The United States leads the world in incarcerating its own citizens. Although we have only five percent of the world’s population, approximately 25 percent of all incarcerated people in the world are in the U.S. We lock people up at a higher rate than any other country – higher than Russia, higher than China, higher than Zimbabwe, Syria, and Saudi Arabia combined. The U.S. incarcerates more people for drug crimes than the entire European Union locks up for everything – and they have 100 million more people than we do. Somewhere around one in three Americans have an arrest record; for African Americans the number is closer to one in two.
This system of mass incarceration is, needless to say, bad for health, particularly for those who were already vulnerable by virtue of their age, sex, race, gender or health needs. The negative health effects of prison extend beyond the time one spends behind bars, ranging from a high risk of overdose shortly after leaving prison to a lifetime of psychological trauma.
Compounding the problem, people who leave confinement are often not connected with the health services they need and to which they’re entitled. To attempt to reduce this lack of access to health care, the Centers for Medicare and Medicaid Services (CMS) recently released two documents - a letter of guidance to state health officials clarifying when people can access Medicaid services and a FAQ regarding the effect of incarceration on eligibility for federal-facilitated Health Insurance Marketplace plans.
Under longstanding federal law, Medicaid cannot pay for services provided to any individual who is “an inmate of a public institution.” However, there have long been misconceptions and lack of uncertainty about exactly what that prohibition means. Many states simply terminate Medicaid coverage when people enter prison or jail, forcing them to reapply once they’re released. Additionally, states were sometimes unclear as to whether Medicaid payment was available for people under correctional control but not in jail or prison. The CMS letter helps provide guidance on these issues.
For example, the letter makes clear that people on parole or community release are not “inmates” under the terms of the law, and that people in halfway houses and similar facilities are eligible for Medicaid services so long as they have “freedom of movement and association.” People serving home confinement sentences are similarly eligible, as are people who are voluntarily confined.
The FAQ provides similar clarifications. While individuals are not eligible to enroll in Qualified Health Plans (QHPs) through the Marketplace if they are incarcerated (other than incarceration pending the disposition of charges), the FAQ clarifies that a person is not deemed to be “incarcerated” if he or she has not been convicted, has been convicted but not sentenced to confinement, or has been sentenced to confinement in such a way that the government is not responsible for providing medical care (such as house arrest or a halfway house).
Many states have been attempting to connect people leaving confinement with services to help them be healthier on the outside. For example, Maryland has recently requested federal permission to create a streamlined process to enroll nearly all recently released inmates in Medicaid. This coverage would last for 60 days, during which time the individual can complete the full enrollment process.
While we are hopefully moving closer to a world in which fewer of our fellow citizens are incarcerated, in the meantime actions like these will at least help ease their transition back into society.
This post was developed by Corey Davis, Deputy Director, Network for Public Health Law – Southeastern Region at the National Health Law Program.
The Network for Public Health Law provides information and technical assistance on issues related to public health. The legal information and assistance provided in this post does not constitute legal advice or legal representation. For legal advice, readers should consult a lawyer in their state.
Support for the Network is provided by the Robert Wood Johnson Foundation (RWJF). The views expressed in this post do not necessarily represent the views of, and should not be attributed to, RWJF.