April 4, 2024
Dear Colleague:
Last week, I had the pleasure of attending public and private meetings to discuss the significant changes to the requirements for jails and prisons that aim to support individuals receiving methadone for opioid use disorder (OUD) within their facilities. I wanted to share insights from this meeting and describe how these changes fit within the current constellation of opportunities to improve and finance care for people involved with the justice system. These changes provide a preview into how the federal government will be relying on disparate state regulatory environments to ensure access to care and financing for the significant changes ahead.
The meeting focused on the Substance Abuse and Mental Health Services Administration (SAMHSA) final rule that became effective on April 2, 2024. This new rule modifies the requirements for jails and prisons wanting to offer methadone to individuals with OUD. Previously, a facility had to become an “Opioid Treatment Provider” (OTP) to offer methadone treatment. Under the new rules, facilities can now provide methadone by registering with the Drug Enforcement Agency as a “Hospital/Clinic.” This change eases the federal restrictions on methadone provision, but shifts the burden to states to license these facilities in a way that allows them to register as a “Hospital/Clinic” with the DEA.
SAMHSA’s reliance on state regulatory structures provides a preview of how the federal government will manage the transition away from correctional markets with disjointed regulations toward a future that will create new rights for incarcerated people and new responsibilities for state and local jurisdictions.
Since the Supreme Court case Estelle v. Gamble in 1976, carceral facilities are required not to show “deliberate indifference” to the “serious medical needs” of incarcerated individuals. This standard has underpinned significant legal decisions governing care for incarcerated people and caused some states to create regulatory structures to oversee care in these facilities. These regulatory systems, where they exist, are likely to be drastically different from the regulatory structures of community health systems.
Although the federal government has left regulating jails and prisons to state and local authorities, the federal government is increasing its enforcement of the Americans with Disabilities Act against jurisdictions that refuse to continue MOUD for incarcerated individuals. With the new SAMHSA rule, more jurisdictions could be empowered to meet the statutory requirements created by the ADA, but may still face a state regulatory environment that makes delivery of MOUD impossible. Jurisdictions like Allegheny County, PA, and Kentucky have recently settled with the DOJ over ADA requirements to continue MOUD treatment, but it is unclear how small, rural counties will be able to meet state regulatory requirements and avoid federal enforcement.
States face even more regulatory burdens as they are preparing to implement major statutory changes to the Social Security Act passed in the Consolidated Appropriations Act of 2023. The law requires screening and case management plans for Medicaid-and-CHIP-eligible juveniles up to 30 days before release from a jail, prison, or juvenile justice facility, creating new rights for detained individuals and new responsibilities for states and jurisdictions. Currently, there is no federal guidance on how these plans are supposed to be written or implemented. States must create a plan to align with the statutory change that goes into effect January 1, 2025. As 2025 comes around, satisfying Medicaid’s federal and state regulatory framework will require harmonization with the state regulatory environment that has developed around correctional systems in absence of collaboration with state health systems.
There are, thankfully, incentives to reexamine the regulatory field and invest in the infrastructure necessary to carry out some of these changes. A significant number of states are using Medicaid 1115 waivers to thoughtfully plan and redesign service delivery in carceral settings, securing crucial financing for these changes, but implementation will require harmonization of state correctional and health policy to meet the goals of the program, or, again, face federal consequences. These waivers do offer federal funds to support these efforts, and the recent Consolidated Appropriations Act of 2024 provides substantial federal grants to jurisdictions aiming to improve connections between community and correctional settings.
For the past 60 years, many carceral agencies have rarely communicated with agencies outside of the carceral silo, exacerbating the mental health and SUD crisis both inside and outside correctional facilities. As the federal government looks to states to improve the regulatory field in a way that satisfies the federal government, the consequences for failure will be costly. The investments and financing available through 1115 waivers and new federal grants present an opportunity for jurisdictions to proactively design systems that meet people’s needs, harmonize discordant state and local regulations, and reduce the reliance on enforcement actions from the DOJ and health law attorneys working to improve care—but only if we can marshal your support in ensuring these changes are lasting and meaningful.
The pace of change in correctional health is unprecedented. We look forward to assisting you as you navigate these significant changes, aiming to create a more just and healthy system for all.

Sincerely,
Dan Mistak, MA, MS, JD
Acting President
Director of Health Care Initiatives for Justice-Involved Individuals
2023 Atlantic Fellow for Health Equity