Transitioning from incarceration to the community without services and supports is medically risky, especially for people who are incarcerated with Substance Use Disorders (SUD). Studies have found that the mortality rate for people recently released from prison is twelve times higher than the general population. This troubling trend is driven largely by drug overdoses, which are the primary post-incarceration cause of death. Over half of incarcerated individuals report frequent drug use or intoxication prior to entering a jail or prison. Following release, people with SUD risk returning to substance use, which can lead to an array of life-threatening issues, including substance use.
Under current federal law, the “Inmate Exclusion” prohibits the use of Medicaid funds for services provided to people who are incarcerated. Nonetheless, having Medicaid coverage at the time of release can be critical to saving lives by ensuring formerly incarcerated people can enroll in structured drug treatment programs paid for through Medicaid. These programs, among other supports, are “protective factors” that can keep someone safe during the especially dangerous period immediately after release. Here, time is of the essence, and delays in having Medicaid coverage at the time of release may lead to poor health and recidivism. Inmates who do not have Medicaid at the time of release might, in the meantime, overdose, have their parole revoked after relapsing, or suffer from preventable mental health issues.
Having Medicaid available when leaving prison or jail gives people a better chance at positive health outcomes and success staying out of the criminal justice system. Therefore, all states should suspend, rather than terminate, Medicaid for people who are incarcerated, allowing immediate access to coverage upon release..
Recent Juvenile Justice Legislation Provides a Model for Adult Reforms
Two federal laws passed in 2018 can serve as models for policies to enable Medicaid coverage and health care access after an individual is released from incarceration. These reforms provide a model which could be implemented to support all formerly incarcerated individuals upon release. First, the SUPPORT Act of 2018 prevents gaps in coverage and by requiring suspension (rather than termination) of Medicaid for juveniles who were eligible when incarcerated. Further, the Act requires juvenile justice facilities to “conduct a redetermination of eligibility” prior to release without requiring submission of a new application. In addition, the SUPPORT Act requires states to process applications for eligible juveniles who apply for Medicaid while incarcerated in order to determine their eligibility prior to release. These processes guarantee that eligible children will be enrolled upon release, reducing costly and time-consuming procedures which could delay treatment. The SUPPORT Act helps ensure Medicaid benefits will be maintained than where benefits are terminated. Several states have already adopted a policy of maintaining Medicaid enrollment for inmates during incarceration, and conduct eligibility redeterminations or care coordination for all adult inmates before release.
In addition, the Juvenile Justice Reform Act of 2018 provides federal funds to states for a number of juvenile justice reforms, including reentry services. In order to receive grants from the federal Juvenile Justice and Delinquency Prevention Office (OJJDP), the law adds the requirement that states must establish plans for the community reentry of incarcerated youth. These plans must include evidence-based methods for substance abuse screening and parameters for SUD treatment while in custody. The Act also requires states to describe to OJJDP how reentry services will include creation of written care plans that lays out holistic needs, anticipated treatment, and plans for support upon release. The states must create evaluation procedures to ensure that the system is effective and ensure compliance with the actions specified by the Act or their funding will be docked.
These federal reforms that target children and youth help provide needed Medicaid coverage and treatment for children and youth post-release, and also provide critical information community-based providers will need in order to quickly address known health and behavioral health issues. Adopting the models from juvenile justice bills would be an important step to improve health outcomes, especially for those living with SUD, and policymakers should use these recent reforms as a model.
Recommendations for the Courts and Policymakers
States should adopt procedures to ensure that individuals leaving prison or jail are not left on their own to get Medicaid coverage and find follow-up treatment post-release. States can play a role in reducing the high rate of post-incarceration overdose by adopting reforms for adults modeled after the federal laws described above.
First, states should suspend, and not terminate Medicaid for all individuals entering institutions with Medicaid during the entire period of incarceration. This will avoid a burdensome post-release need to re-enroll in coverage in order to obtain life saving Medicaid covered services. Second, states should develop procedures to enroll inmates in Medicaid prior to release, particularly those who have never enrolled in Medicaid, in order to expand the availability of Medicaid to obtain care post-release. Finally, state correction agencies should collaborate with local agencies and Medicaid providers to create a plan of care for each inmate prior to release that connects people to community based services after release, including through “reach-in” services like care coordination or appointment linkage close to the time of release. Upon release, any treatment plans should be part of an electronic health record to be communicated to providers in the community.
These policies would enable jails and prisons to engage in care coordination as a key strategy to reduce the high rates of post-incarceration relapse, overdose, illness, and death. The federal government should support those connections for all inmates by declaring Medicaid suspension a best practice in corrections, and offering technical assistance to ensure care coordination is part of every inmate discharge planning process. Rapid access to health care following incarceration will save lives, largely by addressing the needs of individuals with SUD.
* Andrew Hayes was a Spring 2021 extern in NHeLP’s North Carolina office. He received his J.D. from Duke Law in May 2021, along with a Certificate in Public Interest and Public Service Law.