When I was young and my aunt was having a mental health crisis, it did not seem unusual that the first responders were from the county sheriff’s office. The deputies knew her and knew my uncle, and they’d search for her together when she went missing in the rural Ohio town where I grew up.
In college, I lived near the J.C. Napier housing project in Nashville, Tenn., and I saw a neighbor have a vastly different experience with the police while exhibiting symptoms similar to my aunt’s. While my family was treated with care and respect, my neighbor — a Black woman — was wrestled to the ground and treated as though she were a violent person rather than someone who needed help.
The truth is that neither my aunt nor my neighbor should have required intervention from the justice system, but due to the country’s failure to build a robust infrastructure for those with mental health needs, we have left far too many aspects of crisis response in the hands of policing agencies. This dynamic exacerbates the racial and economic disparities that exist in both our health and justice systems.
This is particularly evident in how mental health care is managed during incarceration.
People Are Not Given the Care They Need While Incarcerated
While my aunt has never been to jail, I can almost assure you my neighbor was arrested and booked into the Davidson County Jail. It has become cliché to call county jails the “de facto mental health hospitals” in this country, but the truth is that 44% of people in county jails have been diagnosed with a mental health condition. And this number still does not account for the number of those with undiagnosed mental illness. Jails are, much to the chagrin of health and justice stakeholders, a part of our behavioral health response in this country.
Even though jails function as a hidden part of our health systems, they are not given same level of oversight or held to the same quality of care that we expect from health providers. This is because of the “inmate exclusion rule” that is found in the Social Security Act. The inmate exclusion bans otherwise-eligible Medicaid beneficiaries from receiving most Medicaid benefits from the moment that they are booked into a jail. Given that our jails disproportionately impact the poor and people of color, the inmate exclusion has disrupted the creation of patient-centered health systems that can support people regardless of where they receive care. It is unsurprising that the disparities in our health and justice systems are mirrors of one another.
This means that someone supported in the community by a team of providers would lose access to those providers and services the moment that they enter a jail. Then, the care that they do receive in the jail is completely disconnected from the goals and modalities that are offered by the providers on the outside. Upon release, that individual must jump through significant hoops to reinstate Medicaid benefits, wait for pharmacy benefits to be turned on, and reestablish a relationship with their providers (if they can even be seen again given the major shortages and wait times in our present system).
For those struggling to manage their health, this bureaucratic nightmare can make reestablishing care nearly impossible. For health systems that are trying to support those who are incarcerated, the inmate exclusion is a major roadblock in the path to creating a holistic and transparent system wherever and whenever people receive care.
New Legislation Is Making Strides
The times, however, are changing. States and the federal government have recently demonstrated newfound interest in changing the way our justice and health systems interrelate.
First, the Omnibus Appropriations Act of 2023 modified the Social Security Act to require sentenced, Medicaid-eligible juveniles to receive Medicaid’s screening and diagnosis benefits in the 30 days before release from incarceration. Additionally, it provides 30 days of targeted case management before and after release from a carceral facility. The law will also allow states to opt to allow Medicaid-eligible juveniles to maintain all Medicaid benefits while they are on trial or pending disposition of their charges.
This statutory change is the first sign of a revolution in the federal government’s expectations for how health and justice systems connect. Besides this change, there have been several bipartisan attempts in the U.S. House of Representatives and Senate to pass legislation that would modify the inmate exclusion by allowing Medicaid during incarceration.
While the federal government continues to craft legislation that chips away at the inmate exclusion, states are forging ahead by requesting that the federal government allow them to waive the inmate exclusion in their state. California received a first of its kind waiver of the inmate exclusion in January — and several other states are creating their own waivers. California’s waiver would allow for a set of targeted services 90 days before release, ensuring that the vast majority of people who are incarcerated would maintain their benefits the entire time they are in jail.
The Centers for Medicare and Medicaid Services (CMS), the agency that approves these waivers, will be providing guidance to states for how they can create similar waivers.
We Have the Power to Envision and Create a New System
We are witnessing a new horizon. Many advocates and policymakers are working to ensure that our crisis response doesn’t exacerbate inequities like my neighbor experienced. And for those who do end up in jail, we have a clear set of expectations that the care received there is not disconnected from the broader health system. Upon release, people will not have to struggle to get reconnected to receive Medicaid services; rather, they can put their energy toward getting the help they need.
Working together, we can envision and create health and justice systems that expose and remedy inequities rather than further exacerbate them. Our hope at my nonprofit Community Oriented Correctional Health Services (COCHS) is that these are just the first steps to creating a strong, healthy behavioral health system. To that end, we work with federal, state and local health systems to improve the connections between community and correctional systems. In addition, we work with local leaders to ensure that their efforts to create systems that serve their communities will drive health delivery systems toward a future that doesn’t leave the criminal justice systems to operate in the absence of community support, but to ensure that jails and prisons will be places where transparent, high-quality, community-connected care becomes the norm.
Dan Mistak, MA, MS, JD is the acting President and Director of Healthcare Initiatives for Justice-Involved Populations at COCHS. He is an attorney by training and is dedicated to identifying and creatively leveraging opportunities to change the discourse and practices that shape our health and corrections systems. Mr. Mistak served on the board of NAMI Hawai’i before he moved back to rural Ohio to support his family and reengage with the community that made him who he is today.