The Inmate Exception and Reform of Correctional Health Care

When Congress authorized the creation of Medicare and Medicaid in 1965, it prohibited Medicare or Medicaid from paying for health care in the nation’s jails and prisons.¹ This explicit exclusion, commonly referred to as the “inmate exception,” has contributed to a significantly underresourced correctional health care system that is isolated from mainstream medicine and shielded from critical accreditation and external quality oversight mandates. This legislation is inadvertently fueling the opioid crisis and driving up costs to society. Repeal of the inmate exception can improve correctional health care, boost community health and safety, and reduce wasteful public spending.

ADVERSE EFFECTS OF THE INMATE EXCEPTION

The inmate exception obstructs achievement of a core goal of criminal justice: rehabilitation. Jails and prisons function as de facto treatment facilities for persons with substance use and mental health disorders, with more than half of the inmate population meeting criteria for these disorders.² The huge influx of jail and prison inmates with complex health care needs has contributed to correctional health care costs becoming the fastest-growing line in many state budgets.³ Further increases in state spending for correctional health care are politically fraught. Without federal support, local jails and state prisons often lack the resources to meaningfully satisfy Eighth Amendment constitutional protections requiring adequate treatment for inmates or even to meet community standards for care.

The Social Security Act—legislation authorizing Medicaid and Medicare programs—also mandates minimum standards for participating health care organizations. These standards are typically ensured through organizational accreditation. The inmate exception exempts correctional health care from this requirement, resulting in poor health care oversight.

Inmates suffer the consequences. Suicide accounts for a third of jail deaths.⁴ Alcohol and drug intoxication is a leading cause of death following suicide and heart disease.⁴ Despite obvious need, evidence-based treatment of opioid use disorders within correctional settings is almost universally lacking, contravening national and international norms and standards.^5,6 Medication treatments for addiction are abruptly stopped following arrest. Few facilities employ adequate staff certified in addiction treatment to treat huge caseloads. Few inmates receive guideline-concordant care for withdrawal symptoms, much less for underlying substance use or mental health disorder. Access to needed addiction and mental health treatment is also crucial to successful reentry and the inmates’ long-term health outcomes. Inmates are routinely released to the community without links to treatment and die at strikingly high rates in the weeks following prison release.⁶

The inmate exception has isolated correctional health care (including professionals and staff) from the larger health care community. Without mandatory accreditation or incentives for improving performance or incentives for improving postrelease outcomes, jails and prisons remain shielded from broader regulatory and norm-setting forces. Arrest and detainment entail interruption in insurance coverage, disruption in expensive treatments for chronic mental health and medical conditions (e.g., HCV), poor transitions in care, and limited exchange of health care information. This isolation from the rest of the health care system generates wasteful costs through vicious cycles of postrelease hospitalizations, duplication of services, drug resistance, HIV and HCV contagion from inadequate treatment, crime, rearrest, costly reincarcarceration, and avoidable deaths. Most importantly, the inmate exception impedes national and state plans to address the opioid epidemic by engaging inmates in treatment and linking them to programs on release.

Rather than offer inmates effective, evidence-based medication treatment, correctional policies enforce abrupt discontinuation of current buprenorphine or methadone use. Rather than preventing deaths from opioid overdose, jails and prisons contribute to deaths when they fail to adequately treat opioid use disorder prerelease.⁶ Inmates, families, and society bear the cost.

A GRAND BARGAIN

The investment that would accompany repealing the inmate exception would be a grand bargain for correctional health care, public health, safety, and taxpayers. Such a repeal, long advocated by the American Bar Association, would permit jails and prisons to enroll (or maintain) inmates in available insurance and bill for these services. This would result in a substantial infusion of funding for correctional health care. Health care savings from Medicaid payments could be used to offset costs for inmates not eligible for Medicaid, thus providing sufficient resources to include evidence-based treatment of substance use and mental health disorders and prerelease care coordination for chronic medical and behavioral conditions that enables successful reentry and links to community-based treatment programs.

Legislation also should ensure that correctional facilities become accountable for the health care they provide beyond the constitutional standard of “deliberate indifferences to serious medical need”—a standard secured through years of Eighth Amendment litigation. This would better align incentives for correctional health care with those for population health in the community. Federal payment would shift accreditation from voluntary to mandatory, similar to what hospitals face. There would be clear quality standards for medical, addiction, and mental health care. Standards would address care continuity on entry, exchange of information, clinical practice, prerelease care coordination, and other steps to align correctional health care incentives with inmate health and the public’s best interest. Legislation should mandate public reporting of inmate health care quality based on meaningful inmate outcomes, including recidivism.

MITIGATION STRATEGIES IN THE ABSENCE OF REPEAL

Despite strong bipartisan support for criminal justice reform and inmates’ constitutionally protected right to health care, repeal of the inmate exception is politically fraught. Current uncertainty about the future of Medicaid and expansion provisions of the Affordable Care Act creates a major political hurdle to using federal funds to pay for health care for inmates.

In the interim, the following commonsense incremental reforms can mitigate the harms from the inmate exception. First, wider use of the Sequential Intercept Model that has been promulgated by the Substance Abuse and Mental Health Services Administration could reduce the inmate population through diversion of nonviolent persons with addiction and mental illness during each step of the criminal justice process (e.g., initial 911 call, arrival of police, arrest, arraignment, and diversion to drug or mental health court). This model, if scaled, could divert a substantial population with addiction and mental health disorders to community-based treatment programs.

Second, states should enact policies that suspend rather than terminate Medicaid for inmates. This would facilitate continuous treatment by permitting immediate reactivation of insurance on inmate release, facilitating immediate linkage to community treatment programs.

Third, states should invest in prerelease care coordination. Toward this end, Centers for Medicare & Medicaid Services should encourage and approve state Medicaid waivers to support prerelease care coordination.⁷ These waivers permit billing for care during the critical 30-day period before release. A waiver by New York State would fund case management services for inmates with multiple chronic conditions, HIV, or serious mental illness and pay for critical medications to minimize postrelease gaps in treatment.

Fourth, states should support community-based programs that conduct jail and prison in-reach and ensure transition to community-based treatment programs including those that address basic needs, such as housing, food, transportation, education, job training, and employment.

Fifth, states should allow inmates to continue medication treatment of addiction while incarcerated. Untreated inmates should be able to begin medications while incarcerated and be connected to treatment on release.

Last, states and counties should require accreditation of health care services within their jails and prisons. Such accreditation should include public reporting on rates of successful reentry and reductions in recidivism.

CONCLUSIONS

The lack of adequate funding for treatment, especially for substance use disorder and mental illness, has contributed to a health crisis within correctional facilities and for the communities inmates return to. Congressional repeal of the inmate exception to Medicare and Medicaid or other mitigation measures to expand and coordinate treatment for inmates are essential.