In the United States, nearly two million adults are incarcerated or otherwise detained in federal, state, local, and tribal systems. Due to the mass incarceration of Black and Latinx people, a disproportionate number of justice-involved people seeking care are from these communities—the groups most likely to also encounter discriminatory practices in health systems. Without access to adequate healthcare, including mental healthcare, these individuals are unlikely to receive the care needed to survive or to heal before reentering society.
A law passed in 1965—the Medicaid Inmate Exclusion Policy—prohibits incarcerated people from receiving Medicaid benefits. Under the Affordable Care Act, they are also barred from enrolling in a marketplace health plan.
The lack of access to healthcare has contributed to egregiously poor health outcomes for people involved in the criminal legal system. According to the US Department of Health and Human Services Office of Disease Prevention and Health Promotion, people who have been incarcerated carry a higher disease burden for conditions like asthma, cancer, and infectious disease than people who have not been incarcerated, leading to “worse mental and physical health.”
Largely because the lack of mental healthcare can contribute to recidivism, a set of policy changes laid out in the Consolidated Appropriations Act of 2024 make it easier for incarcerated people to access care upon their release. Because of the Medicaid Inmate Exclusion Policy, when a person with Medicaid coverage was incarcerated, states would typically end their enrollment in the program. But terminating someone’s enrollment means that the individual must then reapply and wait to be reinstated, creating a crucial care gap.
Under the new law, which goes into effect in 2026, states are required to suspend rather than terminate the Medicaid coverage of justice-involved individuals. According to the Commonwealth Fund, the new law “is an important step toward facilitating continuity of care and access to needed services for the millions of people who return to communities each year from incarceration.”
The Commonwealth Fund is also encouraging states to improve their administrative systems to help support better coordination between prisons, jails, and the Centers for Medicare and Medicaid Services to prevent coverage gaps. According to the Commonwealth Fund, “[t]o implement these and other recent Medicaid reentry changes effectively, states need support to address existing operational and systems gaps to ensure improved access to care at reentry.”
These individuals are unlikely to receive the care needed to survive or to heal before reentering society.
Less than half of states currently use automated systems to record and transmit enrollment and release information between prisons and jails and the state and local entities that review Medicaid eligibility. Under the new law, approximately $113.5 million in grants will be awarded to states to build more robust occupational capacity. As the Commonwealth Fund outlines, states should also consider using the funds to provide additional “eligibility and enrollment process modifications” and “application assistance,” among other procedural enhancements.
States can use an array of policy levers, such as prerelease and postrelease policies, to ease the transition back to society for those who have been incarcerated. The National Conference of State Legislatures (NCSL) has compiled research demonstrating how effective such policies can be. According to the NCSL, “States that have adopted policies to connect recently released inmates with Medicaid coverage have seen evidence that individuals are more likely to access health care services.”
However, some organizations are pushing for more flexible policies and procedures and improved healthcare for incarcerated people. For instance, the National Association of Counties (NACo) has endorsed a bill, the Due Process Continuity of Care Act, which constitutes an appeal to the Medicaid Inmate Exclusion Policy. If passed, the law “would allow pretrial detainees to receive Medicaid benefits,” therefore “improving the quality of care provided in jails and enhancing the number of available providers to treat this population.”
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Creating a Continuum of Mental Healthcare
“Allowing Medicaid coverage to continue for those in custody would make it easier for people with mental illness to receive continuous care.”
Due to the criminalization of mental health issues, the National Alliance on Mental Illness (NAMI) has deemed prisons and jails “America’s de-facto mental health providers but are often unable to provide adequate care as part of a system that is not built to provide health services.” This leaves people with mental, behavioral, and emotional health concerns who have encountered the criminal justice system with few options to improve their health.
According to NAMI, “approximately 44% of people incarcerated in jails and 37% of people in state and federal prisons have a history of mental illness.” Yet, due to the Inmate Exclusion Policy, most of these individuals lose access to mental healthcare services. There are exceptions to the rule: people detained within a correctional mental health facility can still access benefits, any incarcerated person admitted to a hospital falls under the exemption, and people not convicted are also entitled to keep their Medicaid coverage.
NAMI, which has pushed for policy changes to provide mental healthcare to the incarcerated, argues that “[a]llowing Medicaid coverage to continue for those in custody would make it easier for people with mental illness to receive continuous care—both when they become incarcerated and when they reenter the community. Additionally, it could improve the quality of care in jails and prisons because they would have to adhere to federal health care standards mandated under the Medicaid program.”
Making Medicaid accessible to justice-involved individuals would also impose stricter standards on prison and jail health systems.
States Providing More Care Options for the Justice-Involved
According to the Kaiser Family Foundation (KFF), states can request a partial waiver of the inmate exclusion policy from the Centers for Medicaid and Medicare Services (CMS) “to help smooth individuals’ transitions back into the community with ‘reentry services.’ These services aim to improve health care transitions, increase continuity of health coverage, reduce disruptions in care, improve health outcomes, and reduce recidivism rates.”
Three states—California, Montana and Washington—now have approval to provide these services. California estimates that approximately 200,000 people will be eligible for prerelease services annually compared to 4,000 in Washington state. According to KFF, another 19 states have filed waiver requests with CMS.
Even with better policies to create a smoother transition to Medicaid upon their release, people oscillate between two different healthcare systems: prison and jail health systems run by their respective states and Medicaid. In the back-and-forth, important health information, as well as opportunities to provide a continuum of care for these individuals, is lost. Making Medicaid accessible to justice-involved individuals would also impose stricter standards on prison and jail health systems, which are in dire need of greater regulation.
Though Medicaid could benefit people who are justice-involved, Medicaid expansion could benefit all low-income Americans who are at risk of not receiving sometimes desperately needed healthcare. Currently, information from the Center on Budget and Policy Priorities confirms that 40 states and the District of Columbia have adopted Medicaid expansion policies, but as states’ policy priorities change, funding for Medicaid expansion could evaporate.
The extension of healthcare to the incarcerated also necessitates a shift in how such individuals are viewed by the society at large. If people involved with the justice system are seen as fully human, and access to adequate healthcare is viewed as a fundamental human right, there won’t be any opposition to the proposals put forward by NAMI and NACo. Unfortunately, the politics of “deservingness” have too often dominated discussions about access to social welfare programs such as Medicaid. By embracing a health justice perspective rooted in health as a human right, we can begin to create policies based on the ideal that everyone, regardless of their current or past status within the justice system, deserves adequate healthcare.
