On July 2, the Centers for Medicare and Medicaid (CMS) more than doubled the number of states authorized to provide Medicaid coverage to people preparing for release from incarceration. Illinois, Kentucky, Oregon, Utah and Vermont all received waivers that will make substance use disorder medication Medicaid-eligible for people in their final weeks inside a prison, jail or youth correctional facility.
Nine states have now been approved since CMS unveiled the waiver in December 2022. In April 2023, when the only state that had received approval was California, CMS published guidance encouraging more states to apply. Washington was approved next, followed by Montana and most recently Massachusetts, which was approved June 25.
While proposals vary from state to state, the three core components are case management; medication for substance use disorders (SUD); and a one-month supply of all medications upon release.
At publication time, applications are pending in Arizona, Arkansas, Colorado, Connecticut, Hawaii, Maryland, New Jersey (albeit an extremely limited version), New Mexico, New York, North Carolina, Pennsylvania, Rhode Island and West Virginia. Ohio has not applied, but is looking into it.
None of the approved states have actually started offering any medications under Medicaid yet; California is expected to later in 2024. But even when they do, none will authorize coverage for people more than 90 days out from release; some will only authorize at 30 days from release.
Federal law prohibits Medicaid from reimbursing states and counties for health care provided to anyone in their custody. It’s known as the “Medicaid Inmate Exclusion Policy.” Once incarcerated—even if it’s just a weekend in the county jail—people enrolled in Medicaid lose coverage.
There’s no reason states can’t alleviate the bureaucratic hurdle of having to re-enroll in Medicaid.
Re-entering the community without health care coverage is associated with both recidivism and overdose, and there’s no reason states can’t alleviate the bureaucratic hurdle of having to re-enroll. CMS has made clear that it only intends to approve applications from states that suspend benefits during incarceration, rather than terminate them.
Uninterrupted Medicaid coverage will be especially impactful in states where a high proportion of the population is rapidly cycling in and out of county jails. Massachusetts, for instance, has more people estimated to be in the the county jail system than in the state prison system.
The pre-release window for reinstating Medicaid coverage, as supported by Congress, is 30 days. CMS will consider proposals that expand that window to 90 days, but not anything past 90 days. Of the nine states that have been approved for waivers, seven will use the full 90-day term. Kentucky will do 60 days, and Montana just 30.
While 90 days is more useful than 30, it’s not that much more useful. CMS repeatedly stresses that people who’ve been incarcerated experience high rates of chronic illness, including SUD, while carrying on with the premise that meaningful health care will be achieved by connecting people to services at the last minute, after years or decades with nothing.
In county jails, the average stay will be under 30 days anyway. Prisons are different.
This stems from the fundamental misconception that prisons and jails are health care providers, and that while someone is incarcerated any unmet needs sort of go into suspended animation until a few weeks before they’re set to be released.
CMS suggests people recently released from incarceration need access to SUD medication due to “greater access to illegal drugs,” “returning to settings and communities in which they were using drugs” and “encountering new or aggravated life stressors due to the obstacles to securing services and supports to address underlying needs.” All of these also apply during incarceration.
County jails, where the average stay will be under 30 days anyway, will gladly pass the bill to the feds. Prison administrators will continue trying to avoid the costs of health care by outsourcing it, downsizing it, ignoring it or simply delaying it indefinitely.
“Reentry Section 1115 Demonstration opportunity is not intended to shift current carceral health care costs to the Medicaid program,” the 2023 guidance stated. “This demonstration opportunity does not absolve carceral authorities of their constitutional obligation to ensure needed health care is furnished to inmates in their custody and is not intended as a means to transfer the financial burden of that obligation from a federal, state, or local carceral authority to the Medicaid program.”
Tobacco didn’t merit inclusion, but somehow alcohol did.
CMS defines treatment for SUD, in this context, as a combination of counseling and medications “for all types of SUD as clinically appropriate, not just [opioid use disorder].” However, the only other SUD mentioned in the entire guidance is a single reference to alcohol use disorder, for which the FDA has approved acamprosate and naltrexone.
The most widely used substance in prisons and jails by far is tobacco, and under prohibition it’s become more and more dangerous. There are no FDA-approved medications for methamphetamine or synthetic cannabinoids—the other mainstays of prison and jail drug supplies—but there are FDA-approved medications for smoking cessation, even if they’re less accessible than cheaper resources deemed only to be “appropriate for the protection of public health.” If none of this was enough for tobacco to merit inclusion while alcohol still got a mention, that may be because the latter’s conveniently treated with naltrexone, which is also approved for opioid use disorder.
Better known by brand name Vivitrol, naltrexone is the third of the FDA-approved opioid use disorder medications and the only one that is more likely to raise fatal overdose risk than reduce it. “Risk of opioid overdose” is listed as a side effect.” CMS knew that when it was writing about people at acutely high risk of overdose, and this was the strongest position it was willing to take:
“Patients on naltrexone who discontinue its use or relapse after a period of abstinence may have a reduced tolerance to opioids. Therefore, taking the same, or even lower doses of opioids than used in the past can cause life-threatening consequences. CMS encourages states to cover the full array of FDA-approved medications, including buprenorphine and methadone.”
Photograph via North Carolina General Assembly