CMS Guidance

May 04, 2023
Dear Colleague:
From its inception, COCHS has worked to overcome the barriers created by jail walls in order to improve the care that justice-involved people receive, wherever they need it. Our community and our correctional health systems have been severely hampered by discontinuities in care as some of the most in-need people move from community to correctional systems and back again.
One of the main drivers of these discontinuities is the so-called “inmate exclusion” found in the Medicaid statute, which frustrates attempts to leverage the considerable power of Medicaid to create responsive systems that could counteract some of the biggest health and social challenges we face. In a truly watershed moment, the Centers for Medicare and Medicaid Services provided states with guidance that would allow states to create 1115 Medicaid waivers that will improve access to high-quality Medicaid services, even during incarceration.
This guidance provides states with a significant flexibility in how a state could improve the care and coordination that happens in correctional settings. Some of the key components of the guidance include:
  • Services up to 90 days before release;
  • Flexibility in deciding which services can be offered in correctional facilities, but all submitted waivers must include:
    • Medication assisted therapy
    • Case management
    • Thirty days of bridge medication
  • Opportunities for states to finance the required improved technical systems required to make these waivers possible; and
  • The requirement to reinvest the state and local savings into improved systems to divert and treat people involved with the justice system.
These flexibilities are reason to celebrate, but we face significant challenges in realizing this opportunity’s full potential. States who are interested in fully leveraging this waiver will have once-in-a-lifetime opportunities to fundamentally change how the health and justice systems operate in their states and counties. These state policies, however, will require local jurisdictions to create policies that both meet the state’s negotiated waiver and the needs of the local community. These policies will require significant technical infrastructure to implement.
Translating federal guidance to local practice is particularly challenging given the historic lack of coordination and communication between health and justice agencies at the federal, state, and local levels. Here are three important considerations that will shape how this guidance is realized:
  • First, because of the longstanding gulf between community and correctional health, who will be able to provide the services that CMS envisions? Federally qualified health centers (FQHCs), Rural Health Clinics (RHCs), and Certified Community Behavioral Health Clinics (CCBHCs) would be ideal providers, but will they be able to overcome the significant challenges that limit their capacity to operate in correctional facilities? If not a community provider, will correctional health providers elevate their quality of care and step into the future?
  • Next, jails and prisons will need to create the technical infrastructure and policies necessary to identify existing Medicaid beneficiaries and ensure timely enrollment if not. How will states and local jurisdictions implement the significant changes necessary to meet the expectation of the guidance?
  • Finally, and most importantly, we need to ensure that these services actually work for the people involved with the justice system. For example, “case management” can be defined in a variety of ways, but how do we ensure that the case management provided under a waiver appropriately fits an individual’s needs and is provided in a culturally competent way that avoids criminalizing health conditions?
Ensuring a successful implementation of the guidance will require answering these, and many other questions.
COCHS has had the honor of playing a role in making this guidance a reality. In 2015, we wrote an Action Paper, Addressing the Disparate Impact of the Federal Response to the Opioid Epidemic, on the need to ensure that Medicaid covers services for incarcerated people. We have worked since then to build a coalition of health and justice stakeholders who understand the need to allow for Medicaid to play a larger role in coordinating care for people leaving corrections. We had the pleasure of serving as key stakeholders as the last three administrations worked on these issues. We currently look towards a future beyond the inmate exclusion.
This guidance would not have been possible without the help of many of you. For that, we are eternally grateful. Now that states can apply for these waivers, we move one step closer to creating a health system that can provide access to high-quality care, wherever people receive it. We look forward to the opportunity to continue this work with you as it moves from policy to practice.

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