Medicaid & 14th Amendment Due Process Rights: A new approach for improving correctional healthcare? (Election Special: Medicaid & The 2024 Election)

Highlighted Stories

Editor's Note

This week's first highlighted story comes from New York City and explores the relationship between governmental supervision of healthcare and true accountability. The Board of Corrections in New York City, to quote from its website: “establishes and ensures compliance with Minimum Standards regulating conditions of confinement and correctional health and mental health care in all City correctional facilities”. Healthcare services for these facilities which includes Rikers Island are provided by a division of the public hospital system, the NYC Health + Hospitals Corporation. The Board of Corrections in a recent report detailed how approximately a third of the request for medical care from detainees goes unmet.

Turning to the second and third highlighted stories coming from California, Kimberly J. Mueller, the chief United States district judge of the United States District Court for the Eastern District of California, appears to be on the verge of appointing a receiver for the California Department of Corrections and Rehabilitation (CDCR). A court appointed receiver would oversee psychiatric care of mentally ill incarcerated people. This action would be in response to the CDCR's previous non-compliance with her orders. The state's correctional system seems to be unable to address on-going staffing shortages, delays in treatment and insufficient suicide prevention efforts even after a $112 million fine. As the third highlighted story reports, the Court of Appeals of the Ninth Circuit has upheld Mueller’s order that the CDCR provide 20 hours a week of mental health treatment to its mentally ill patients.

As our subscribers have known from many other similar stories that we have highlighted, the challenge of one branch of government supervising another branch of government for the provision of healthcare services has generally left the needs of incarcerated people marginally fulfilled at best. However, Medicaid changes this process by shifting the accountability from a governmental organization's 8th Amendment responsibilities to an incarcerated person to the 14th Amendment due process rights of a Medicaid beneficiary.

Once states have implemented 1115 waivers for Medicaid coverage behind the walls and the sections 5121 and 5122 of the Consolidated Appropriations Act of 2023, individual Medicaid beneficiaries have statutory and constitutional rights to challenge the care they are receiving and equal protection rights that could ensure that they are not denied care just because they happen to be incarcerated (see the nex three highlighted stories which detail how various states that have had their 1115 waivers approved are shifting into high gear in preparation for these new beneficiaries). These rights are independent of governmental departments, courts or boards supervising other governmental entities.

Viewing accountability for healthcare shifting from governmental oversight to an individual being able to demand accountability through 14th Amendment rights is a very different way of thinking about the role of constitutional rights within correctional healthcare. Up until now, most of the focus has been on the Eighth Amendment right against cruel and unusual punishment that was granted in Estelle v. Gamble. That ruling only required correctional institutions to not be deliberately indifferent to the serious medical needs of incarcerated people. As history has shown, the deliberate indifference standard has been less than effective in protecting the health needs of incarcerated individuals.

COCHS is very much looking forward to the implementation of the 1115 Waivers and Sections 5121, and 5122 of the Consolidated Appropriations Act of 2023 . This is new terrain in which plaintiffs’ attorneys will be available to protect the rights of incarcerated individuals under the 14th Amendment as opposed to trying to prove that there was deliberate indifference.

In addition to this week’s regular highlighted stories, we have also included an election special. The last four highlighted articles try to predict how the outcome in November (or perhaps later) will impact Medicaid.

Healthcare & Correctional Intransigence

One-third of the requests for medical care for detainees at Rikers Island went unfulfilled last year, and most detainees who were taken to the infirmary were not seen within required legal timelines, according to a report from the New York City Board of Correction. It criticized both the city Department of Correction and NYC Health + Hospitals’ Correctional Health Services for the alleged failures. It recommended that the DOC document requests electronically and better track why detainees are not brought to the medical clinic. Although city rules require that someone in custody is seen by a medical practitioner within a day of a request, just 39% made their visits within this timeframe, according to the Board of Correction. Correctional Health Services called the board’s methodology and conclusion “flawed,” saying reviewers inappropriately labeled calls to its health triage phone line as requests for medical appointments.

A federal judge overseeing a settlement meant to improve psychiatric care in California state prisons is poised to do the one thing she’s tried hardest to avoid: wrest control of prison mental health from the California Department of Corrections and Rehabilitation. The move comes two months after Mueller held the department in civil contempt for ongoing staffing shortages, delays in treatment and insufficient suicide prevention efforts. The judge imposed a $112 million fine and directed the state to spend those funds to carry out measures she’d previously ordered. In her July 12 order, Mueller wrote that instead of signaling a willingness to achieve compliance, the state sought “further delays” and “repeatedly asserted positions the court has found are not supported by the record.”

A Ninth Circuit panel affirmed a lower court’s decision in a decades long California case over mental health treatment for prisoners, ruling that 20 hours of treatment per week is appropriate. The state had argued earlier this month that U.S. District Court Chief Judge Kimberly Mueller erred when she ordered the 20-hour minimum. Mueller didn’t comply with the Prison Litigation Reform Act of 1995. “None of defendants’ contentions is persuasive,” the appeals panel wrote in a 6-page unpublished opinion. Mueller’s order wasn’t erroneous or an abuse of her discretion, the panel concluded.

1115 Waivers

Medicaid expansion took effect in North Carolina on Dec. 1, 2023, as substantially more justice-involved individuals — people who often work in low-paying jobs or struggle to find work because of their criminal history — are now eligible to enroll in the state- and federally-funded program that provides health care for low-income children, their parents and many people with disabilities. Prison officials estimate that about 92 percent of people reentering the community from prison are now eligible for coverage.

In a presentation to the Legislative Finance Committee this week, state officials announced the rollout of a special Medicaid program for people leaving correctional facilities. The new Medicaid program, which will cover all formerly incarcerated people for 90 days after being released, regardless of income, and in some cases will kick in before they’re out. Haven Scogin with the New Mexico Correction Department said that would let it get a head start on rolling out behavioral health care services and things like medically assisted treatment for substance use disorders.

Kentucky is one of five additional states that will soon provide Medicaid health coverage for people nearing release from prison or juvenile detention, according to the U.S. Department of Health and Human Services. "We've been eagerly anticipating CMS's approval of Kentucky's healthy re-entry demonstration for years now," said Emily Beauregard, executive director of Kentucky Voices for Health, a coalition of health advocacy groups.

Medicaid & The 2024 Election

An overview of the differences between what a Harris Administration would mean for Medicaid as opposed to a second Trump Administration. This article includes a chart summarizing these differences.

As with broader Medicaid policy, the future landscape of Section 1115 waivers depends on the outcome of the November 2024 presidential election as a new administration could focus on different priorities, rescind existing guidance, or withdraw already-approved waivers. This waiver watch summarizes five key areas of difference in 1115 waiver policy and waiver approvals under the Trump and Biden-Harris administrations.

Sometimes, a significant policy difference between presidential candidates is in what isn’t being said. Former President Donald Trump’s RNC platform doesn’t mention Medicaid, the safety-net insurance program, but Vice President Kamala Harris’ DNC platform mentions Medicaid 26 times.

This paper focuses on the three plans’ proposed changes to eligibility requirements, consumer protections, financing, and coverage generosity for Medicaid, ACA marketplace insurance, and other health insurance. These and other conservative proposals set forth a vision that contrasts dramatically with recent coverage and affordability gains.

BOP

Luke Thornhill is scheduled to be released from an Oregon prison in four years. He's terrified he might die before then. He's scared because he's been suffering from serious medical issues — including severe abdominal pains, bloody bowel movements and a swollen abdome. Delays or substandard health care for prisoners i are not uncommon. In 2023, NPR published a report showing that nearly 5,000 federal prisoners died over the past decade from treatable conditions. Lawmakers have begun to put the U.S. federal prison system under more scrutiny. In late July, President Biden signed the Federal Prison Oversight Act into law, which mandates routine inspections of all federal Bureau of Prison's facilities and the creation of an ombudsman.

It is getting more expensive to house prisoners throughout the BOP. Food costs have risen for prisons as much as they have for U.S. households. According to testimony by BOP Director Colette Peters before the House Judiciary Subcommittee on Crime and Federal Government Surveillance, the BOP needs to hire 6,500 people, 3,500 of those are for medical professionals. One place to cut cost is to look at those in prison camps for low level offenders to see if there is an alternative, such as home confinement or halfway houses, to move them out of costly institutions.

Opioid Epidemic

Treating and screening for non-substance-related mental health disorders could help drive down overdoses. The study showed that the 63,424 people who died from drug overdoses across 43 states and Washington, D.C. in 2022, 22 percent had a separate mental health disorder. About 80 percent of the overdose deaths involved opioids, primarily illegally manufactured fentanyl, the data showed.

This study reports that receiving opioid agonist treatment (OAT) in prison and after release into the community substantially cuts the risk of death among people who use drugs. This global review of 126 studies —with a combined 586,000 participants— encompassing 18 interventions aimed at reducing drug-related harms in people who have been incarcerated also shows that therapeutic community interventions reduce re-arrest and reincarceration rates. While previous studies have mostly focused on specific interventions or only assessed their impact on drug use and recidivism, none have examined the benefits of interventions delivered after release from prison.

The opioid epidemic persists as a leading public health crisis in the United States. Since 2019, the nation has had yearly record overdose rates, with the highest proportion of deaths attributable to opioids. The criminal justice system faces the call to adopt a major paradigm shift in its orientation and functioning away from a sole focus on legal deliberation, adjudication, and punishment toward the practice of evidence-based health services and harm reduction approaches. But the he evidence for how to effectively usher such change into the criminal justice system is lacking.

Studies

The benefits of optimizing antibiotic prescribing are clear, but most carceral settings do not have routine systems of antibiotic use evaluation. The study identified barriers and facilitators on how to asses and improve antibiotic prescribing in jails. This research encourages other people working in carceral settings to ask questions about the gap between community and carceral healthcare and develop systems to equitable care for people incarcerated in jails and prisons.

State Roundup

Alabama

An initiative to help people released from prison in Alabama has set a goal of cutting the state’s recidivism rate by half by 2030. The Alabama Commission on Reentry, also called Reentry Alabama, has stressed the need for collaboration and communication to assist former inmates in finding jobs, housing, and help with problems such as addictions and mental illness, services that can help them sustain productive lives after incarceration.

Arizona

Over the last five years, fatalities in Maricopa County jails jumped even as the average daily population has declined. The rate of death is more than four times higher than the national average. In 2019, there were 11 deaths in the jails. That number rose to 43 people in both 2022 and 2023. The jail is dealing with more people who have an opioids dependency, sometimes in conjunction with methamphetamines. They also handle more people who have been in stifling heat during the summer, placing their bodies under greater distress.

California

Federal prosecutors on Wednesday announced a civil rights investigation into sexual abuse of women behind bars in two California prisons, citing numerous reports of groping, inappropriate touching and rape by correctional workers. The U.S. Justice Department is investigating whether the California Department of Corrections and Rehabilitation violated the rights of women at the Central California Women’s Facility in Chowchilla and the California Institution for Women in Chino by failing to protect them from sexual abuse by prison staff.

Metropolitan State Hospital occupies 162 acres in Norwalk. That’s about the same size as Disneyland. Many of Metropolitan’s structures have been unoccupied for decades. Los Angeles County Supervisor Janice Hahn and state Sen. Bob Archuleta (D-Pico Rivera) want to use a portion of Metropolitan for supportive housing for people who are currently homeless and in need of psychiatric or substance use treatment. Last week, the Legislature passed Archuleta’s Senate Bill 1336, which would allow the state to negotiate with the county to lease some buildings for interim supportive housing.

Advocates for women in California prisons were backing legislation that would have banned solitary confinement of incarcerated pregnant people — until the author, under pressure from prison officials in Gov. Gavin Newsom’s administration, amended it to allow them to be held in solitary for up to five days. Now many of its former supporters have changed sides. “This bill is not a first step in the right direction, it is a step backward — a dangerous move that could subject more vulnerable populations to forcibly endure the cruelty of solitary confinement,” said Gina Clayton-Johnson, executive director of Essie Justice Group, an advocacy organization for women that was the lead sponsor of the original bill.

State lawmakers have dismissed a bill by a Santa Clara County senator that would have provided a chance at release for some inmates serving life in prison without the possibility of parole for murder. Sen. Dave Cortese, a San Jose Democrat, authored SB 94 in 2022 in hope of offering inmates who were convicted of murders committed before June 5, 1990, and who already have served a minimum of 25 years, opportunities to seek parole.

A California man died in jail because deputies didn’t put him in a mental health housing unit and instead assigned a “violent” convicted sex offender as his cellmate, a newly filed civil rights lawsuit says. Yuri Brand, 39, who had schizophrenia, was jailed on a non-violent offense at the Santa Rita Jail in Alameda County, where staff knew of his diagnosis and housed him with the facility’s general population. Previously, Brand had stayed in mental health housing during unrelated detentions at the Santa Rita Jail and received medication.

The decaying eyesore that is Men’s Central Jail has sparked an impressively broad array of health and safety concerns in recent years. There were the fires, the rats, the drugs, the mold and the persistent violence, both from staff and inmates. But a newly resurfaced engineering study reveals another problem: Major structural deficiencies could turn the aging building into a deathtrap in the event of an earthquake.

Colorado

For the first time since the pandemic, Colorado is seeing dramatic improvements to its waitlist for people accused of crimes who need mental health treatment. These defendants have been deemed too ill to stand trial, and their cases are on hold until they've been restored to competency. Despite improvements, hundreds of people are waiting in jail cells for longer than they should. Around 445 people were on a waitlist for restoration treatment a year ago. Today, there are fewer than 250 people on the waitlist.

Florida

Martin County's top law enforcement official will soon leave office and a new Sheriff takes over in January. The current Sheriff is sounding the alarm about the need for a mental health facility at the Martin County Jail. Martin County Commissioners will hold a budget hearing next week. The sheriff's office is proposing a $109 million dollar budget. That does not include money for a mental health unit at the jail. The sheriff says nearly 40% of the prisoners at the Martin County Jail have a mental illness.

Illinois

The Menard Correctional Center is on lockdown and personal protective equipment has been given to staff to wear as a hazmat team and the Department of Corrections investigates an incident. According to the DOC, two staff members at the correctional center reported to the facility’s health care unit on August 26. They said the staff members experienced symptoms after responding to a medical emergency involving a person in custody in one of the cell houses. According to the DOC, while taking the individual in custody to an outside hospital for treatment, the accompanying officer also reported feeling ill and was also treated and released.

Iowa

The Iowa Department of Corrections reports that mpox has been detected at the Fort Dodge Correctional Facility. The number of prisoners infected with the virus is unknown, but a statement says: "Affected individuals are receiving care, and enhanced sanitation and isolation protocols are in place to prevent further spread."

Louisiana

For years, detainees say, harassment has been rampant at the jail in Orleans Parish, which has struggled since 2012 to comply with a consent decree by the Justice Department to monitor poor conditions, violence and abuse inside. A new mental health-focused community within the jail, designed to reverse years of violence and neglect, and build instead a sense of camaraderie. Spearheaded by Orleans Parish Sheriff Susan Hutson, who ran for office in 2022 promising to reform the jail and fight its further expansion, the program has a simple goal: treat pre-trial inmates more like patients who have experienced severe trauma and are deserving of community and health care.

Montana

The Montana Department of Corrections this week said it's working on plans to move inmates out of county jails to the state prison and is looking for long-term solutions to overcrowding and capacity issues. Missoula County this month launched a dispute with the state agency, saying that it's using local jails to house its own inmates and not funding the full cost of doing so.

Nevada

A Nevada prisoner died after he was pepper-sprayed by guards, shut in a storage room, shackled and restrained with his face to the ground. Patrick Odale's death on Dec. 28, 2023, at the Southern Desert Correctional Center has been ruled a homicide. The Nevada Department of Corrections did not disclose any details, including that Odale was restrained, when it announced his death.

Ohio

The Ohio Department of Rehabilitation and Correction (ODRC) has confirmed that there are four suspected cases of botulism from Belmont Correctional Institution who are currently being treated at The Ohio State Wexner Medical Center. Based on available information, it is believed that these suspected cases are linked to contraband homemade alcohol (commonly referred to as ‘hooch’) consumed by the symptomatic individuals.

Oregon

The Multnomah County Sheriff’s Office has laid out its roadmap to promote safer conditions inside its jails, which came under scrutiny last year following a spike in in-custody deaths. The sheriff’s office has condensed the recommendations made by county, state and federal agencies into 64 goals, which include stronger training on handling in-custody deaths and more accurate investigative reports on those deaths, better data tracking for overdoses and medical incidents and improved protocols for recognizing when someone in custody may be at risk for suicide.

Texas

This week, Travis County Judge Andy Brown and Sheriff Sally Hernandez implemented a new Mental Health Diversion Steering Committee to help people with mental illnesses who are accused of committing minor offenses. The program looks to offer psychiatric assistance as an alternative to jail sentences for people accused of committing minor crimes.

Virginia

COVID numbers are increasing throughout Virginia. While it is not experiencing an outbreak, the Albemarle-Charlottesville Regional Jail says it does have a few cases. “We’ve tried to stop using the word COVID anymore. Again, it’s just, that it’s a respiratory virus classified by the CDC. It’s here. It’s going to be here if we just treat it on an individual basis,” Superintendent Colonel Kumer said. Kumer says 243 people are currently in jail as of August 30. Five have Covid.

Washington State

The Washington State Department of Social and Health Services (DSHS) has made significant strides in improving what the agency called a “crisis” in 2022 — hundreds of seriously mentally ill defendants stuck in county jails across the state, waiting for a bed at a state-run treatment facility. In the last few months, DSHS has met that timeframe with the average wait time now at five days.

Wisconsin

Two former Waupun staff members pleaded not guilty to charges of abusing residents of penal facilities in connection with two prisoner deaths at Waupun Correctional Institution. Brandon Fisher, a former correctional lieutenant, and Alexander Hollfelder, a former correctional sergeant, appeared in Dodge County Circuit Court for arraignments. They are among a total of nine former Waupun prison staff facing charges for deaths at the prison.

Correctional Healthcare Providers

While nursing is a caring profession, we work in environments that can be inherently stressful, which may lead nurses to find themselves involved in emotionally-charged situations. This occurs even more so in the correctional environment, where healthcare is not the primary mission, and most facilities are run as paramilitary organizations, with a very specific chain of command that often leaves healthcare staff on the outside. In addition, our correctional environment, with its often heightened vigilance and sometimes adversarial dynamics, makes the development of these behaviors even more expected.

Correctional Communication Vendors

n prisons and jails across the country, a bulky tablet enclosed in a screwed-on plastic case has become the hottest new device. Featuring limited online access, the tablets allow incarcerated people to make calls, send messages and watch movies from their cells. They also give prison telecommunication companies and correctional facilities another source of revenue when profits from phone calls, which have long been the industry’s principal business, are getting squeezed.

Securus Technologies and ViaPath Technologies have been accused of monopolizing the inmate communication market and their dominance has allowed them to charge high prices while providing poor-performing services. The high rates charged by the specialized telecom companies that provide these services represent a significant financial burden to families that are already struggling to make ends meet. The FCC has recognized the issue and taken decisive steps to address it. In July 2024, the agency voted to implement new rules that aimed to drastically reduce the cost of phone and video calls for incarcerated individuals. As these new regulations are implemented, the FCC will have to be constantly on the lookout to ensure that telecom companies comply with rate caps.

Responding to reports that prisoner contact with loved ones helps reduce the recidivism rate, state lawmakers last year approved a $1 million pilot project to allow inmates with good behavior to make one free 15-minute phone call per month to the outside world. But Gov. Ron DeSantis slashed that line item. In Florida, inmates may only make collect calls, for which the correction department’s vendor, ViaPath Technologies (formerly Global Tel* Link Corp.) charges 13.5 cents a minute. The Department of Corrections receives $5 million a year from its telephone commissions via its $24.375 million contract with ViaPath.

On August 26, the Federal Communications Commission (FCC) issued final rulings on multiple outstanding issues related to its recent order capping costs of communication with people in prisons and jails. Private telecommunications contractor Securus Technologies had filed several petitions, including a request for an exemption so it could offer “alternative rate options.” The FCC dismissed some of the company’s requests as irrelevant, and denied others as unjustified.

Correctional Health Care Vendors

Wellpath

Michigan EMS providers are asking state lawmakers to pick up the bill for roughly $6 million in services they provided to Michigan prisoners over a 12-month period that have gone unpaid. The services, provided between April 2023 and April 2024, were supposed to be paid by a private health care provider contracted to serve the Michigan Department of Corrections. Wellpath failed to pay for the services and the MDOC ended its contract in April.

Nicholas Overfield developed AIDS and died at the age of 38 shortly after a two-month stint in the El Dorado County jail in California. Wellpath, the company contracted to provide medical services at the jail, had been made aware of Nick's health condition and had provided necessary treatment to him during a previous stay in jail. His mother claims that Wellpath failed to provide him proper treatment while in custody in 2022, leading to his developing AIDS and dying just 63 days after entering the jail. An Oakland based law firm filed a civil rights suit against the county, Wellpath and jail employees claiming Nick's death was the direct result of substandard care.

A man who spent time behind bars at the Charleston County jail has filed a lawsuit against the county and the sheriff’s office claiming negligence. Former Moncks Corner Police officer Zedrick Smalls claims the medical care he received while in custody at the jail ruined his life. Smalls, who claims to have suffered significant medical issues while at the facility, is suing Wellpath LLC, a major provider of healthcare in jails nationwide, along with other defendants including officers and medical staff. As of last year, Wellpath is no longer the medical provider for the Charleston County jail.

The family of Philemon Vinson is seeking $34 million in damages after they say he died by suicide while he was an inmate in the Norfolk City Jail. The lawsuit alleges Vinson willingly submitted to a mental health and suicide risk screening, which was administered in which he replied 'yes' to a question that asked if had feelings that there is nothing to look forward to or feel hopelessness/helpless." But the lawsuit says the nurse and the counselor who worked with Wellpath.

Santa Barbara County’s jail health care provider has come under fire several times, leading the county to seek a new provider, but Wellpath is now reporting that increased staffing has helped to improve some of its issues regarding inmate care. Wellpath has been the county’s jail health care provider since 2017, but there have been several issues, including staff shortages and compliance failures. The county’s contract with Wellpath is set to expire March 31.

On July 11, 2022, a medical request form shows Sharpe notified the jail’s infirmary staff she was experiencing chest pain and numbness in her hand. Jail security video showed Sharpe speaking to a paramedic, but she was never evaluated by a nurse or a doctor. Brittny Sharpe succumbed to heart failure after weeks in the intensive care unit. Court records obtained by Atlanta News First Investigates claim Sharpe repeatedly requested medical help inside the Cobb County jail days before she collapsed. This past July, Sharpe’s family filed a wrongful death lawsuit against Wellpath, the company the county uses to care for its detainees.

NaphCare

When Isaiah Trammell experienced a mental health episode while detained at Ohio’s Montgomery county jail in February last year, he pleaded for a blanket, a mat and a phone call. Trammell died three days later after hitting his head against his unpadded jail cell wall. Officials ruled his death a suicide. NaphCare, a $1bn company, has been paid tens of millions of dollars to provide medical and mental health care at the Montgomery county jail. A sheriff’s office information report found that an officer requested mental health officers to speak with Trammell. Footage of the 10 hours that Trammell spent at the jail showed an on-duty healthcare worker attempting to speak with him – but gave up and was quoted as saying: “OK, I’m done.”

Turn Key Health

Oklahoma County officials are reviewing a contract with jail health care provider Turn Key Health Clinics after delaying a vote on a new deal with the company worth more than $7.4 million a year. The Oklahoma County Criminal Justice Authority’s contract with Turn Key expired at the end of June, but the company has continued to provide medical care to jail detainees on a month-to-month basis. An investigation found that Turn Key employees didn’t send people to the hospital in dozens of cases when they were in crisis. The company staffed mental health and other medical positions with low-level nursing assistants trained to perform basic tasks and not to diagnose or assess medical conditions.

The husband of Shannon Hanchett, the "Cookie Queen," plans to refile a federal lawsuit claiming the Cleveland County Detention Center denied her constitutional rights and contributed to her death. The amended complaint will educate the court of the treatment by Cleveland County jail staff and Turn Key employees alike and explain how that treatment directly caused Shannon’s completely preventable death.