Gabrielle de la Guéronnière, Legal Action Center RSAT Webinar June 18, 2014 Understanding the Affordable Care Act and the Opportunities the Law Presents for the Criminal Justice System 1

What We’ll Discuss Today What are the ACA’s (Affordable Care Act) major opportunities to expand coverage for services and to improve access to care for justice-involved individuals? Expansion of Medicaid and specific implications for incarcerated people Improving access to substance use disorder and mental health care What are the next potential steps to enroll justice-involved people in health insurance and link them to care? 2

Health Characteristics of Justice- Involved Individuals 3 High rates of physical health problems, mental illness and substance use disorders (SUDs) in the criminal justice system 65% of all people incarcerated in jails and prisons meet medical criteria for a substance use disorder There are three times more seriously mentally ill persons in jails and prisons than in hospitals State and local court systems and correctional agencies have spent huge amounts of money on care Recent report found that prison health care spending in 44 states totaled $6.5 billion in 2008; spending rose on average by 52 percent over 7 years

Health Characteristics of Justice- Involved Individuals 4 Most people reentering from incarceration have no or little health insurance coverage in the community 70 to 90 percent of individuals with criminal justice involvement are uninsured at reentry Even for individuals with health insurance, coverage for mental health and substance use disorder benefits has been inconsistent and often lacking Most people have had poor access to health care 90 percent of the 23 million Americans with substance use disorders receive no specialty care One-third of those with serious mental illness and half of people with mental health conditions overall receive no care

Health and Recidivism 5 Relationship between criminal justice system involvement, high rates of recidivism and untreated mental health and SUD Drug overdose is the highest cause of death for individuals reentering the community Twelve-times higher risk of death in the first two weeks after release However, with access to care, health outcomes improve, and recidivism rates and costs to the correctional and health systems decline Findings from the Washington State study

Importance of the ACA to the Criminal Justice System: Coverage Expansions and Infusion of Federal Dollars 6 The ACA presents a huge opportunity to improve public health, increase public safety, and save states huge amounts of money The ACA dramatically expands health insurance coverage to millions of people In the 27 states expanding their Medicaid population, federal Medicaid will for the first time pay for non-disabled adults with no dependent children up to 138% FPL Huge federal investment: federal dollars will cover 100% of the costs for first 3 years, decreasing to 90 percent indefinitely Federal dollars likely create greater incentives in states and counties for systems reforms and collaborations Opportunities for reimbursement for enrollment activities

Enrolling Justice-Involved Individuals in Health Insurance and Linking them to Care 7 Opportunities at every intercept for enrollment and linkage to care Initial contact with law enforcement/emergency services Initial detention/initial court hearing With courts (including specialty courts) At reentry Community corrections Specific policies related to Medicaid financing for people in jails and prisons

A Little More on Medicaid State/federal partnership Within broad federal guidelines, states design and administer their Medicaid programs States and federal governments also share financing responsibilities Eligibility based on income, population group (children, pregnant women, parents, childless adults in expansion states), residency, and citizenship Current or past involvement in the criminal justice system does not affect an individual’s eligibility (although there is a payment exclusion for those who are incarcerated)

How is Medicaid Financed? Federal and state governments share Medicaid financing responsibilities For most services provided to most beneficiaries, the federal government pays between 50 and about 73% This is called the Federal Medical Assistance Percentage, or FMAP The FMAP in most states for services provided to the expansion population (childless adults and higher income parents up to 138% FPL) is 100% through 2016, and never less than 90% The federal government pays at least ½ of allowable administrative costs

Eligibility for the Criminal Justice Population The ACA’s Medicaid expansion with enhanced FMAP means improved opportunities to use Medicaid to help meet the needs of the CJ population Justice system involvement has no bearing on Medicaid eligibility or enrollment However, an exclusion applies to “payments with respect to care or services for any individual who is an inmate of a public institution (except as a patient in a medical institution.)”

Medicaid and Incarcerated Beneficiaries The “inmate exclusion” prohibits federal Medicaid payments for care provided to any individual involuntarily confined in state or federal prisons, jails, detention facilities, or other penal facilities As a result, states may not use federal Medicaid funds to pay for care provided to incarcerated individuals in most circumstances But Medicaid can pay for services when the incarcerated individual is a “patient in a medical institution” When they’ve been admitted as an inpatient in a community-based hospital, nursing facility, juvenile psychiatric facility, or intermediate care facility for at least 24 hours All medically necessary Medicaid covered services provided to that individual while admitted can be billed to Medicaid

Using Medicaid to Pay for Inpatient Care At least 14 states bill Medicaid for at least some eligible inmate inpatient care: Arkansas, California, Colorado, Delaware, Louisiana, Michigan, Mississippi, Nebraska, New York, North Carolina, Oklahoma, Pennsylvania, Vermont, Washington It’s saving states money: North Carolina saved $10 million in the first year (2011) California saved about $31 million in FY 2013 New York estimated in 2012 that it could save $20 million annually if the state billed Medicaid for eligible inpatient care The enhanced FMAP that’s now available can save expansion states considerably more money

Enrolling Eligible Individuals into Medicaid Most states terminate Medicaid when someone becomes incarcerated Not only is termination not required, but there’s no federal prohibition against screening for eligibility during incarceration HHS has clarified “corrections department employees…are not precluded from serving as an authorized representative of incarcerated individuals for purposes of submitting a (Medicaid) application on such an individual’s behalf.” Enrollment can and should happen at all stages of justice system involvement

Enrolling Eligible Individuals into Medicaid New York State is starting to enroll every eligible person in prison into Medicaid Coverage is suspended until it can be reinstated at discharge or when the beneficiary becomes a patient in a community-based medical institution Eliminates the need for the individual to apply or reapply for Medicaid when they’re released, ensuring continuity of coverage Eligibility screenings should at least be part of discharge planning

Medicaid can be used to finance care provided to eligible incarcerated individuals in community-based settings if individual is admitted as inpatient for at least 24 hours Enhanced FMAP means that the federal government will pay for all or almost all of the Medicaid costs for care provided to most justice-involved beneficiaries Medicaid enrollment and other administrative activities may qualify for at least 50% federal funding States have the opportunity to provide comprehensive benefits, including MH/SUD benefits Medicaid & the ACA: Enormous Opportunities for Criminal Justice

Medicaid Benefits for Expansion Population States are responsible for determining what Medicaid coverage for the expansion population looks like Benefits for the expansion population are determined differently from benefits provided to those who are traditionally eligible “Alternative Benefits Plans” Coverage may be very comprehensive or may look more like commercial health insurance

Importance of the ACA to the Criminal Justice System: Improved Coverage for and Access to Addiction and Mental Health Services 17 The ACA will dramatically improve coverage for and access to substance use disorder (SUD) and mental health (MH) services Under the ACA, SUD and MH services are essential health benefits which must be covered at parity (Mental Health Parity and Addiction Equity Act) with other covered medical benefits Requirements apply to most Medicaid and private insurance coverage; access improvements will apply to millions of people

Mental Health and Substance Use Disorder Parity Update 18 Final rule issued in November, will become effective for most plans in January Applies to all large group plans, plans in the ACA marketplaces, and non-grandfathered small group and individual market plans outside the exchanges Specific guidance for Medicaid and CHIP plans is forthcoming Previous guidance from 2013 embraced the general parity compliance analysis framework of the parity rule for private plans

Highlights of the Final Parity Rule 19 Builds on previous regulatory framework Six benefit categories Financial requirements and treatment limitations Additional detail about scope of services—all medical, surgical, MH and SUD benefits must fit into the benefit category framework for purposes of a parity analysis Specific discussion and implications for coverage of residential, intensive outpatient, and partial hospitalization services

Highlights of the Final Parity Rule (cont’d) 20 Additional guidance on limits due to provider specialty and geography (specific implications for methadone maintenance therapy), admission to provider networks, criteria to examine in determining whether provider rates meet parity Additional guidance on disclosure to participants and beneficiaries and contracting providers of medical necessity criteria and reasons for denials of reimbursement

Parity: What’s Next? 21 Final rule for commercial plans effective in July (will apply to most plans starting in January) Further guidance from CMS on how parity applies to Medicaid managed care plans, Alternative Benefit Plans and CHIP expected by the end of the year Additional state enforcement activity? Example of New York Attorney General’s work Huge continued need for education at the state level

Importance of the ACA to the Criminal Justice System: Improved Access to Care for People with Chronic Health Conditions 22 The ACA has a strong focus on creating incentives to help people with multiple chronic health conditions Section 2703 of the ACA created the new health home Medicaid option for beneficiaries with multiple chronic conditions. Health homes are meant to build on other care coordination models to create linkages to community and social supports, enhance coordination of physical health, mental health and substance use care, and to improve health outcomes for high-cost patients. Enhanced federal funding Huge opportunity to both improve health and reduce entry and reentry into the criminal justice system by getting people enrolled and linking them to care as early as possible Technical-Assistance/Health-Homes-Technical-Assistance/Health-Home- Information-Resource-Center.html

The ACA and Parity by the Numbers 23 8 million people signed up for private insurance in the Health Insurance Marketplace 3 million young adults gained coverage by being able to stay on their parents plan 3 million more people were enrolled in Medicaid and CHIP as of February, compared to before the Marketplaces opened 5 million people are enrolled in plans that meet ACA standards outside the Marketplace, according to a CBO estimate Approximately 60 million Americans have gained expanded mental health and substance use disorder benefits and/or federal parity protections

Medicaid & the ACA: Enormous Opportunities for Criminal Justice Opportunity to enroll millions of Americans in the criminal justice system into health coverage, thereby improving health and providing a huge infusion of federal funding to pay for care, reduce crime, and improve public safety Federal rules allow any eligible individual, including those who are incarcerated, to enroll in Medicaid coverage, and states that design systems to facilitate enrollment and retention can maximize health coverage and cost-savings

Potential steps to take: information-gathering, planning and collaboration 25 Determine your State’s process for insurance enrollment Specific policies and practices to enroll justice-involved individuals? Specific state law and/or policy on Medicaid suspension or termination for incarcerated people? Process for certifying agencies for enrollment activities state-based Understand the landscape of decision-makers and how to determine coverage options Did your state expand Medicaid? Which services, including MH and SUD services, will be covered? Is your state a Health Home state? Who is running your state’s Marketplace? Which Marketplace plans provide the strongest coverage options for people with complex health needs?

Potential steps to take: information-gathering, planning and collaboration 26 Convene or support a local planning process Critical need for health and criminal justice stakeholders to work together Role for the State Medicaid agency, the State health insurance exchange board and community care providers with corrections and other justice decision- makers and stakeholders Incorporate enrollment into your system Support enrollment at various points of contact; incorporate the application process into existing intake and screening processes Time the application process to coincide with transition planning Ensure that work to update and coordinate technology systems include court and corrections decision-makers Identify ways in which court-involved individuals can be better connected to community-based care Educate your colleagues and your clients about the benefits of the ACA

Factors Related to Linkage with Community-Based Care 27 Work to continue strengthening relationships with community- based providers Provider capacity and network adequacy—federal and state work Identify ways in which justice-involved individuals can be better connected to community-based care Continued importance of safety net funding to cover gaps Discussions related to the IMD exclusion Current focus on health information exchange and the federal confidentiality law 42 CFR Part 2 Educate your colleagues and your clients about the requirements and benefits of parity and health care reform Recent activity related to opioid addiction and overdose, addiction and the criminal justice system, and the legal barriers facing many people in recovery

LAC’s Field-Initiated Project with the Bureau of Justice Assistance 28

Helping the Criminal Justice Field to Maximize the Opportunities of the ACA 29 Determining the technical assistance needs and supporting a number of BJA’s grantees Review of the existing landscape Creating additional educational materials and practical tools to support enrollment and linkage to care and broadly disseminating them Providing assistance through TA calls, webinars, trainings, and workshops Compiling and disseminating concrete examples of successful practices and policies as well as barriers to implementation and ways of overcoming these barriers.

Questions and Discussion Gabrielle de la Guéronnière

The Winners' Circle Model 31 July 16, :00 – 3:00 p.m. EDT Winners' Circles are peer-led support groups for people striving to remain free from past drug use and criminal justice involvement. Winners’ Circles offer safe environments for former offenders to develop healthy lifestyles, learn and practice social skills, address problems that previously led to criminal activity, expand their networks of recovery associates, and offer encouragement and support to others. This presentation highlights the history, structure, and training on starting a Winners' Circle in your community. Presenter: Phillip Barbour