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 II

Definitions should, when appropriate, reference and be consistent with existing definitions in state law or regulation. Specific definitions in the model law make reference to existing state definitions.

Case management: This definition should at a minimum include helping individuals to access programs, services and supports (including housing, education, employment, job training, social services, legal services and health care), as well as individual client advocacy to establish and maintain eligibility for benefits and other programs and to uphold clients’ rights.

Individuals with psychiatric disabilities: This definition identifies the population to which the law will apply. As written, the law targets adults with serious mental illnesses and juveniles with emotional or behavioral disturbances, as defined in state law or policy. The target population can be expanded or limited by adopting an alternative definition. In defining the target population, drafters may want to consider an approach taken by the federal Substance Abuse and Mental Health Services Administration (SAMHSA), which defines an individual with a psychiatric disability as someone with an illness listed in the current Diagnostic and Statistical Manual of Mental Disorders (DSM)1 that substantially interferes with or limits one or more major life activities.

Incarcerated and Inmates: Federal law prohibits Medicaid payments for “care or services” for any individual who is an “inmate” in a correctional facility.2 An individual is an inmate of a correctional facility if held there involuntarily. Status offenders and adults or juveniles awaiting transfer, trial or sentencing are all “inmates” on whom Medicaid dollars may not be spent. An individual is not “incarcerated” or an “inmate” if on probation, parole or home monitoring3 and, accordingly, may receive care and services paid by Medicaid.4

Likely to be eligible: The model law provides that previous enrollment within five years of incarceration makes an individual “likely to be eligible” upon release. Otherwise, the model law does not detail how the state will determine if inmates are “likely to meet eligibility criteria for the Medicaid, SSI or SSDI programs upon their release from incarceration.” Advocates and policymakers may wish to include additional guidance in the law or a specific direction that regulations be developed to give additional guidance. Such guidance might focus on whether the individual has a mental illness diagnosis, meets a certain standard of disability and is low income.

Under the model law, “likely to be eligible” individuals receive help in applying for federal benefits upon release and are eligible for bridge programs (Article VI). In fleshing out the definition, policymakers should keep in mind that the state has an interest in reducing its overall expenses and those of localities and in shifting costs to the federal government.5 When individuals are released without benefits and deteriorate, they end up in emergency rooms, psychiatric hospitals and jails, where care is expensive and is paid for primarily by state and local dollars. Some less expensive community care may be available, also without federal cost-sharing. It makes fiscal sense to ensure that released inmates are enrolled in federal benefit programs or in bridge programs that enable them to receive less expensive community services, whose costs can be recouped with federal funds.

Medicaid provides access to health and mental health treatment, including services that help maintain housing or a job or continue their education. Medicaid also funds case managers, who will assist the person in addressing problems of daily living. Medicaid is a means-tested program and has other specific eligibility criteria. Released inmates with psychiatric disabilities will usually qualify for Medicaid as a consequence of enrollment in the SSI program or because they are low income and care for a child.

In all states, the federal government pays at least 50% of the cost of the Medicaid program. The actual share of costs paid by the federal government depends on the economic well-being of the state’s population: the poorer the state, the higher the proportion of costs paid by the federal government. In the poorest states, the federal government pays over 75% of the cost of Medicaid services.6

Medicaid eligibility category: This definition is written to encompass all of the eligibility categories in the state’s Medicaid plan, both those mandated by federal law and those that are optional. Using this language ensures the inclusion of all individuals who may be eligible for Medicaid. Some of the relevant optional eligibility categories are:
u Women and children in families whose incomes are over the federally mandated minimum of 100% of the federal poverty level (states have flexibility to set income limits up to 185% of federal poverty level).7

• u Medically needy individuals, defined as those who do not meet the financial eligibility criteria of Medicaid but who have high health care expenditures and who can be eligible once they spend down to Medicaid-eligibility levels (calculated by deducting their health care expenses from their incomes).8
• u Individuals with disabilities who receive SSI state supplements but are not eligible for SSI cash benefits because their income is over the federal limit.9
• u Individuals ages 65 and over and people with disabilities with incomes up to 100% of poverty.10
• u Those who will be working upon release but who also have a disability (in some cases they must buy into the program).11
• u Young adults who were in foster care on their 18th birthday but have since aged out (they can be covered under Medicaid up to age 19, 20 or 21).12
• u Individuals who qualify for Medicaid through a state’s Section 1115 waiver program to cover uninsured individuals.13
• u Juveniles who are eligible for coverage because they have coverage under the State Children’s Health Insurance (S-CHIP) program, which in many states provides them access to Medicaid. (Note that in some states, S-CHIP youngsters will only be eligible for a limited private insurance health plan.)14

Mental health services: Under the model law, “mental health services” is defined to include substance abuse services. An alternative would be to use throughout the law the term “behavioral health” services, defined to include both mental health and substance abuse services. Because of the high incidence of substance abuse among individuals with psychiatric disabilities who end up incarcerated, it is essential that the model law provide for access to substance abuse services.

Pre-Release Agreement: A pre-release agreement is an agreement between the Social Security Administration (SSA) and a correctional agency that details how SSA and the agency will work together to access SSA’s “pre-release procedure” on behalf of incarcerated individuals. SSA’s pre-release procedure is aimed at “assuring eligible individuals timely SSI payments when they reenter the community.”15 This procedure allows SSA to (a) process SSI applications from incarcerated individuals months before their anticipated release and (b) make a prospective determination of potential eligibility and payment amount, based on anticipated circumstances. Through this approach, benefits are payable as soon as feasible after—sometimes even on the day of—release.

A pre-release agreement can apply to one correctional facility, a group of facilities or all facilities in a jurisdiction.

Pre-release agreements may also be used to improve access to SSDI and Food Stamps.
Note: SSA’s pre-release procedure can be utilized without a pre-release agreement.16

For a more detailed description of pre-release agreements, see the commentary for Article V.

SSI: The federal Supplemental Security Income program provides income support to low-income individuals who are aged, blind or disabled. Individuals who qualify for SSI benefits are generally eligible automatically for Medicaid.17 To be eligible for SSI on the basis of disability, individuals must have a diagnosed disorder, such as mental illness. Adults must be so disabled that they cannot engage in “substantial gainful activity” by working in any job that is available in the national economy. Juveniles must have “marked and severe” functional limitations when compared with other children of the same age.

SSDI: Social Security Disability Insurance pays monthly benefits, based on past earnings, to individuals with disabilities who have been employed. Most people with serious mental disorders are on SSI (either alone or in combination with a small SSDI benefit) because they have a limited work history due to the severity of their illness and the young age at which they became disabled. Recipients become automatically eligible for Medicare health and mental health care benefits two years after they qualify for SSDI.

Notes

1. The Diagnostic and Statistical Manual of Mental Disorders (DSM) published by the American Psychiatric Association sets the criteria for diagnosis of a psychiatric condition.

2. 42 U.S. Code § 1396d(a)(27)(A).

3. POMS SI 00520.009 (“Individuals participating in alternatives to incarceration outside of formal institutional settings for whom the penal authorities are not providing food and shelter (either directly or indirectly) are not residents of a public penal institution.”). “POMS” refers to the Social Security Administration’s Program Operations Manual System, available online at SSA’s website, http://policy.ssa.gov/poms.nsf.

4. See 42 C.F.R. § 435.1009.

5. See The Biennial Report of the Texas Council on Offenders with Mental Impairments (2003) at 26-28 (describes a Social Security project between SSA and TCOMI that has as one of its goals decreasing local and/or state financial burden following an individual’s release from jail). TCOMI’s programs are being studied by Sam Houston State University.

6. POMS SI 01715.001 B (“The Federal government pays 50 percent of Medicaid administrative costs and between 50 and 83 percent of program costs following a statutory cost-sharing formula.”).
7. 42 U.S.C. §1396a(10)(E)(iii).

8. 42 U.S.C. §1396a(a)(10)(C), 42 C.F.R. § 435.300, § 435.800, §436.800.

9. 42 U.S.C. §1396a(a)(10)(A)(ii)(IXI); 42 C.F.R. § 435.232.

10. 42 U.S.C. § 1396a(a)(10)(A)(ii)(XI).

11. 42 U.S.C. §1396a(a)(10)(A)(ii)(XV, XIII and XVI), §1360(g), §1396b(i)(20), §1396d(v), §1396a(u)(1).

12. 42 U.S.C. §1396a(a)(10)(A)(ii); §1396d(v) and 42 C.F.R. § 435.222(b)(1).

13. Section 1115 of the Social Security Act, 42 U.S.C. § 1315(a).

14. Title XXI of the Social Security Act, added by the Balanced Budget Act of 1997, Pub. L. No. 105-33, Subtitle J, State Children’s Health Insurance Program, and 42 C.F.R. § 457.

15. POMS SI 00520.900 A. For an example of a pre-release agreement, see POMS SI 00520.930, exhibit 2.

16. POMS SI 00520.910 (“a formal agreement is not a prerequisite for utilizing prerelease [procedures]”).

17. In 32 states, SSI eligibility results in automatic Medicaid coverage; in seven other states, SSI recipients are automatically eligible for Medicaid but must submit a separate application. In the 11 states that use different rules (CT, HA, IL, IN, MN, MS, NH, ND, OH, OK and VA), people who receive SSI nearly always qualify for Medicaid, although they must go through a separate application process.