Supreme Court's Criminalization Of Homelessness May Face Impediments: Medicaid Waivers & Section 5121 of The Consolidated Appropriations Act of 2023

Highlighted Stories

Editor's Note

Following the Supreme Court’s decision in Grants Pass v. Johnson, many jurisdictions are increasingly using the criminal justice system to criminalize poverty, highlighting the failures of underinvestment in social services. In this decision, the Court allowed enforcement of a local ordinance that criminalized unhoused people camping in the municipality and effectively greenlit similar measures nationwide.

In response to this ruling, California Governor Gavin Newsom issued an executive order to “urgently address homeless encampments while respecting the dignity and safety of those effected.” But, as reported in the highlighted stories below, Los Angeles County Supervisors have resisted the urge to arrest their way out of the housing and service-delivery crises.

The relationship between unmet mental health needs, homelessness, and incarceration is well-documented. Justice-involved individuals are ten times more likely to be homeless, and HUD data shows that 21.1% of homeless people have a serious mental illness. Policies criminalizing homelessness do not address root causes and only reinstitutionalize individuals within the criminal justice system.

However, a significant shift may be occurring as jurisdictions begin to use Medicaid services within carceral facilities (through 1115 Waivers or the statutory requirements in the Consolidated Appropriations Act of 2023, Section 5121). This change introduces a new dynamic: Medicaid beneficiaries in jail bring with them a set of rights, including the right to be treated in the least restrictive setting appropriate to their needs, as established under the Americans with Disabilities Act and affirmed by the Olmstead v. L.C. decision.

Jurisdictions may mistakenly believe incarceration can address homelessness. They may be naively overlooking new legal complexities. Managed care organizations, community providers, health centers, and advocates will likely argue for services that prevent incarceration. Jurisdictions using the Grants Pass decision to conceal policy failures will most likely face new and complex legal challenges. The intersection of Medicaid rights, advocacy from health system players and disability rights attorneys, and potential litigation has significant potential to push against the use of incarceration for addressing homelessness, highlighting the legal and ethical complexities of this approach.

Criminalization of Homelessness

The Los Angeles County Board of Supervisors is scheduled to take up a proposal Tuesday reaffirming its policy against criminalizing homelessness — the latest response to a U.S. Supreme Court ruling allowing enforcement of anticamping laws. The five-member board is set to consider a motion clarifying that county’s jails “will not be used to hold people arrested due to enforcement of anti-camping ordinances” — an approach that is already in effect, according to Constance Farrell, spokesperson for County Supervisor Lindsey Horvath. The motion, co-authored by Horvath and County Supervisor Hilda Solis, calls for the county to distribute its encampment resolution guidelines, which emphasize a “care first” approach based on offers of shelter, to cities and other local jurisdictions.

Days after Gov. Gavin Newsom put pressure on local governments to dismantle homeless encampments across California, leaders in Los Angeles County showed a united front, unanimously passing a resolution with a clear message: We will continue to take a different approach. The vote on Tuesday by the board of supervisors, the five-member governing body of the county, reflected the deep motivation of local leaders to align themselves on strategy for a vast region that includes 88 cities and more than 75,000 homeless people. It also reaffirmed that homelessness would not be criminalized.

Medicaid

The Washington Health Care Authority has awarded the Kitsap County Jail a $2.25 million grant as part of its Medicaid Reentry Demonstration Project. The state hopes these services create a smoother transition for inmates as they return to their communities. For Kitsap County, being able to bill Medicaid will not only allow for an expansion of reentry services at its jail but stabilize funding for its Medication for Opioid Use Disorder program.

Only 15% of phone calls seeking psychiatric appointments for Medicaid patients resulted in an appointment in Los Angeles, the lowest percentage out of four cities in a “secret shopper” audit, researchers found. Los Angeles also had the longest wait times, with the median wait stretching 64 days — more than twice as long as in New York City or Chicago and nearly six times the median wait in Phoenix, secret shoppers found. Earlier research has found that psychiatrists are less likely than other physicians to accept Medicaid, a public insurance program serving people with low incomes.

BOP

Documents ordered unsealed by a federal judge included a special master’s report that detailed systemic abuse and inadequate medical and mental health care at the Federal Correctional Institution, Dublin. The report from the special master states: “Management’s failure to ensure staff adhered to [the Bureau of Prison] policy put the health, safety and liberty of [adults in custody] at great risk. It is unconscionable that any correctional agency could allow incarcerated individuals under their control and responsibility to be subject to the conditions that existed at FCI-Dublin for such an extended period of time without correction.”

Ethics

In 2002, when a 31-year-old incarcerated man in California received a heart transplant, it sparked a significant disagreement in medical communities and in the public about whether prisoners should be eligible to receive scarce resources. United States law requires “adequate” medical care for incarcerated individuals, and the United Network for Organ Sharing recommends that incarceration not be an absolute contraindication to transplant consideration. Another important consideration is that the incarcerated population is disproportionally made up of marginalized groups that have historically not received equitable care.

Incarcerated Women's Health Issues

Today, U.S. Senator Richard Blumenthal (D-CT) demanded better medical care for pregnant women in prisons at a hearing convened by the Judiciary Subcommittee on Human Rights and the Law entitled “Birth Behind Bars.” Today’s hearing followed the Subcommittee’s investigation into the abuse of pregnant women in prisons across the country.

Senator Jon Ossoff’s Human Rights Subcommittee says it’s uncovered disturbing and frequent abuse of pregnant women in the American prison system. One woman reported that her pregnancy was the worst nine months of her life. She described watching other women screaming for help while giving birth and ultimately having their baby with no help in hallways or bathrooms.

For incarcerated people experiencing menopause, the harm is great. As the country ages, so too does the incarcerated population, at rates even faster. In California, the share of those over age 50 increased five-fold in the span of less than a decade. Many women experiencing menopause must manage uncomfortable symptoms, but for incarcerated women, the environmental hazards of prison life—excessive heat and denial of fans, unhealthy food, harsh lighting, loud noises, lack of access to fresh air and sunlight, and limited opportunities to exercise—severely exacerbate these symptoms, reduce an individual’s ability to manage them, and significantly compromise their basic quality of life.

Opioid Epidemic

The N.C. Department of Adult Correction says it is putting resources into expanding access to medications for opioid use disorder to those who are incarcerated and those who are headed back into the community. Roughly 70 percent of the more than 31,000 people in North Carolina’s prison population is in need of treatment for some kind of substance use. New guidance from the U.S. Department of Justice issued in April 2022 on the Americans with Disabilities Act has put pressure on correctional facilities to provide medications for opioid use disorder. It’s now a legal imperative that correctional facilities keep an individual on medications to treat their addiction.

Climate Change

As scorching temperatures sweep across the country again this week, one group of Americans is living day-to-day with limited air conditioning and few options for staying cool: the 2 million men and women in state and federal prisons. These punishing heat waves, which are expected to intensify in frequency and severity because of climate change, pose what prisoner advocates say is a deadly danger to much of the nation’s incarcerated population. Legislation pending in Congress notes that 13 states in the South and Midwest lack universal air-conditioning requirements for their prison facilities, with 22 states lacking even policies on temperature regulation.

Prison Sites & Environmental Hazards

For decades, United States Representative Hal Rogers has worked to bring a new federal prison to his district in eastern Kentucky—specifically, at the site of a former coal mine in Letcher County. In September 2022, the Federal Bureau of Prisons (BOP) announced a plan to build a medium-security facility on the site. The proposed site has already been devastated by mountaintop mining, which has contaminated the air and waterways, destroyed forests, and increased the risk of flooding.In Kentucky and across the country, prisons are frequently built in the cheapest and most undesirable locations, which often means land that is on or near toxic waste—a practice that takes “life-threatening tolls on human health.”

After years of inaction by the Illinois Department of Corrections and the Illinois EPA that regulates it, a coalition of prisoner’s rights and environmental groups and other advocates are now taking their concerns to the federal government. On April 15, they filed a legal petition urging the United States EPA to take emergency action to address unsafe drinking water in Illinois’ correctional facilities that comes from aging and neglected plumbing. The petitioners are asking the EPA to use its “imminent and substantial endangerment” authority under the Safe Drinking Water Act to help protect as many as 30,000 incarcerated people.

State Roundup

Alabama

Six families, who had loved ones die in the state prison system, have filed lawsuits against the commissioner of the Alabama Department of Corrections and others, saying their family members’ bodies were returned to them missing internal organs after undergoing state-ordered autopsies. In one of the lawsuits, another family said a funeral home in 2021 similarly told them that “none of the organs had been returned” with their father’s body after his death while incarcerated.

A former corrections officer at an Alabama jail has agreed to plead guilty to a criminal charge in the death of a mentally ill man who died of hypothermia after being held naked in a concrete cell for two weeks. Tony Mitchell, 33, died on Jan. 26, 2023, after being brought from the jail to a hospital emergency room with a body temperature of 72 degrees (22 degrees Celsius), according to a lawsuit filed by his mother. Prosecutors wrote in the plea agreement that Jones admitted that “collectively we did it. We killed him.”

Connecticut

Records state officials fought for years to keep secret what type of health care was provided to people incarcerated in Connecticut while UConn Health provided prisoners with medical care. The newly-released internal review of cases completed by a medical official at the Connecticut Department of Correction was reluctantly released last month by state officials nearly four years after a federal judge ordered the state to stop its “willful” delay in turning over records and being ordered to pay $22,000 in taxpayer dollars for its noncompliance.

Mississippi

Inside the sole unit without air conditioning at Mississippi’s largest prison, inmates hang wet sheets from their cell ceilings to dampen the air and lay drenched towels strategically across their bodies. Inmates in Unit 29 at Mississippi State Penitentiary in Parchman say they are sweltering inside cells where temperatures can easily climb into the triple digits. The issue drew the scrutiny of the U.S. Justice Department four years ago, but despite efforts to upgrade the prison, inmates say the situation has not improved.

Nevada

Three inmates have died and nine others were transported for medical treatment as a result of an “altercation” on Tuesday at a maximum-security prison in a rural mining city in eastern Nevada, the state's Department of Corrections said. Ely State Prison is the only maximum-security prison in Nevada. In December 2022, several inmates held a hunger strike over what advocates and some family members described as unsafe conditions and inadequate food portions.

Oklahoma

The Oklahoma County Criminal Justice Authority, which operates the Oklahoma County Jail, has filed a lawsuit against the State Department of Health, claiming they do not have the power to conduct unannounced jail inspections. The petition was filed this week and comes after the jail failed two unannounced health inspections by the State Department of Health this summer, OSDH says the jail denied the inspection due to a lack of staffing but officials with the Oklahoma County Jail say that is not true (see last week's Editor’s Note ).

Two of Oklahoma’s top state officials are at an impasse over how to settle a class action lawsuit that accused the state of not providing timely mental health services to people awaiting services in county jail (see Editor’s Note, June 25 ). A proposed consent decree from Attorney General Gentner Drummond and the plaintiff’s legal team includes calls for more staff and training and are aimed at reducing the wait times for appropriate health care. The proposal, however, faced immediate pushback from the governor, who along with a top health department official, said he “did not and will never agree to have Oklahomans foot the bill for a bad legal settlement.”

Oregon

The Multnomah County Sheriff’s Office confirms last week's inmate death is the first one of this year. The death is reigniting concerns over staffing and safety. A new report released earlier this month by the National Institute of Corrections shows so far in 2024, there have been 15 overdoses requiring transport to the emergency room. From 2022-2023, ten inmates died while in custody at the Multnomah County Jail or Detention Center. Overdoses caused four, and at least two have been linked to fentanyl.

Texas

The mother of a man who died in Tarrant County Jail custody of a drug overdose has sued the sheriff's office, alleging the county fails to effectively prevent drugs from reaching people in its jails. Court documents allege the county also has a pattern of disregarding medical and mental health issues people in-custody face. According to the lawsuit, Tarrant County allegedly has a "de facto" policy of failing to prevent prohibited items into the jail.

Washington State

An incarcerated man with epilepsy had his ant-seizure medication halved when he was transferred to Monroe Correctional Complex. Although he contacted the prison medical provider explaining that his medication — at its previous dose — was the only thing keeping his condition in check, the dosage of his medication was not increased. Even when the man’s seizure started to reoccur, no action was taken to modify medication dosage.

Correctional Health Care Vendors

CFG Health Systems

Onondaga County (NY) is firing its jailhouse healthcare provider next month and bringing in a new company — the third in less than two years. Onondaga County will make the switch to CFG Health Systems on Sept. 1 after dissatisfaction with its current provider, Wellpath. Wellpath was in the middle of a three-year contract signed at the beginning of 2023. It replaced NaphCare, another jailhouse health provider, which left town following a scathing report by the state’s Commission on Correction. The new provider, CFG Health Systems, has hardly been immune to controversy. In fact, a New Jersey county fired CFG several years ago due to a rash of deaths at its jail.

Turn Key

As local jails have morphed into some of the largest mental health treatment facilities in the U.S., many counties have outsourced medical care to private companies that promise to contain rising costs. Turn Key is one of the fastest growing in the middle of the country. At least 50 people who were under Turn Key’s care died during the past decade. In dozens of cases, Turn Key employees didn’t send people to the hospital when they were in crisis, catatonic or refusing to eat or drink. In Norman Oklahoma one woman who was detained in jail after a mental health crisis died on the floor of her cell. An an off-site Turn Key nurse practitioner suggested giving the woman Gatorade before her death.

Wellpath

A man who worked as a custody officer for Wellpath Recovery in Columbia is facing charges from the state. South Carolina Law Enforcement Division charged Jaquon Malik Benton, 27 with abuse of a vulnerable adult. While working as a custody officer, Benton is accused in a SLED warrant of shoving a resident at a medical facility into a counter.

The County of Monterey and its health care contractor in the jail, Wellpath, continue to be “substantially” out of compliance with the terms of a 2015 settlement, according to a neutral third-party monitor’s report. In advance of an Aug. 1 court date where Wellpath could face fines, its attorney is questioning the validity of the monitor’s data. The most recent medical monitor report, filed by Bruce Barnett found that those incarcerated were not timely screened for sexually transmitted diseases – estimating that half of the people booked into jail during those two months were screened – and chronic medical conditions were not consistently addressed. In addition, staffing was inadequate to meet the demand for services.