An Act to Reduce Recidivism by Improving Access to Benefits for Individuals with Psychiatric Disabilities upon Release from Incarceration

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Commentary on Article I

I.A. Findings.
The Findings section includes general statements about the importance of access to income and health care benefits for individuals with psychiatric disabilities who are returning to their communities following incarceration. It may be helpful to include supporting data either in the Findings section of the legislation or in fact sheets distributed to lawmakers.
National studies show that many incarcerated individuals have psychiatric disabilities. For example, researchers have found that:

• More than 16% of jail inmates have a mental illness.1
• Annually, nearly two million people with mental illnesses are jailed-35,000 new admissions a week.2
• At the end of 2000, nearly one million individuals with mental illnesses were incarcerated or on probation.3
• Youth in the juvenile justice system have substantially higher rates of mental health disorders than youth in the general population.4
• One in five youth in the juvenile justice system has a serious mental health problem.5
• More than 600,000 individuals will be released from prisons this year, at least 1,600 per day; many more will be released from jails and juvenile facilities.6

Every former inmate faces obstacles in finding work, re-establishing family relationships, developing a social network and avoiding further criminal activity, but the challenges faced by individuals with psychiatric disabilities-who require specialized services and supports -can be even greater and more complex. In addition to grappling with their illnesses, they are more likely than other inmates to have been homeless or unemployed when incarcerated. For example, within the year before arrest:

• Twenty percent of state prisoners with mental illnesses were homeless, compared to 9% of other inmates.
• Thirty percent of jail inmates with mental illnesses were homeless, compared to 17% of other inmates.
• Thirty-nine percent of state prisoners with mental illnesses were unemployed, compared with 30% of other inmates.7

Linking individuals with necessary services and supports as soon as possible after release is important to prevent recidivism. Research shows that the first weeks in the community are critical, with arrest rates highest soon after release and declining over time.8

As the Vera Institute notes, the first month out “is not only a period of difficulties, but also a period of opportunities to get people started on the path to employment, abstinence from drugs, good family relations, and crime-free living.”9 We fail to take advantage of these opportunities. For example, a 1991 study reported that 64% of offenders with mental illnesses were rearrested within 18 months of release from incarceration and 48% were hospitalized one or more times within those first 18 months.10

State-specific statistics, if available, can be especially helpful to convince legislators of the need for and cost-effectiveness of improving released inmates’ access to benefits and services. For example,

• The number of individuals incarcerated in the jurisdiction can be gathered. In many places, estimates of the number of inmates with psychiatric disabilities are available or discernable. The number of individuals released annually from state prisons or local jails should also be available.
• Data on the number of inmates in the state who received Supplemental Security Income (SSI) or Medicaid at the time of incarceration should be obtainable.11
• Typical wait times for Medicaid and SSI eligibility determinations or redetermination are also available. This sort of data can be very useful in describing and making real the challenges faced by released inmates with psychiatric disabilities.12

I.B. Purpose.
This model law proposes specific actions that states and localities can take to improve access to federal Medicaid, SSI and SSDI13 benefits for adults and juveniles with psychiatric disabilities being released from correctional facilities. According to the landmark consensus report from the Council of State Governments (CSG), it is important to “streamline administrative procedures to ensure that federal and state benefits are reinstated immediately after a person with mental illness is released...”14 The CSG consensus report recommends that states suspend Medicaid benefits, as opposed to terminating them, commence discharge planning at the time of booking and continue the process throughout the period of detention, and develop a process to ensure that inmates who are eligible for public benefits receive them immediately upon their release.

Advocates and policymakers should also consider including in legislation improved access to other federal benefit programs that can help individuals more successfully reintegrate into their communities, such as Temporary Assistance to Needy Families (TANF), Food Stamps, and Veterans Administration benefits and health coverage, as well as state only public assistance programs such as general assistance.15

In addition to being humane and a cost-effective, helping individuals with psychiatric disabilities to access these benefits upon release can be part of a more comprehensive state approach to support community integration. Under the Supreme Court’s ruling in Olmstead v. L.C.,16 states must avail themselves of all resources that can be used to support an individual with a disability living in the community. Failure to assist people being released from correctional facilities in quickly accessing federal Medicaid, disability and other benefits to which they are legally entitled undermines a state’s ability to achieve the community integration mandate of the Supreme Court’s ruling in Olmstead.

While the model law is drafted as a state law, it could be adapted to be local legislation, for enactment by a county or city. Localities cannot change Medicaid rules or regulate mental health care in state facilities, but they could implement other provisions of this law. The Bazelon Center can help advocates and policymakers interested in drafting local legislation.

Notes

1. Bureau of Justice Statistics Special Report, Mental Health Treatment of Inmates and Probationers (July 1999, NCJ 174463). This statistic and additional data can be found in the Bazelon Center’s Fact Sheets for Advocates: People with Serious Mental Illnesses in the Criminal Justice System.
2. Based on admission rates reported in Bureau of Justice Statistics Bulletin, Census of Jails, 1999 (August 2001, NCJ 186633) multiplied by the percentage of jail inmates with mental illnesses (16.3%) reported in Bureau of Justice Statistics Special Report, Mental Health Treatment of Inmates and Probationers (July 1999, NCJ 174463).

3. Calculated using the respective rates of mental illness report in Bureau of Justice Statistics Special Report, Mental Health Treatment of Inmates and Probationers (July 1999, NCJ 174463) and year-end jail and prison population numbers reported in Bureau of Justice Statistics Bulletin, Prisoners in 2000 (August 2001, NCJ 188207) and probationers reported in Bureau of Justice Statistics press release of August 26, 2001.

4. Cocozza, Joseph. J., & Skowyra, Kathleen R., Youth with Mental Health Disorders: Issues and Emerging Responses (April 2000), Juvenile Justice, Vol. VII(1), Washington, D.C.: Office of Juvenile Justice and Delinquency Prevention.

5. Id.

6. Travis, Jeremy, Solomon, Amy L. & Waul, Michelle , From Prison to Home: The Dimensions and Consequences of Prison Reentry, Research Monograph of the Justice Policy Center of The Urban Institute (June 2001).

7. Bureau of Justice Statistics Special Report, Mental Health Treatment of Inmates and Probationers (July 1999, NCJ 174463).

8. See Nelson, M., Deess, P., & Allen, C. The First Month Out, Post-Incarceration Experiences in New York City (New York, New York: Vera Institute of Justice, 1999) at 2-3; Beck, A. & Shipley, B. Recidivism of Prisoners Released in 1983, Washington, D.C.: U.S. Department of Justice, Bureau of Justice Statistics, 1989. (These arrests resulted in about 41% being back in jail or prison within three years.) Another study published in 2000 by the Bureau of Justice Statistics found that 62% of individuals who leave jail or prison each year are re-arrested at least once within three years and 41% are re-incarcerated. Beck, A. J., State and Federal Prisoners Returning to the Community: Findings from the Bureau of Justice Statistics, Washington DC: United States Department of Justice, Bureau of Justice Statistics (2000).

9. Nelson, Deess & Allen (1999) at 2.

10. Feder, L., “A profile of mentally ill offenders and their adjustment in the community,” Journal of Psychiatry and the Law, 19:79-98 (1991). The study looked at prison inmates who had required psychiatric hospitalization during incvarceration. See also Feder, L., “A comparison of the community adjustment of mentally ill offenders with those from the general population: An 18-month follow-up,” Law and Human Behavior, vol. 19, no. 5 at 477 (1991).

11. It is especially true for SSI statistics because most jails report this information to the Social Security Administration in order to collect a “incentive payment” or bounty fee from SSA. See 42 U.S.C. § 402(x); POMS SI 02310.088. “POMS” refers to the Social Security Administration’s Program Operations Manual System, available online at SSA’s website, http://policy.ssa.gov/poms.nsf.

12. In New York, for example, advocates determined that the Medicaid re-application process takes two to three months or more; more than 28,000 people were released from New York State prisons and 100,000 were released from local jails in 2000; and an estimated 25-30% of all New York state inmates receive Medicaid at the time of their incarceration. From these data, they could extrapolate that because of Medicaid-eligibility terminations and delays in reinstatement, more than 40,000 individuals in the state were released from incarceration and could not get the immediate health care services to which they are entitled. Letter from Mental Health Association of New York State to Antonia Novella, Commissioner, New York Department of Health, November 21, 1901.

13. The model law does not directly address Medicare. Individuals gain access to Medicare through enrollment in the SSDI program; they are entitled to Medicare benefits (although not while incarcerated) after two years of enrollment in the SSDI program. By facilitating access to SSDI, states also facilitate access to Medicare. Unfortunately, Medicare is of little benefit to released inmates seeking mental health services. It does not pay for medications, a deficiency that Congress may eventually correct, nor does it pay for intensive community services. But it does have limited coverage for counseling and hospitalization.

14. Council of State Governments, Criminal Justice/Mental Health Consensus Project (June 2002), New York: Council of State Governments, available at www.consensusproject.org, Policy Statement 12(a) at p. 99 and Policy Statement 16(b) at p. 121; id. at Policy Statement 21(g) at p. 168 (“[states should] Develop a process to ensure that inmates eligible for public benefits receive them immediately upon their release.”).

15. See Facts About Federal Benefits for Individuals with Serious Mental Illness Who Have Been Incarcerated: Veterans Benefits, Temporary Assistance for Needy Families (TANF) and Food Stamps (January 2002), and A Better Life-A Safer Community: Helping Inmates Access Federal Benefits (January 2003). The Council of State Governments report urges that states “[e]nsure that people with mental illness are accessing the full range of entitlements for which they are eligible.” Policy Statement 39(c) at p. 474.

16. Olmstead v. L.C., 527 U.S. 581 (1999). See Bazelon Center for Mental Health Law, Under Court Order— What the Community Integration Mandate Means for People with Mental Illnesses: The Supreme Court Ruling in Olmstead v. L.C. (October 1999).

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