Major Blow To MIEP

Major Change To Medicaid "Inmate Exclusion" Policy
February 02, 2023
Dear Colleague:
Last week, the Centers for Medicare and Medicaid Services approved California’s first-of-its-kind waiver of the so-called “inmate exclusion.” It is impossible to overstate the impact of this waiver on our justice and health systems. For people involved with the justice system, an arrest has long meant a loss of access to community supports, treatments, and high-quality healthcare. For our health systems, the jails have provided a constant frustration of efforts to provide a system of support that meets people where they are. With the approval of California’s waiver, we have now moved into the future where these challenges are reduced and high-quality, connected care will be the expectation.
Specifically, this waiver would:
  • Provide a set of services 90 days before release from a jail, prison, or juvenile-justice facility, including in-reach case management services, physical and behavioral health clinical consultation services, laboratory and radiology services, medications and medication-assisted therapy for all types of SUD—including counseling, and community health workers and community navigators with lived experiences;
  • Create a “coordinated community reentry process” to assist in access to housing, social supports, and community providers; and
  • Reinvest the savings created by this waiver into efforts to improve quality of care for incarcerated people and programs to avoid reincarceration.
Many states currently have similar waivers before CMS, and the closer that other states’ waivers align with California’s waiver, the faster review and approval by CMS can be achieved.
These are not the only major events at the intersection of health and justice. The passage of this waiver comes on the heels of the recent changes to the Social Security Act, which require the Medicaid system to offer screening, diagnosis, and case management services for eligible sentenced, incarcerated juveniles thirty days before release and allows states to maintain Medicaid benefits for juveniles being held pre-trial. On the same day that this waiver was approved, the Assistant Secretary for Planning and Evaluation (ASPE) of the Dept. of Health and Human Services provided a briefing to Congress on promising practices for transitioning people from jail to the community. In the near future, CMS will offer guidance to Medicaid directors on best practices for 1115 waivers and the Medicaid and CHIP Payment Access Commission (MACPAC) will be providing insights into the unique transition of care from jails and prisons to the community. Suffice it to say this federal attention signals a tectonic shift in our nation’s expectations for the quality and connectedness of correctional healthcare.
Now that this new future is upon us, there are significant questions that we must grapple with. Who will be the providers of this care? How will technology systems identify who is an eligible beneficiary? How can services be offered in alignment with the expectations of Medicaid? What role will managed care play in carrying out these expectations? How will care in the jail be woven into a future of integrated primary care, behavioral healthcare, and specialty care? What is the status of judicial review of incarcerated people’s rights given the federal government’s clear intent to regulate county and state correctional systems? These are not simple questions, but neither was achieving these major regulatory and statutory changes.
We would not be at this moment without your continued interest in making these changes. We sincerely thank you. As the nation’s leading nonprofit dedicated to making these changes happen, COCHS will continue to explore these issues with you. Together we look forward creating a system that brings correctional healthcare out of the shadow and into a more just future.

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