The Patient Protection and Affordable Care Act (ACA) was recognized throughout the workshop as an unprecedented opportunity to expand health services to the population involved in the criminal justice system. Discussion was informed by both the background paper and additional papers by Regenstein and Christie-Maples (2012) and Phillips (2012). The implications of ACA were explored within the workshop, with discussion focusing on aspects of enrollment, workforce, quality of care, costs, and equity.
Many prison and jail inmates are poor, lack insurance, and are in need of health services. By federal law, inmates already enrolled in Medicaid are precluded from receiving benefits while incarcerated.1 That will not change under ACA, as currently written. As discussed in the background paper, in order to see a healthcare provider, inmates generally must submit sick call slips and often pay a fee. Such fees have been implemented in the federal system, in about 70 percent of state prisons, and an unknown number of jails. While the sums involved are usually small (e.g., $2 to $5), even this low cost has been a substantial deterrent for inmates making from 7¢ to 13¢ an hour in prison work assign-
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1 Note in some states, prisoners can be covered by Medicaid when they are hospitalized outside the prison.
ments (Rich, Dumont, and Allen, 2012). Some systems provide waivers for copayments, at least for some types of care such as communicable diseases and true emergency and follow-up care; copayments can also be waived for incarcerated people who are medically indigent. A 2003 Centers for Disease Control and Prevention report on a multistate outbreak of antibiotic-resistant staph infections in correctional facilities listed copays along with staff shortages as hindering access to timely care, contributing to the spread of the infection. Further, in most states, individuals entering incarceration already enrolled in Medicaid face disenrollment from the program, despite federal guidance that Medicaid coverage only be suspended, not terminated, as a result of incarceration (Phillips, 2012). With this pattern of disenrollment, almost 80 percent of those previously covered are without private or public insurance when released, exactly during the high-risk re-entry period when access to health services can be critical.
The ACA presents a major opportunity for millions of poor people to obtain insurance coverage. When fully enacted in 2014, ACA will raise Medicaid eligibility levels to 133 percent of the poverty line for all adults. States will receive a 100 percent federal subsidy to cover the expansion of Medicaid enrollment for the first three years and a tapering subsidy thereafter. A substantial percentage of those newly eligible for Medicaid will have some involvement with prisons or jails. The potential of the ACA to reach these individuals is great but also has limits. Some of these limits are formal, including legal restrictions on accessing benefits. Other possible barriers may include limits to the ability to facilitate the Medicaid enrollment process within correctional facilities.
As delineated in the paper by Regenstein and Christie-Maples (2012), jail inmates who are held pending disposition (estimated at from one-half to two-thirds of the jail population) may face formal restrictions to accessing benefits. The authors make the following distinctions among inmates pending disposition:
• Incarcerated individuals pending disposition are qualified to enroll in and receive services from health plans participating in state health insurance exchanges if they otherwise qualify for such coverage.
• Individuals pending dispositions who satisfy bail requirements and are released into the community will be eligible to enroll in Medicaid and receive services so long as they meet the program requirements.
• Individuals who are pending disposition and remain in jail because they are unable to meet bail conditions may enroll in Medicaid if they satisfy the program requirements but will be ineligible to receive Medicaid services.
Workshop participants discussed the value of eliminating the restriction imposed in the third category. Even if the restriction were maintained, simply ceasing to disenroll the incarcerated from Medicaid could have a substantial impact on continuity of care for them upon release to society.
Further discussion addressed the imperative of facilitating enrollment, particularly among the large and fluid population moving through jails. Jails are viewed as a particularly valuable point of contact for both inmates and their families. Jails might also be able to facilitate the process of enrollment, which can be cumbersome and even overwhelming for a low-resource population. Some inmates and their families have been hampered by low literacy as they attempt to complete paperwork. They often lack essential documentation (government-issued identification, recent paystubs, or bank statements). Homelessness or unstable housing can interfere with communication from the Social Security Administration. Jails may also be in contact with persons who would otherwise avoid interacting with officials—due, for example, to unpaid child support or immigration status. If jail staff made an effort to enroll inmates, this could make a substantial difference to realizing the potential of ACA to provide access to healthcare for uninsured individuals and open reimbursement streams for the localities providing care to inmates, arguably improving equity and health while lowering both health costs and recidivism. This also applies to visiting family members who may be just as vulnerable and underinsured and could benefit from enrollment into health insurance plans under the ACA as well. As Steven Rosenberg affirmed, “Getting people enrolled is the first issue in terms of leveraging the implications of ACA.”
The workshop also explored implications of the ACA for expanding, improving, and funding the health-related workforce interacting with inmates. Discussion reflected changes in the workforce needed in order to address the needs of inmates. This included not only professional medical care providers, but a range of other actors, such as skilled screeners to work in prisons and jails to screen inmates at intake for mental illness and substance abuse, dementia and age-related disease and disabilities, reproductive health and sexually transmitted infections, health and insurance status of family members, and a range of other issues. For meeting
the needs of those on probation and parole, correctional staff trained in cognitive behavioral management and motivational techniques was also discussed. The handling of release and re-entry would also entail a capable workforce to improve continuity of care, ongoing medication and treatment, and enrollment of families in health plans or Medicaid. In particular, this might include community health workers with incarceration experience to help those recently released navigate the complexities of accessing social services and manage their healthcare in the risky period of re-entry. If these services were provided to those newly enrolled under the ACA, would any of these screeners, corrections staff, or community health workers be able to bill their services to Medicaid? Several participants explicitly wondered whether expansion of coverage under ACA would make this possible. If so, Osher commented, “We may have funding streams available within the community that can pick up the slack that historically has increased the budgetary pressure on our correction environments.”
QUALITY OF CARE AND ACCOUNTABILITY
The ACA could also conceivably have an impact on the quality of care that medical professionals provide to inmates, particularly if doctors are encouraged or required to participate in accountable care organizations. At present, several workshop participants observed, doctors providing care within correctional facilities are often isolated, practicing in “islands” separated from their peers providing care in the community. As such, they become susceptible to the “culture of fear and cynicism” that was identified as characterizing many correctional environments. Further, their professionalism is unsupported and may atrophy. If practicing outside of health plans or Medicaid, they may also be missed by metrics used to measure and evaluate performance.
All of these might be addressed as the ACA is implemented, with more inmates participating in health plans and Medicaid. This could result in individuals seeing their regular healthcare providers, whether inside or outside correctional facilities. Scott Allen referred to this continuity as the “ideal.” Josiah Rich (Department of Medicine and Epidemiology, Warren Alpert Medical School of Brown University, and the Center for Prisoner Health and Human Rights at the Miriam Hospital Immunology Center,) concurred from his own experience providing care, noting that “just seeing a familiar face” improves the experience for both doctor and patient, bolstering trust.
Furthermore, if seeing patients enrolled in Medicaid (whether post-release, on parole or probation, or even during incarceration if the restrictions are changed), then doctors would become “part of the metric,”
Allen explained, and healthcare provided in correctional facilities would no longer be “carved out” of performance and outcome measures. This is also the case for inmates on health plans. Rosenberg observed, “By maintaining coverage for individuals within their health plans while they are within a correctional environment, the health plan’s measurements will include the outcome measures.” This could help improve the quality of care provided to inmates. Robert Greifinger suggested using the ACA as “leverage to encourage the participation of correctional health professionals in accountable care organizations, which will increase their contact with community healthcare folks.” Allen affirmed the potential for improved quality of care when healthcare providers within correctional facilities are “answerable to the community standard.”
How much of the potential impact of the ACA is realized will depend in part on how states respond to the law and what initiatives they take to implement it, as well as on the strategies and practices of private health plans. States have recently decided whether to create their own health exchanges (the formal structure through which residents will choose among available plans), coordinate with a health exchange established by the federal government, or opt out and allow residents to utilize the federal health exchange. State choices may influence the effort they put into enrolling inmates, coordinating with Medicaid to make benefits available, and incentivizing health plans to provide care to this population.
In Rich’s view, “You can have all the Medicaid you want, but if there isn’t a doctor who will see you, or if insurance plans are running away from you,” then what good is such coverage? Rosenberg expressed the concern that health plans would shun the inmate population as “a tough reach,” and suggested that health plans’ “general attitude is ‘we don’t know anything about caring for this population, and where do we hide?’” The potential for cost savings may help motivate states to implement ACA fully and encourage the participation of health plans.
COST SHIFTS, SAVINGS, AND RECIDIVISM
Greifinger noted that as the federal government will fully subsidize states for the cost of new Medicaid enrollees for the first three years, this will constitute a considerable cost shift away from state and local governments to the federal government. Although incarcerated individuals will still not be eligible to receive Medicaid benefits as the law is currently written, many others involved in the correctional system—including those pending disposition in the community, those on probation and parole, on
home confinement, or released, and the families of all these individuals— could access benefits. “That’s one of the many reasons I think that state and county criminal justice policy people should be paying attention,” Greifinger observed. “There will be a favorable shift from the perspective of the states and the counties.”
Rosenberg shared the results of research conducted in the state of Washington (which expends some of its own general fund dollars to provide substance abuse services) that indicates that treating substance abuse results in a decline in arrest rates of between 16 and 33 percent. The overall cost of healthcare to the impacted population also declined. Rosenberg asserted that while the full fiscal and correctional impact of the ACA cannot be predicted, this research suggests if its enactment makes more funds available for substance abuse treatment, the impact could be substantial on both costs and recidivism.
By improving access to healthcare for those transitioning out of the criminal justice system, might the ACA also help redress some of the racial and socioeconomic disparities in health and healthcare? When this question was posed, Rosenberg offered a pessimistic answer for the near term. In his assessment, because states face so many challenges in implementing the new law, actions that will improve care specifically for inmates will probably be a low priority. “From where we sit,” Rosenberg offered, “this is a promise that ACA could fulfill,” but based on his monitoring of state actions thus far, “we’re not seeing it yet.”
Rosenberg did, however, suggest a provocative route to eventually fulfilling that promise. In prisons, he noted, “Currently, if I’m an offender the sole right I have to care is covered by my constitutional right under the Eighth Amendment as interpreted by the Supreme Court in Estelle v. Gamble. On January 1, 2014, if I’m a member of an exchange, I have another right, I have a contractual right between me and the exchange for care. All of a sudden, a different set of rights enters into this.” Rosenberg foresees considerable effort on the part of lawyers to determine just how such rights will be exercised. Debates will no doubt address whether the current restriction against receiving Medicaid benefits while incarcerated is maintained, and may also be shaped by whether healthcare providers are employees of the state or of private health plans. Foreseeing an “interesting dynamic,” Rosenberg suggested that “the implicit contractual right of the ACA may create some significant changes; we just don’t know what they’re going to look like yet.”
