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

Read Article III Back to Summary of Articles

Commentary on Article III

The model law sets up a three-pronged approach for inmates who were enrolled in federal benefit programs at the time they were first incarcerated:

• inmates retain benefit eligibility status as long as permitted under federal law;
• restoration of suspended benefits is immediate upon release; and
• inmates receive assistance with applications for restoration of benefits, as set forth in Article V.
  
  Article IV applies when federal benefits have been terminated, or when a likely-to-be-eligible individual had no previous enrollment in SSI, SSDI or Medicaid.

III. B. 1. Suspension of Medicaid Benefits
Federal Medicaid benefits are essential to most jail inmates with psychiatric disabilities who leave corrections facilities through discharge, parole or conditional release/probation. If they are to access community treatment services, these individuals need speedy access to Medicaid mental health coverage. The Vera Institute’s study of post-incarceration experiences in New York City found that the lack of Medicaid was the biggest obstacle to accessing treatment (psychiatric treatment, addiction treatment or medical treatment) following release from incarceration.1

Federal law prohibits Medicaid payments for “care or services” for any individual who is an inmate in a correctional facility.2 However, state officials are permitted “to use administrative measures that include temporarily suspending an eligible individual from payment status during the period of incarceration to help ensure that no Medicaid claims are filed.”3 States are not required to terminate an individual’s Medicaid eligibility upon incarceration.4 In fact, the states have no authority under Medicaid law to drop inmates from the Medicaid eligibility rolls upon incarceration.5

Nonetheless, in most if not all states, when a Medicaid recipient is incarcerated, the Medicaid agency is notified of the incarceration and automatically terminates the individual’s Medicaid eligibility.6 The individual is required to re-apply for Medicaid when released and must await an eligibility determination before getting Medicaid benefits and renewed access to treatment services. The Medicaid re-application process is often cumbersome and lengthy. The Council of State Governments Consensus Project urges states to “[s]uspend (as opposed to terminate) Medicaid benefits upon the detainee’s admission to the facility to ensure swift restoration of the health coverage upon the detainee’s release.”7

III. B. 2. Reinstatement of Medicaid
When Medicaid benefits have been suspended, they must be fully restored immediately upon release. As the Secretary of HHS recently made clear, “a State must ensure that the incarcerated individual is returned to the rolls immediately upon release, unless the State has determined that the individual is no longer eligible for some other reason.”8 This allows released individuals to go directly to a Medicaid provider and access services.9

When Medicaid Eligibility Is Dependent on SSI Eligibility
Many inmates with psychiatric disabilities are eligible for SSI and through that eligibility qualify for Medicaid.10 When an inmate whose Medicaid eligibility is through SSI is terminated from SSI, he or she will lose Medicaid eligibility unless qualified for Medicaid under another eligibility category.11 When an individual’s Medicaid eligibility is wholly dependent on SSI, SSI eligibility must be restored first before Medicaid eligibility can be restored. SSA’s pre-release procedure can greatly speed the individual’s re-establishment of SSI eligibility. (See Commentary on Article V.B. regarding pre-release agreements and the importance of close work between correctional agencies and the Social Security Administration).

III. C. Applications to Restore Federal Disability Benefits
This section sets up processes by which correctional agencies are to ensure the speedy restoration of SSI and SSDI cash benefits upon release for individuals with psychiatric disabilities whose benefits were suspended during incarceration.

SSI cash payments are suspended when an individual is incarcerated for a full calendar month.12 The inmate remains on the eligibility rolls, and SSA presumes that the inmate, while incarcerated, remains disabled.13 This situation continues unless and until the inmate has experienced consecutively 12 full calendar months of incarceration. If the inmate is incarcerated consecutively for 12 full calendar months, SSI eligibility is terminated.14 An individual whose eligibility has been terminated must file a completely new application for SSI, and show that he or she is still disabled under the eligibility standards (see Article IV).

SSDI cash payments are also suspended when an individual has been convicted and incarcerated for longer than 30 days.15 However, SSDI eligibility is never terminated for incarceration alone, no matter how long the incarceration.16 Cash payments can resume the month after the month of release.17 SSA must verify that the person is no longer in a correctional facility.

By taking advantage of SSA’s pre-release procedure, states can assure speedy restoration of SSI and SSDI benefits upon an inmate’s release. (See Commentary to Article V.B.)

Notes

1. Nelson, M., Deess, P., and Allen, C. The First Month Out, Post-Incarceration Experiences in New York City. New York, New York: Vera Institute of Justice, 1999 at p. 21. (“Some people told us they worried about running out of medication, and a few reported skipping doses to make their medication last longer, hopefully until they were covered. . . . Delays in getting Medicaid meant that many people who were required to attend a treatment program could not enroll immediately, which put them at risk of relapsing and of violating parole.”).

2. The Medicaid statute precludes payment of federal matching funds to pay for services for an individual wo is “an inmate of a public institution (except as a patient in a medical institution).” 42 U.S. C. § 1396d(a)(27)(A); 42 C.F.R. § 435.1008. A correctional facility is a “public institution” for purposes of this prohibition. 42 C.F.R. § 10009.

3. Letter from Donna E. Shalala, Secretary of Health and Human Services to Honorable Charles E. Rangel, House of Representatives (April 5, 2000); see also letter from Sue Kelley, Associate Regional Administrator, Division of Medicaid and State Operations to Kathryn Kumerker, Director, Office of Medicaid Management, New York State (September 20, 2000).

4. Id. Memorandum from the Director, Disabled and Elderly Health Programs Groups, Center for Medicare and Medicaid Operations, to All Associate Regional Administrative Divisions for Medicaid and State Operations, “Clarification of Medicaid Coverage Policy for Inmates of a Public Institution,” Health Care Financing Administration, Department of Health and Human Services (December 12, 1997).

5. Moreover, a state may not terminate anyone from Medicaid without first determining whether the individual qualifies under other Medicaid-eligibility categories. See 42 C.F.R. § 435.930(b) (states must “continue to furnish Medicaid regularly to all eligible individuals until they are found to be ineligible.”).

6. Council of State Governments, Criminal Justice/Mental Health Consensus Project (June 2002), New York: Council of State Governments, at p. 109, n. 32 (citing a report of a survey of states in which all but one reported a policy of terminating enrollment in Medicaid upon a person’s incarceration: Collie Brown, “Jailing the Mentally Ill,” State Government News, April 2001, p. 28). The report may be found at www.consensusproject.org. See also Lackey, Cindy, Final Results of State Medicaid Agencies Survey in Memorandum to Fred Osher, Director of Center for Behavioral Health, Justice and Public Safety (October 16, 2000). Many management information systems are set up so that termination is the only option to prevent federal financial participation for incarcerated individuals.

7. Council of State Governments, Policy Statement 13(f) at p.108. As the report notes, “Suspending, instead of terminating, the detainee’s enrollment in Medicaid enables staff to effect the reinstatement of the benefits immediately upon release, guaranteeing the individual access to the treatment and medications likely to keep him or her from coming into contact with the criminal justice system again.” Id.

8. Letter from Donna E. Shalala, Secretary of Health and Human Services to Honorable Charles E. Rangel, House of Representatives (April 5, 2000); letter from Sue Kelley, Associate Regional Administrator, Division of Medicaid and State Operations to Kathryn Kumerker, Director, Office of Medicaid Management, New York State (September 20, 2000); see 42 C.F.R. § 435.930 (a) (states must “furnish Medicaid promptly to recipients without any delay caused by the agency’s administrative procedures”).

9. Letter from Tommy Thompson, Secretary, U.S. Department of Health and Human Services, to Congressman Charles Rangel (October 1, 2001); letter from Sue Kelley, Associate Regional Administrator, Division of Medicaid and State Operations to Kathryn Kumerker, Director, Office of Medicaid Management, New York State (September 20, 2000).

10. 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.

11. Before ending someone’s Medicaid eligibility, states must determine whether the individual qualifies for Medicaid under any of the state’s eligibility categories. See 42 C.F.R. § 435.930(b).

12. 20 C.F.R. § 416.211(a).

13. However, reinstatement of SSI requires submission of evidence that the individual again meets the financial requirements for the program. Cf. 20 C.F.R. § 416.1321(b).

14. 20 C.F.R. § 416.1335.

15. 42 U.S.C. § 402(x)(1)(A)(i). SSDI benefits are suspended for any 30-day period during which an individual is confined in a jail or prison in connection with a verdict or finding of not guilty by reason of insanity or guilty but insane with respect to a criminal offense, or a finding of incompetence to stand trial. 42 U.S.C. § 402(x)(I)(A)(ii); POMS DI 23501.000(A)(3). “POMS” refers to the Social Security Administration’s Program Operations Manual System, available online at SSA’s website, http://policy.ssa.gov/poms.nsf.

16. See Social Security Handbook (2001) § 0505E (imprisonment for conviction of a felony results in benefits not being paid) and § 0506 (last month of entitlement to SSDI generally occurs when disability ends, individual reaches age 65 or individual dies). Cf. § 1851 (listing events that end entitlement to benefits).

17. 42 U.S.C. § 402(x).