoring, Medicaid outreach, arranging transportation to a Medicaid-covered service, Medicaid eligibility intake, and interagency coordination.40 Although Illinois does not take advantage of Medicaid Administrative Claiming, some states are allowed by the Centers for Medicare and Medicaid Services to use Medicaid Administrative Claiming for work being done enrolling individuals into Medicaid 30 days prior to their release from a state facility.41

Opportunities for Advocates

Advocates are a crucial link between the criminal justice system and the health care system. In many states, policies and regulations governing the intersection of Medicaid and the justice system are just being developed, giving advocates the chance to have a meaningful impact. Avenues are open for advocates to encourage the justice system to consider Medicaid as a resource and incorporate a health care perspective in its work.

The first is to incorporate medical and behavioral health questions into the initial client intake interview. With 54.3 percent of justice-involved individuals having substance-use disorders and over half of state and federal prison and local jail inmates with chronic health conditions, medical and behavioral health is an important part of the picture of justice-system involvement.42 Learning about these challenges presents advocates with an opportunity to motivate clients to access care for their conditions.

Second, for individuals who work directly with specialty courts, advocating raising the bar on disqualifying factors for access to treatment can have a profound impact. The Urban Institute found that nationally just 7.4 percent of arrestees at risk of substance dependence were eligible for drug courts; moreover, just 3.8 percent of eligible arrestees were treated via drug court.43 Almost all problem-solving courts limit eligibility based upon criminal history (either the number or type of prior convictions), and a majority further restrict entry via judicial, prosecutorial, or community-correctional discretion.44 Advocates can remove or at least lower these barriers to care by pushing for legislative and local policy changes and by putting treatment on the table in all case negotiations.

A third avenue is partnering with criminal and health law experts to train justice practitioners (including defense attorneys, community corrections officers, and judges) about the incarceration alternatives in state and local jurisdictions, as well as the benefits of Medicaid-funded care. After initial training these partners can give technical assistance as jurisdictions begin systematic implementation of policies that utilize Medicaid.

Fourth, advocates counseling clients under judicial supervision or community corrections should motivate clients to access care through their plans. While defense attorneys are not professional case managers, they can enable clients to access care by reminding clients of the health and social service benefits associated with medical insurance and by connecting clients with their managed care plan’s care coordinator, case managers, or other health care professionals. Where a client must treat a behavioral health problem to fulfill the conditions of the client’s sentence, advocates should emphasize the legal benefits of getting access to such services as reduced supervision, successful completion of the court’s conditions, or having a conviction vacated by the judge or charges withdrawn altogether by the state.

The Affordable Care Act is historic. We have the opportunity to use it to push for change within the criminal justice system. As advocates, this is one opportunity we cannot afford to miss.

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