“Can criminal justice reform succeed without
addressing the health of incarcerated people?”
By Ashwin Vasan for The Marshall Project
Nearly 60 percent of Americans support some version of “Medicare for All,” an expansion of federally-funded health insurance to cover everybody. Rep. Alexandria Ocasio-Cortez, D-N.Y., the new face of the progressive movement, has suggested it is a moral priority, and multiple 2020 presidential candidates have made it a part of their platforms. But no one is talking about making federal health insurance truly “for all” by extending eligibility to the 2.2 million people incarcerated in this country.
As a primary care doctor who cares for low income people, some of whom are or have been involved in the justice system, I have dealt first-hand with the problems created by the so-called “inmate exclusion policy”—and it is devastating.
The original Social Security Act of 1935 prohibited the payment of federal dollars, either directly or via state pass-through, for services for “inmates of a public institution.” This means that federal dollars cannot be used to pay for healthcare or other services for incarcerated people in local jails or in state prisons, except when they are hospitalized for more than 24 hours in a separate healthcare facility.
This has serious implications for incarcerated people. Most of them, at the time they were incarcerated, were either already enrolled or were eligible for Medicaid, the federal health insurance program for very low-income people. Currently, 19 states terminate Medicaid coverage completely when a person goes to prison, meaning that he or she must reapply after release. (The remaining 31 states suspend coverage for varying amounts of time, requiring reactivation or reapplication.)
The results of this policy are real, and deadly. Gaps or delays in care happen frequently. Recently released patients often have difficulty seeing a provider soon after release, as many will not accept them while their insurance is inactive. Prescriptions that are started inside are usually not continued on release, resulting in treatment interruptions. This is especially important for chronic conditions like mental illnesses, HIV, Hepatitis C, hypertension and diabetes, all of which afflict people involved in the criminal justice system at higher rates than the general population, and require consistent medication adherence.
Incarcerated people have up to 12 times the risk of death within the first two weeks after release, and up to four times within the first year. Lack of continuity of care certainly contributes to this horrifying statistic.
In most states, prisons and jails are among the largest providers of health care for mental illness and substance abuse, including opioid addiction; in some states, correctional health care is the largest provider. Ensuring continuity of care is an essential part of re-entry services and can lower the risk of re-incarceration. Untreated behavioral health problems are a big part of why people go in and out of prison repeatedly.
The inmate exclusion policy also affects the quality of care. Because correctional health services are not federally reimbursable, they are also not obliged to meet clinical standards set by the Centers for Medicare and Medicaid Services, which set basic quality standards for any medical care paid for by the federal government through Medicaid or Medicare. This gap in standards has many repercussions, including that the medications that I prescribe for patients are often not continued if they are incarcerated.
Years ago, a patient of mine in his mid-40s we’ll call Mr. Edwards, under my care for several years for difficult-to-treat high blood pressure, suffered a stroke within weeks of discharge from state prison, where he had spent the last year. When I visited him in the emergency room, he told me that while incarcerated he had only received two of the four medications he needed to control his blood pressure, and then had difficulty filling his prescriptions and reconnecting into care after release because his insurance was inactive.
His story is not unique. The unpredictability and dubious quality of most correctional health services, in no small part due to the inmate exclusion policy, makes it nearly impossible to ensure consistent, high quality care, especially during transitions when people go in and out of prisons. Eliminating the exclusion would lift standards and save lives.
The inmate exception is also costly. Correctional healthcare at all levels (federal, state, local) is currently paid for out of corrections funding, with states spending over $8 billion in 2015 alone. In other words, approximately 20 percent of their total corrections budget goes toward healthcare.
If incarcerated people were included in Medicare for All and the federal government reimbursed state and local authorities for their healthcare, that could free up funds for other priorities: higher-quality care, more preventive care, or better oversight of the private health care providers who tend to cut costs and deny care in prisons. Incarcerated people might be relieved of the need to make co-payments to those private providers. More than 20 states have turned over health care for incarcerated people entirely to private firms; federal reimbursement might prompt these states to reconsider. And of course, the injection of cash from the feds could also be directed toward other priorities, such as the crumbling infrastructure and inhumane physical conditions of jails.
Efforts are underway to reduce, but not eliminate, the impact of the inmate exclusion. H.R.4005 the Medicaid Reentry Act, which would reactivate Medicaid 30 days before a person is released from prison, passed the House in 2018 and is now in Senate committee. Places like New York, Connecticut and Ohio are trying to reactivate Medicaid before discharging people with HIV or serious mental illness, for example.
In practice, however, these programs are limited in scope and often require significant additional funding either through state and local resources or federal waiver programs. They are especially hard to implement in large jail and prison environments with high turnover rates, like Rikers Island in New York, where the average length of stay is about 70 days.
At its core, covering incarcerated people under Medicare for All is a moral question. Can a policy that is purportedly grounded in fairness, justice and equity continue to deny the basic right to healthcare to an entire people, disproportionately black and brown men, and perpetuate a separate, substandard system of care for some? Can true criminal justice reform succeed without addressing the health and human rights of incarcerated and formerly incarcerated people?
None of the current Medicare for All proposals under discussion explicitly addresses or eliminates the inmate exclusion policy. This is not only a missed opportunity to improve public health, reduce incarceration risk and save costs, but most importantly, to protect the rights of one of the most vulnerable populations in our country.