Medicaid Grievance Rights In Corrections; CMS Guidance: Medicaid & Chip Services For Incarcerated Youth; New Mexico 1115 Approved

Highlighted Stories

Editor's Note

This week's highlighted stories from Oklahoma City and New York City focus on the tension between perceived security needs of a correctional facility and health care protection of the individuals that are incarcerated within these facilities.

Familiar to our subscribers is the long running battle between Oklahoma’s State Department of Health and the Oklahoma County jail to allow inspectors into that facility with no advanced notice. The Oklahoma County District Attorney’s Office claims the State Department of Health does not have the authority to conduct unannounced inspections of the jail; the State Department of Health says that state statute gives it this right.

Also familiar to our subscribers are stories about the health care of people incarcerated at Rikers Island in New York City. The second highlighted article talks about the unfortunate death of a 23-year-old woman in that facility. It is reported that correctional officials prevented health care personnel from examining her. The cause of the woman’s death appears to be attributed to scarlet fever.

This is not the first time that we have included stories in the Weekly Update that discuss the tension between security needs and individual health needs. We are highlighting these stories from Oklahoma and New York City because we want to again go back to how Medicaid grants rights to individuals, and those rights allow for a grievance to be filed with due process that is not necessarily adjudicated by correctional personnel the way the process has existed up until now. The next several years as 1115 Waivers are approved and scaled, will determine the extent to which granting due process rights to individuals can resolve or exacerbate this historic tension between correctional facilities and those trying to protect patients' health.

On the Medicaid 1115 waiver front, New Mexico has announced that its waiver to provide Medicaid coverage within corrections has been approved by CMS. And CMS in a “Dear State Health Official” letter has issued guidance on statutory requirements in the Consolidated Appropriations Act of 2023 (see COCHS’ FAQ) concerning provision of Medicaid and CHIP services to incarcerated youth. Of note is that states will need to submit Medicaid and CHIP state plan amendments (SPA) with an effective date no later than January 1, 2025. So, the above mentioned tension between perceived security needs of correctional facilities and due process rights of Medicaid beneficiaries may come to a head before the 1115 waivers have been implemented.

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Tension Between Security & Health

The Oklahoma State Department of Health has issued an order requiring the Oklahoma County jail to allow inspectors into the facility with no advanced notice. The Health Department filed an administrative compliance order July 15 against the jail and the trust that manages it, the Oklahoma County Criminal Justice Authority. This follows two attempts at surprise inspections from the Health Department where inspectors were denied entry. In the order, filed with the Office of Administrative Hearings, the Health Department demanded the jail to comply with the next unannounced inspection or administrative penalties will follow. The Oklahoma County District Attorney’s Office said the Health Department does not have the power to do unannounced inspections. The Health Department responded with a letter that said state statute gives inspectors this power.

Charizma Jones died this July from a lingering case of suspected scarlet fever. However, supporters of the Riker’s Island inmate in New York City believe jail staff failed her by blocking medical help. The Legal Aid Society sent a letter on July 22 to the New York City Board of Corrections regarding Jones’ death. The document detailed how Jones laid in her infirmary jail cell for two days with no assistance, despite showing signs of the disease. In May, Correctional Medical Services tried multiple times to treat the young woman. However, Riker’s staff blocked the attempts to do so, deeming Jones a “security risk” for allegedly assaulting a corrections officer.

Medicaid Update

With a focus on expanding coverage to address health-related social needs and subject to legislative funding, New Mexico will be able to offer services that, to date, have not typically been covered by Medicaid, and use innovative service delivery systems that improve care, increase efficiency, and reduce costs. The Justice Involved Reentry project will connect eligible adults and youth to health care services up to 90 days prior to their release from youth detention, prison, or jail. By providing health care services, New Mexico aims to reduce Emergency Department visits, overdose-related deaths, and inpatient hospitalizations among this population.

In July, the Centers for Medicare and Medicaid Services (CMS) approved seven new Reentry Section 1115 Demonstrations in Illinois, Kentucky, New Hampshire, New Mexico, Oregon, Utah, and Vermont. These states join California, Massachusetts, Montana, and Washington in obtaining federal approval to implement innovative coverage and care delivery models to provide targeted Medicaid-covered services to Medicaid-enrollees before they are released from carceral settings. Reentry Section 1115 Demonstrations continue to be a high priority for both CMS and states.

CMS is issuing guidance to address the statutory requirements in the Consolidated Appropriations Act, 2023. States will need to submit Medicaid and CHIP state plan amendments (SPA) with an effective date no later than January 1, 2025, to implement the required coverage described in section 5121 of the CAA, 2023. In the 30 days prior to release (or not later than one week, or as soon as practicable, after release from the public institution), and in coordination with the public institution, the state must provide any screenings and diagnostic services which meet reasonable standards of medical and dental practice. In the 30 days prior to release, the state must provide screening, diagnostic, and case management services otherwise available under the CHIP state plan.

BOP

Today, President Biden signed into lawThis is an external link the bipartisan Federal Prison Oversight Act, historic prison reform legislation to overhaul independent oversight of the Federal Bureau of Prison’s 122 facilities nationwide by mandating routine inspections of all facilities by the DOJ Inspector General and establishing a new Ombudsman to investigate the health, safety, welfare, and rights of incarcerated people and staff. The Senate bill was co-sponsored by Sens. Joe Manchin (I-WV), Shelley Moore Capito (R-WV), and Tim Kaine (D-VA).

U.S. Senator Joe Manchin (I-WV) applauded President Biden signing his bipartisan, bicameral Federal Prison Oversight Act into law. Senator Manchin cosponsored this legislation to create a new oversight structure to ensure greater transparency, safety and accountability in federal correctional facilities. This prison reform legislation will overhaul independent oversight of the Federal Bureau of Prison’s (BOP) 122 facilities nationwide by mandating routine inspections of all facilities by the Department of Justice (DOJ) Inspector General and establishing a new supervisory body to investigate the health, safety, welfare and rights of incarcerated people and staff.

COVID-19

This toolkit assists in reporting on deadly systemic failures and analyze the pandemic as a case study of how facilities can prepare for the next crisis. It contains data and resources about prison mortality at the height of the COVID pandemic. Every state and facility has its own unique story to uncover regarding how COVID affected incarcerated people and prison staff including critical issues like prison staffing, health care, and release policies.

HIV

The use of telemedicine has grown significantly since the COVID-19 pandemic and has the potential to improve access to specialized care for otherwise underserved populations. Incarcerated people living with HIV (PLWH) could potentially benefit from expanded access to HIV care through telemedicine. All PLWH who were incarcerated within the Tennessee Department of Corrections and received care through the HIV telemedicine clinic at Regional One Hospital. Of the 283 incarcerated PLWH receiving care from this telemedicine clinic, 78% remained retained in care and 94% achieved or maintaining viral suppression at 12 months.

Opioid Epidemic

Buprenorphine maintenance treatment remains unavailable in most jails in the US. This study provides data on a four-day rapid sublingual buprenorphine induction strategy followed by a weekly dose of extended-release injectable buprenorphine with incarcerated individuals with opioid use disorder who were not opioid tolerant. This study provides important data to illustrate a dose induction strategy that might assist in reducing illicit diversion in jails, which is a main barrier to buprenorphine delivery cited by correctional administrators.

A few times a month, a team of health care workers stands in front of inmates at the New Orleans jail, quizzing them about the signs of overdose. When the training ended, the inmates left knowing how to use Narcan, an overdose reversal nasal spray that blocks the effects of opioids in the brain. Dr. Anjali Niyogi, founder of the Formerly Incarcerated Transitions Clinic, knows the information about overdoses could save a life once the inmates reenter society. But she also hopes the session, conducted with community health workers who have been incarcerated themselves, will be a gateway to a better life.

Caleb Kenowski was one of eight people to die in custody at the Pima County Jail in 2023. Five of the eight deaths last year had drugs as a factor, according to the Medical Examiner's Office, meaning that an inmate had drugs in their system at the time of death or a history of substance abuse. Four of those deaths, including Kenowski’s, involved fentanyl. The place is porous,” said a former doctor who worked at the jail, who asked not to be identified. Body scanners were installed in the jail in 2018 to detect contraband during intake, but many COs have not received the special training required to operate the scanners.

One inmate died and another inmate was revived after a suspected fentanyl overdose occurred Friday at the Sacramento County Main Jail, marking the fifth death of an incarcerated person in sheriff’s jail custody in nearly three months. The Sacramento County Sheriff’s Office announced late Friday that guards responded around 11:15 a.m. to an eighth-floor cell in the downtown facility and found two unresponsive cellmates. Narcan was also administered to both inmates multiple times, as staff continued first aid until Fire Department personnel arrived.

An inmate has died after having a medical emergency and falling ill while being detained at Alvin S. Glenn Detention Center. Now, the sheriff's office is reporting that this is another opioid-related death. Another inmate, 56-year-old Robert L. Moore of Columbia, was also found unresponsive in his cell on July 9. Authorities have not released the name of the latest inmate who died, but Sheriff Lott said the death also appears to be tied to drugs, and his deputies are investigating.

Climate Change

The family of an incarcerated man who died in custody of the Georgia Department of Corrections is suing the agency over negligence. Juan Carlos Ramirez Bibiano was 27, and allegedly died from heat exposure. His death was first documented publicly in a Facebook page. Many people with loved ones in prison rely on forums like social media for information about prison conditions. Only a quarter of Georgia prisons — there are 34 in the state — are fully air-conditioned as of 2022.

As daily temperatures hit record highs across much of the South, a federal judge took an unusual step, challenging the treatment of mostly Black incarcerated workers in the fields. In September, several incarcerated workers along with the New Orleans-based advocacy group Voice of the Experienced filed a class-action lawsuit calling for an end to the farm line and accusing the state of cruel and unusual punishment. But as temperatures soared in May, the men asked the court in an emergency filing to stop work during extreme heat.

John Castillo was passed out. His breathing was shallow. Prison staff rushed him to the medical unit, where they tried CPR and dosed him with epinephrine. But Castillo was dead at 32. The Hughes Unit in Gatesville, about an hour outside Waco, is one of dozens of state prisons that lack full air conditioning. On the day in August 2023 when Castillo was found unresponsive in his cell, the indoor temperatures there topped 94 degrees. The autopsies of several prisoners, including Castillo, mentioned heat as a possible contributing factor in the inmates’ deaths.

Men inside the Stateville Correctional Center (IL) were hoping for change after Michael Broadway, 51, died in custody on June 19. The days before Broadway’s death were some of the hottest in June, with the heat index in nearby Joliet reaching 100 degrees on June 17, according to weather data. The day of his death, Broadway, who had severe asthma, began struggling to breathe.

Topics In Criminal Justice

Mayor Eric Adams declared a state of emergency in New York City jails on Saturday and issued an executive order that blocked key parts of a local law that would have banned solitary confinement in the jails. The order, one of three Mr. Adams issued on Saturday that pertained to the jails, was an unusual step that came only one day before the law was set to go into effect.After Mr. Adams vetoed the bill in January, arguing that it would make jail staff and detainees less safe, the Council issued a rare override of his veto.

Children with a family history of incarceration are more likely to be diagnosed with physical and mental health conditions than other kids, a recent analysis suggests. Published in Academic Pediatrics, the study looked at 11 years’ worth of electronic health records from Cincinnati Children’s, analyzing over 1.74 million unique patients under age 21 years. It sheds light on the ripple effects of mass incarceration. Researchers searched the records for keywords such as “incarcerated,” “parole” and “jail” for signs of justice system involvement, and then compared the records of patients with a justice keyword in their chart with those of demographically similar patients.

The argument against prisons can be made as a question of right and wrong, or as a question of effective and ineffective policy. Mass incarceration remains a distinctively American problem. The current system of American imprisonment does reflect the specific circumstances of American life and, in particular, the long wake of Reconstruction. The argument that incarceration is a mechanism that preserves racial hierarchy is unhappily convincing. In response, a movement has begun for the abolition of prisons—not for prison reform, with fewer inmates in better institutions, but for the outright elimination of incarceration.

In the early days of the pandemic in 2020, traffic stops by the police plummeted around the country, as fewer cars were on the road and as agencies instructed officers to avoid nonessential contact with the public. But in the months and years that followed, a distinct pattern formed in many cities: The cars came back in full force, but the traffic enforcement didn’t. This decline accelerated a shift that began in many places before the pandemic, suggesting that the police have pulled back from a part of their job that has drawn especially sharp criticism.

State Roundup

Arizona

In the last few years, Pima County Jail inmates have died at some of the highest rates in the country. The 2019 national local jail mortality rate was 167 deaths for every 100,000 inmates, according to the most recent data from the Bureau of Justice Statistics. In 2022, Pima County’s rate was 656.8, nearly four times higher than the national rate. It’s also four times as high as the rate at Chicago’s Cook County Jail, and higher even than the rate of deaths at New York City’s infamous Rikers Island.

Arkansas

Gavin Lesnick, a spokesman for the Arkansas Department of Human Services, said as of July 19 there were 168 people who have been found not fit to proceed to trial and are on the waiting list for the State Hospital. The number includes people in jail and out on bond. He said 361 people are waiting in jails for a fitness-to-proceed or criminal responsibility evaluation. Lesnick said 22 people in the Washington County Jail are on a waiting list, 13 from Benton County, 10 from Sebastian County and three from Carroll County.

California

Covid-19, mumps, and chickenpox outbreaks. Contaminated water, moldy food, and air ducts spewing black dust. These health threats have been documented inside privately run immigration detention facilities in California through lawsuits, federal and state audits, and complaints lodged by detainees themselves. But local public health officers who routinely inspect county jails and state prisons say they don’t have the authority under state law to inspect detention centers operated by private companies, including all six federal immigration centers in California.

Five inmates in the San Mateo County Jail have died since Sheriff Christina Corpus took over in January 2023, and now a mental health advocacy organization is calling for an independent review of these deaths. Of the five inmates who died, two died in suicides, two were drug-related and one person was killed by cancer.

Court-appointed experts will no longer monitor inmate medical care in San Bernardino County jails under an agreement between the Sheriff’s Department and a prisoner rights nonprofit that alleged civil rights violations in a class-action lawsuit. U.S. District Court Judge Jesus G. Bernal in Riverside approved the agreement between the Sheriff’s Department and the Berkeley-based Prison Law Office on July 15. The plan required the Sheriff’s Department to improve mental health and dental care for inmates as well as its use-of-force policy for correctional deputies, and to bring the jails into compliance with the Americans with Disabilities Act.

Florida

A 46-year-old man awaiting transfer to a mental health facility died in the Duval County jail this week. Timmothy Elwin Wright was deemed incompetent and was sentenced to go to a mental health treatment facility. Officers found Wright unresponsive in his cell and could not revive him. He was pronounced dead just after 6 a.m.

Georgia

Eight deaths have occured in Central Georgia prisons over the past two months. One of them was 27-year-old Zachary Olivar. His parents reported that mental health issues in their family were hereditary, and Zachary's older brother showed signs before he had his first episode. They believe there's a lack of mental health care in prison, and if addressed, could have saved his life and others.

Louisiana

Several months ago, in a lawsuit that was in its ninth year, a federal judge blasted the medical care at the Louisiana State Penitentiary at Angola. Many inmates hoped it would be a watershed moment. In her opinion, U.S. District Judge Shelly Dick excoriated the state for its “callous and wanton disregard” for the health of those in its custody. She then ordered the appointment of three independent monitors to devise and implement a plan to reform the system. That plan, however, may never come to fruition. Before those monitors could even be chosen, the state appealed the ruling, invoking a federal law — the Prison Litigation Reform Act — that hobbled a similar lawsuit over Angola’s health care nearly 26 years ago.

Michigan

Gov. Gretchen Whitmer signed a law Tuesday that would make it easier for people to be released from Michigan prisons if they're in debilitating health and considered to be a minimal risk to the public. The new law replaces a 2019 law that was seen as vague and hard to apply. Only one person had been released, according to FAMM, an advocacy group that works for changes in criminal justice systems across the country.

North Carolina

A split federal Appeals Court panel ruled Thursday that a trial judge’s order could force the North Carolina Department of Adult Correction to reconsider a prison inmate’s requested sex-change surgery. The department had initially rejected the surgery for Kanautica Zayre-Brown as “medically unnecessary.” US District Judge Max Cogburn ruled against the department. Then Cogburn issued a July 12 order denying the state’s request to stay the ruling during an appeal.

Oregon

Over the next year, developers hope to turn a vacant lot off Southeast Lancaster Drive into a place that will give behavioral health patients a supportive place to get treatment. Oregon is short about 171 beds to serve people court-ordered to receive treatment, according to a recent statewide study. A lack of community treatment options is a persistent problem for Oregon courts and judges, who often have few options besides the overcrowded Oregon State Hospital to send people who need mental health care.

Washington State

A woman incarcerated at the Snohomish County Jail in Everett was found dead Wednesday, the sixth death at the jail since September. The woman was booked into the jail Monday by the Monroe Police Department and was being for possession of a controlled substance. Of the completed fatality reviews submitted to the state and Legislature in the past year regarding the Snohomish County Jail, all state that Jail Health Services “did not identify issues or problems with policies/procedures, training, facilities/equipment, supervision/management, personnel, culture, or other variables related to the deaths.” In March, the Snohomish County Council approved about $350,000 in funding for a feasibility study on placing a secure detox facility in the jail.

An analysis found that nearly a third of the approximately 5,000 people released from Washington prisons in fiscal year 2023 were held beyond their earned release date, which takes into account good behavior and credit for time served in county jails before their conviction. The median delay was roughly a month, but some delays stretched well over a year — making it difficult for inmates trying to plan their new lives and costing taxpayers millions. Inmates held beyond their earned release date often watch their carefully laid plans for employment, housing and support networks collapse, dimming their prospects of a successful return to society.

Technology

Children who have a parent incarcerated in Franklin County will not see their parent in person until release. This is true for the Jackson Pike Corrections Center and for the new James A. Karnes Corrections Center. The Franklin County Sheriff’s Office (OH) eliminated in-person visits in August 2022 and implemented video calls through a company called Viapath Technologies. In announcing the change, the Sheriff’s Office said that each incarcerated person would be given two 20-minute calls each week “for free,” as if it’s some kind of gift. Any additional video calls must be purchased through Viapath.

Correctional Health Care Vendors

Wellpath

The Arkansas Board of Corrections on Friday approved a $1.5 billion medical contract with WellPath. The contract extends the company’s long relationship with the state prison system to provide medical services to inmates for the next 10 years. The first year of the contract is expected to cost nearly $128.5 million; by 2034, the annual cost is expected to be more than $179 million.

NaphCare

A fund transfer of $948,000 of human services levy funding will be going to the Montgomery County Jail for behavioral health services after being on hold for more than a month. The Montgomery County Alcohol, Drug Addiction and Mental Health Services (ADAMHS) board put off voting on that transfer of funds when board member Sherry Gale voiced concerns last month about the level of care provided by NaphCare, which provides both medical and behavioral health to people incarcerated in the jail. There have been concerns from the community over jail deaths.