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Change Medicaid Law to Improve Care for Those Incarcerated in County and City Jails

February 26, 2019

Literally, tens of millions of words have been written about the crisis of over-incarceration in county and city jails. Much of this dialogue focuses on those with behavioral health and intellectual/developmental disability conditions. The volume of this concern reflects the gravity of the crisis we face.

On any given night, about 730,000 persons are incarcerated in our county and city jails. Of this total, one quarter or even more have a mental health condition; half have a substance use or opioid condition; and a small but growing proportion have an intellectual/developmental disability condition. In some county and city jails, these groups collectively constitute more than 90% of the jail population.

To the growing credit of the behavioral health field, we now are developing new diversion procedures that stem the flow of persons with these conditions into our jails. Innovative, walk-in, urgent care centers, mobile crisis response teams, extensive and effective warm and hot lines, and rejuvenated care coordination are noteworthy examples.

The National Association of Counties (NACo) and the National Association of County Behavioral Health and Developmental Disability Directors (NACBHDD) each have played major roles in bringing about these changes. Today, more than 450 counties are enrolled in the NACo Stepping-Up Initiative. In these counties, the elected county boards have stepped forth to make a formal commitment to address the incarceration crisis and promote effective decarceration. NACBHDD has provided technical assistance, webinars, and a pilot program for small and medium-size counties to improve their behavioral healthcare programs for persons at risk of incarceration.

Although of equal importance, much less attention currently is given to the care persons with these conditions actually receive while incarcerated. Care in county and city jails can range from reasonable to virtually non-existent. Such a range in care quality simply is unacceptable.

Total financial responsibility for the behavioral and health care provided in jails falls upon counties and cities. Current federal law and regulation do not permit the use of federal Medicaid funds for anyone incarcerated in a cell.

NACBHDD has carried out focus group and pilot work on this issue. Our findings suggest strongly that inadequate county and city financial resources play a huge role in the lack of quality and effectiveness of the care people receive while in jail. Obviously, better care while in jail would portend better subsequent community adjustment and reduced recidivism.

A simple change to federal Medicaid law and policy would have a very salutary effect upon this problem: Extend Medicaid federal financial participation to pre-adjudicated persons who actually are incarcerated in a cell.

Let me develop the rationale for this action.

First and foremost, under the U.S. Constitution, all persons accused of a felony or misdemeanor are presumed to be innocent until adjudicated as guilty. Hence, when a pre-adjudicated person is incarcerated and denied access to the federal Medicaid program, while similar persons in the community do have access to that same benefit, then the federal government is violating that person’s civil rights.

Second, changes to federal Medicaid policy in the past two years have extended federal Medicaid benefits to all persons who are involved with the criminal justice system, but who actually are not incarcerated in a jail cell. This includes, among others, persons who are on probation or parole, persons who are transferred to a hospital or other healthcare facility, or persons on home detention. Some of these persons are pre-adjudicated. In such cases, these are specific instances in which pre-adjudicated persons already have access to federal Medicaid benefits.

Third, this era of prison reform seeks to decarcerate our jails and prisons in a planned manner. We must provide effective behavioral and health care to those in our county and city jails so that they can be returned to the community with improved health status. If we are able to do this, then we can have much greater assurance that these persons will be able to remain in the community without recidivating.

We urgently call upon our elected senators and representatives in Congress and those in the administration to change federal Medicaid law and policy to permit all pre-adjudicated persons, whether incarcerated or not, to receive federal Medicaid benefits.

We call upon each of you to become active and to support this endeavor.

The time has come to change federal Medicaid law!

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