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

Read Article VII Back to Summary of Articles

Commentary on Article VIII

This article is designed to promote and ensure continuity of mental health care for individuals involved in the criminal justice system. It requires that, when incarcerated, individuals with psychiatric disabilities have access to necessary mental health services (including substance abuse treatment), particularly counseling, crisis services and appropriate medications.1

In a departure from usual practice, the model law imposes on the mental health system the responsibility for providing such care to individuals in jail or juvenile detention facilities. Such an arrangement, in our view, will promote better care, and continuity of care, for those incarcerated pre-trial o sentenced to jail for minor offenses, who generally stay in jail less than a year and often for relatively brief periods.

The model law also imposes on the mental health system the obligation to provide case management services to inmates, focused on release planning (akin to discharge planning in the mental health system).This obligation extends to all inmates, not just those in jails and juvenile detention facilities. Essential release-planning activities include: identifying community-based service providers that can meet the needs of the individual upon release, arranging for the individual to be linked with providers upon release, facilitating access to benefits programs, and helping to locate and secure suitable housing for the individual upon release.2 (Case management services should continue after release, and can be financed through Medicaid.)3

The model law requires that, when released, inmates be given a 14 day supply of medication and access to Medicaid.4 In the community mental health system, prescriptions are typically for a 30 day supply. The shorter time period is meant to encourage a visit with a psychiatrist and a medication review shortly after release.

• The Texas Council’s Continuity of Care (COC) Program provides formal pre- and post- release aftercare for all offenders with special needs released from Texas Department of Criminal Justice Facilities (including state jails and prisons). COC staff develop pre-release plans in conjunction with community service providers who will work with the individual following release. In addition, 90 days prior to release, Benefit Eligibility Specialists initiate all relevant applications for federal entitlements for which the inmate may be eligible ( SSI, SSDI, Food Stamps, etc.).5

At least two court decisions recognize inmates’ right to continuity of care upon release from incarceration.

• A federal appeals court (covering California, Oregon, Washington, Arizona, Montana, Idaho, Nevada, Alaska and Hawaii) has ruled that the U.S. Constitution requires states to ensure that a released inmate who has been receiving medication while incarcerated leaves the facility with “a supply sufficient to ensure that he has that medication available during the period of time reasonably necessary to permit him to consult a doctor and obtain a new supply.”6
• Relying on state law, a judge ordered New York City to provide “adequate discharge planning” to individuals who have mental illnesses, to avoid “a return to the cycle of likely harm to themselves and/or others” and resulting arrest.7

Notes

1. According to the Council of State Governments Consensus Project report, states should “[e]nsure that the mechanisms are in place to provide for...crisis intervention and short-term treatment, and discharge planning for defendants with mental illness who are held in jail pending the adjudication of their cases,” Council of State Governments, Criminal Justice/Mental Health Consensus Project (June 2002), Policy Statement 13, page 102, and “[f]acilitate a detainee’s continued use of medication prescribed prior to his or her admission into the jail,” id., Policy Statement 13(e), at p. 107.

2. The Council of State Governments Consensus Project notes that “[r]eaching out to community-based organizations and agencies that would serve this population and facilitating their access to the institution/inmate prior to release will enhance the likelihood that an individual, upon release, would seek out services.” Report at p. 171. It urges states to “[iImprove availability of and access to comprehensive, individualized services when and where they are most needed to enable people with mental illness to maintain meaningful community membership and avoid inappropriate criminal justice involvement.” Id., Policy Statement 1, p. 28. To this end, the Consensus Project recommends that states “[p]rovide user-friendly entry to the mental health system for those who need services,” Id., Policy Statement 1(a), p. 28, and “[f]acilitate collaboration among corrections, community corrections, and mental health officials to effect the safe and seamless transition of people with mental illness from prison to the community,” Id., Policy Statement 21, p. 162.

3. The Council of State Governments Consensus Project notes that “[f]or inmates with mental illness, whose community adjustment issues are even more complex than inmates in the general population, the need for systemic discharge planning is particularly crucial.” Id., at p. 162. “One particularly promising, albeit uncommon, strategy is to have the transition planner working with the inmate during the last months of his or her incarceration continue as a case manager (coordinating the delivery of services and facilitating the person’s compliance with conditions of release) after the offender’s release to the community. As part of such a strategy, community-based staff, who will eventually provide post-release case management, can be brought into the institution to work with institutional-based discharge planners in devising and carrying out a comprehensive case management plan.” Id., at p. 163.

4. The Council of State Governments Consensus Project urges states to provide “an adequate supply of essential psychotropic medications upon ...release”). Id., at p. 168

5. Biennial Report of the Texas Council on Offenders with Mental Impairments, Submitted to the Governor, Lieutenant Governor, Speaker of the House (2003) (available at http://www.tdcj.state.tx.us/tcomi/tcomi-home.htm), at 20.

6. Wakefied v. Thompson, 177 F.3d 1160, 1164 (9th Cir. 1999).

7. Brad H. v. City of New York, 185. Misc.2d 420, 431 (N.Y. Sup. Ct.), aff’d, 276 A.D.2d 440 (N.Y. App. Div. 2000).