People experiencing incarceration are the only population for whom the Constitution explicitly recognizes the right to healthcare.^[1] Still, healthcare in carceral institutions remains abysmal, operating as both a tool and result of mass incarceration and inequality more generally. Lack of care standards and oversight, insufficient funding, and failure to coordinate care across settings constitute central impediments to care in carceral institutions. Though the relationship between health disparities and mass incarceration stems from centuries of overt racism and disinvestment,^[2] the Medicaid Inmate Exclusion Policy has laid the foundation for a system of carceral healthcare that disregards the health and humanity of people experiencing incarceration, returning citizens, and their families and communities.

A seemingly benign provision of the 1965 Medicare and Medicaid Act, the Medicaid Inmate Exclusion Policy (MIEP) prohibits carceral institutions from billing Medicaid for services rendered while a person is incarcerated.^[3] The MIEP is predicated on the idea that carceral systems are traditionally a state concern, but the policy stands in contradiction to the 1976 ruling in Estelle v. Gamble finding failures of carceral healthcare to be a federal matter.^[4] Repealing the MIEP is one way the federal government can take a more active role in undoing the systems of mass incarceration it has helped create and build healthier, safer communities.^[5]

Medicaid is a public health insurance program enacted by the federal government, operated by the individual states, and funded through a combination of state and federal money.^[6] By matching a portion of state Medicaid expenditures, the federal government enables states to offer more comprehensive coverage to more people than may be possible without federal assistance.[7] States spend billions on care in carceral settings, and the costs are rising,^[8] in large part because of privatization and outsourcing to for-profit companies.^[9] However, the MIEP prevents states and localities from offsetting these costs with the federal assistance provided for all other Medicaid-enrolled people. Moreover, carceral healthcare providers are insulated from Medicaid’s negotiating power, which can reduce healthcare costs by lowering beneficiary rates.^[10] The MIEP also prevents carceral institutions from accessing the financial incentives offered by the Centers for Medicare & Medicaid (CMS) to facilities that meet specific quality benchmarks.^[11] Through its payment and coverage schemes, Medicaid encourages using cost-effective services such as preventative care.^[12] Though preventative care is especially cost-effective in carceral settings,^[13] few carceral institutions have the funds to deliver such care consistently (if ever). Repealing the MIEP will chart a path for more funding to preventative care programs in carceral institutions, resulting in better health outcomes and long-term cost savings.^[14]

Along with increased funding for carceral healthcare, repealing the MIEP will standardize quality measures across participating institutions. CMS sets quality standards to which institutions accessing federal funds must adhere.^[15] Because the MIEP prohibits carceral institutions from billing Medicaid for care in carceral institutions, jails and prisons have no obligation to meet these quality standards. While the National Commission on Correctional Health Care sets accreditation standards for carceral institutions, compliance with these standards is optional and only 17% of jails and prisons nationwide are accredited.^[16] By contrast, facilities like nursing homes must meet CMS’ quality and safety standards to receive payment for services;^[17] because Medicare and Medicaid payments make up most of nursing homes’ revenue, homes that do not meet CMS standards are unlikely to remain financially viable.^[18] Without the MIEP, carceral facilities would be similarly required to improve care.

Returning citizens must contend with the often-prohibitive administrative hurdles stemming from the MIEP. Most states suspend rather than terminate Medicaid coverage for people experiencing incarceration. Still, both suspension and termination require returning citizens to undergo the onerous process of reinstating benefits, often with little or no assistance.^[19] As a result, even returning citizens who were enrolled in Medicaid at the time of their incarceration risk facing the already perilous transition period without healthcare coverage.^[20] Because returning citizens have high rates of chronic health conditions, coverage gaps that impede access to care are deadly.^[21] Confronted with a lack of assistance and resources, direct bias, and disqualification from social programs, returning citizens are twelve times more likely than the general population to die in the first two weeks of re-entry.^[22]

Access to healthcare also reduces recidivism.^[23] Our current criminal legal system is plagued by poor care during periods of incarceration, followed by, at best, perfunctory support for returning citizens seeking to establish care. Repealing the MIEP would remove barriers to care inside carceral institutions and eliminate coverage gaps during the transition back to the community. Returning citizens able to maintain access to physical and mental healthcare are better positioned to locate employment, housing, and support networks.^[24] Specifically, access to Medicaid led to a 16 percent reduction in recidivism for returning citizens convicted of multiple violent offenses between 2010 and 2016 in Medicaid expansion states.^[25]

The benefits of repealing the MIEP will also extend to people outside of the criminal legal system. The COVID-19 pandemic demonstrated how quickly infectious diseases spread inside carceral institutions and the ease with which illness can be carried into the surrounding community by employees and visitors.^[26] Conditions inside carceral institutions^[27] have facilitated the proliferation of infectious diseases seen as all-but-eradicated among the general public, such as tuberculosis and MRSA.^[28] In an alarming trend, the inability to access consistent treatment in carceral institutions is fostering the emergence of drug-resistant strains of infectious diseases.^[29] Although the MIEP ostensibly applies to specifically carceral healthcare, its consequences are not confined to the justice-involved population.

Representative Kuster (D-NH) and Senator Booker (D-NJ) have introduced companion legislation in the House and Senate to repeal the MIEP, titled the Humane Correctional Health Care Act.^[30] The bill’s supporters recognize that allowing people to retain access to their Medicaid benefits during incarceration will allow for better care coordination and streamlined federal funding for an overall reduction in healthcare costs and improvements in healthcare outcomes for people both inside and outside of carceral institutions.

 

 

^[1] See Estelle v. Gamble, 429 U.S. 97, 104 (1976) (holding that the Eighth Amendment imposes on the government a duty to provide care to people experiencing incarceration).

^[2] For example, disenfranchisement of people convicted of a crime means that political officials have little incentive to improve conditions in carceral institutions. See Disenfranchisement Laws, Brennan Center for Justice, https://www.brennancenter.org/issues/ensure-every-american-can-vote/voting-rights-restoration/disenfranchisement-laws (last visited Jan. 1, 2024). Many facilities also condition access to care for people experiencing incarceration on patients’ ability to make copayments, a system that often costs more to administer than it generates. See Susan Reverby. Can There be Acceptable Prison Health Care? Looking Back on the 1970s, 134 Public Health Reports 89, 91 (2019), https://journals.sagepub.com/doi/10.1177/0033354918805985#:~:text=By%20the%20early%201970s%2C%20prison,services%2C%20would%20make%20a%20difference.

^[3] 42 U.S.C. § 1396(d).

^[4] See Estelle, 429 U.S. at 103.

^[5] See Mira Edmonds, The Reincorporation of Prisoners into the Body Politic: Eliminating the Medicaid Inmate Exclusion Policy, 28 Geo. J. on Poverty L. & Pol’y 279, 285 (Spring 2021) (arguing that the federal government abrogated its own rationale that federal assistance for carceral healthcare imposes on state concerns by using federal money to fund state-level criminal legal system projects foundational to mass incarceration).

^[6] See Medicaid 101, The Medicaid and CHIP Payment and Access Commission, https://www.macpac.gov/medicaid-101/ (last visited 31 Dec. 2023).

[7] See Matching rates, Medicaid and CHIP Payment and Access Commission, https://www.macpac.gov/subtopic/matching-rates/ (last visited Jan. 6, 2023).

^[8] See Alexandra Gates et al., Health Coverage and Care for the Adult Criminal Justice-Involved Population, KFF, Sept. 5, 2014, at  3-4, https://www.kff.org/uninsured/issue-brief/health-coverage-and-care-for-the-adult-criminal-justice-involved-population/.

^[9] See Reverby, supra note 2, at 90.

^[10] See The State Health Care Spending Project, Managing Prison Health Care Spending 18 (October 2013), https://www.pewtrusts.org/~/media/legacy/uploadedfiles/pcs_assets/2014/pctcorrectionshealthcarebrief050814pdf.pdf.

^[11] See CMS Quality Reporting and Value-Based Programs & Initiatives, CMS.gov Measures Management System, https://mmshub.cms.gov/about-quality/quality-at-CMS/quality-programs (last visited Dec. 31, 2023).

^[12] See Alexandra Gates et al., Coverage of Preventative Services for Adults in Medicaid, KFF (Nov. 13, 2014), https://www.kff.org/medicaid/issue-brief/coverage-of-preventive-services-for-adults-in-medicaid/view/print/.

^[13] See Sabeena Bali, Note, The Economic Advantage of Preventative Health Care in Prisons, 453 Santa Clara L. Rev. 453, 471 (2017), https://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=2843&context=lawreview.

^[14] If the MIEP is repealed, Medicaid expansion states could save $4.7 billion each year. See Sarah Wang, Prison Health Care is Broken Under the Medicaid Inmate Exclusion Policy, The Harvard Law Petrie-Flom Center (Jan. 26, 2022), https://blog.petrieflom.law.harvard.edu/2022/01/26/medicaid-inmate-exclusion-policy/#:~:text=The%20MIEP%2C%20established%20in%201965,those%20convicted%20or%20awaiting%20trial.

^[15] See Quality measures used in Medicaid and CHIP, The Medicaid and CHIP Payment and Access Commission, https://www.macpac.gov/subtopic/quality-measures-used-in-medicaid/#:~:text=Sources%20of%20quality%20of%20care,supports%20(MLTSS)%20measure%20set (last visited Jan. 1, 2024).

^[16] See Sam McCann, Health Care Behind Bars: Missed Appointments, No Standards, and High Costs, Vera Institute for Justice (June 29, 2022), https://www.vera.org/news/health-care-behind-bars-missed-appointments-no-standards-and-high-costs#:~:text=Get%20Involved-,Health%20Care%20Behind%20Bars%3A%20Missed%20Appointments,No%20Standards%2C%20and%20High%20Costs&text=Each%20year%20that%20someone%20spends,would%20be%20five%20years%20higher.

^[17] See Yue Li et al., State Regulatory Enforcement and Nursing Home Termination from the Medicare and Medicaid Programs, 45 HSR: Health Services Research 1796, 1797 (2010), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2976829/.

^[18] See id. at 1796.

^[19] See Gates, supra note 7, at 4. See generally Suzanne Wikle et al., States Can Reduce Medicaid’s Administrative Burdens to Advance Health and Racial Equity, Center on Budget and Policy Priorities (2022), https://www.cbpp.org/research/health/states-can-reduce-medicaids-administrative-burdens-to-advance-health-and-racial.

^[20] See National Association of Counties and National Sheriffs’ Association, NACo-NSA Joint Task Force Report Addressing the Federal Medicaid Inmate Exclusion Policy 27 (2020), https://www.naco.org/resources/featured/naco-nsa-joint-task-force-report-addressing-federal-medicaid-inmate-exclusion-policy.

^[21] 80% of returning citizens have chronic medical, psychiatric, or substance use disorders, and one-half of male and two-thirds of female returning citizens have at least one chronic physical health condition necessitating long-term care management. See U.S. Department of Health and Human Services Office of the Assistant Secretary for Planning and Evaluation, Health Care Transitions for Individuals Returning to the Community from a Public Institution: Promising Practices Identified by the Medicaid Reentry Stakeholder Group, A Report to Congress 4 (2023), https://aspe.hhs.gov/sites/default/files/documents/d48e8a9fdd499029542f0a30aa78bfd1/health-care-reentry-transitions.pdf. In Illinois, over 80% of returning citizens had no health insurance at 16 months post-release, illustrating the difficulties with establishing or re-establishing coverage. See Gates, supra note 7, at 3.

^[22] See Evelyn Malave, Note, Prison Health Care After the Affordable Care Act: Envisioning an End to the Policy of Neglect, 89 N.Y.U. L. Rev. 700, 708 (2014). See also Wilson Center for Science and Justice at Duke Law, Ensuring Access to Medicaid During and After Incarceration: Key Policy Considerations in the Wake of Medicaid Expansion in North Carolina 7 (2023), https://wcsj.law.duke.edu/wp-content/uploads/2023/05/medicaid-expansion-brief-5-8-23.pdf.

^[23] See, e.g., Nathan W. Link et al., Consequences of Mental and Physical Health for Reentry and Recidivism: Toward a Health-Based Model of Desistance, 57 Criminology 544, 567 (Apr. 4, 2019), https://onlinelibrary.wiley.com/doi/full/10.1111/1745-9125.12213.

^[24] See id.

^[25] Erkmen G. Aslim et al., The Effect of Public Insurance on Criminal Recidivism, 41 Journal of Policy Analysis and Management 45, 86 (2022), https://onlinelibrary.wiley.com/doi/abs/10.1002/pam.22345.

^[26] Impact of COVID-19 on State and Federal Prisons, March 2020–February 2021, Bureau of Justice Statistics (Aug. 25, 2022), https://bjs.ojp.gov/press-release/impact-covid-19-state-and-federal-prisons-march-2020-february-2021#:~:text=Staff%20in%20state%20 correctional%20 facilities,March%202020%20to%20February%202021.

^[27] In particular, poor ventilation, leaky pipes, broken plumbing, overcrowding, and unsanitary conditions all contribute to conditions that worsen the spread of infectious diseases. See Lauren Brinkley-Rubinstein, Incarceration as a Catalyst for Worsening Health, Health and Justice 1, 7 (2013), https://healthandjusticejournal.biomedcentral.com/articles/10.1186/2194-7899-1-3.

^[28] See Bali, supra note 12, at 460.

^[29] See Malave, supra note 17, at 710.

^[30] Humane Correctional Health Care Act, H.R. 3860, 118th Cong. (2023). Humane Correctional Health Care Act, S. 1820, 118th Cong. (2023).