By Juliana Zhou

The Centers for Medicare and Medicaid Services (CMS) announced a novel Section 1115 waiver opportunity in April 2023 that allows states to offer Medicaid services to individuals who are leaving incarceration. Twenty-two states have already submitted demonstration applications extending Medicaid benefits to qualified pre-release individuals, and CMS has approved applications from California, Washington, Montana, and Massachusetts. The pre-release Medicaid waiver is a major opportunity for states to close the health equity gap for formerly incarcerated individuals and help those leaving incarceration thrive in their home communities.

Individuals leaving incarceration face serious negative health outcomes and a high risk of death due to overdose in the weeks immediately after their release. The carceral health care system has a demonstrated record of racial disparities, chronic health neglect, and inaccessible processes. CLASP urges states to center the rights and privacy of systems-involved populations and guard against the reach and influence of the criminal legal system into the lives of those transitioning back into the community.

Some States Are Investing in Community-Based Care, But More Can Be Done

A key opportunity in the new pre-release Medicaid option is the chance for states to invest in community-based care for individuals leaving incarceration, as Massachusetts has done. The state’s approved demonstration covers community and peer-provided services including doulas; uses its capacity-building funds to offer facility-based care coordinators from community-based providers; and includes a reinvestment plan that would invest federal matching funds into community-based services to support healthy transitions and/or diversion from involvement in the criminal justice system. Massachusetts demonstrates its prioritization of community repair over punitive community supervision for returning individuals through its meaningful engagement with and investment in community-based providers.

The Majority of States Are Opting for the Maximum Pre-Release Period Allowed

The pre-release coverage period ranges from 30 to 90 days, the maximum allowed by CMS. Just over half of the states that have submitted a demonstration waiver have opted for the maximum, and seven of the remaining 10 states have opted for the minimum. We urge all states to opt for the full 90-day pre-release period to maximize the number of people who can benefit from these programs. Having the time to establish a consistent treatment plan prior to release can improve health outcomes for individuals leaving incarceration.

Eligibility Criteria Limit the Equity Impact of Pre-Release Medicaid

Many states’ waiver demonstration applications are part of larger state efforts to address the opioid and mental health crises. Five states limit their demonstration’s eligibility criteria to only individuals suffering from substance use disorder and/or severe mental illness. By over-defining qualifying conditions, states are hindering the impact of this transformative policy opportunity. Incarcerated populations are more likely to have chronic health conditions such as high blood pressure, asthma, cancer, and infectious diseases (e.g., hepatitis C and HIV) than the public. All these conditions can be debilitating or even fatal if not medically monitored.

Eligibility can also be limited by the carceral setting a person is preparing to leave. Whether someone is incarcerated in a state or local jail, prison, or youth correctional facility should not determine if they qualify for pre-release services. States that want to roll out their pre-release Medicaid program methodically should instead consider implementing a timeline for gradually expanding the program to additional facilities rather than setting limitations on facility participation from the outset.

To truly and effectively support an incarcerated individual’s transition back into the community, Medicaid re-entry programs should cover the health care needs of all individuals who would otherwise qualify for Medicaid if not for their incarceration status, regardless of their carceral setting or medical condition.

Only A Few States Plan to Offer Full Medicaid Benefits and Services

Many states’ waiver demonstrations only cover a limited set of Medicaid benefits to individuals prior to their release, which often include case management, medication-assisted treatment, counseling, and a 30-day supply of medication upon release. Only Arkansas, Rhode Island, Utah, and Vermont plan to offer all the health care services included in their state health plans. Some states offering a limited set of benefits also include additional housing or nutrition services targeting health-related social needs.

Conclusion

States have an enormous opportunity through the Medicaid re-entry waiver to invest in community and peer health workers and prioritize community care within the health care system. Sadly, pre-release Medicaid enrollment flexibilities have limited value in the 10 remaining states that have not expanded Medicaid. CLASP hopes that when implementing these waivers, states will learn the lessons of the failed mass incarceration movement and center the health and support needs of individuals transitioning back into the community.