Further Impact of Medicaid in Corrections: Cost of Restoration to Competency

Highlighted Stories

Editor's Note

This week's first two highlighted stories come from California, and they both involve how the criminal justice system treats individuals who are deemed not competent to stand trial. Our subscribers may not be familiar with the legal process when there is a question about an individual’s competency and its significant financial implications for individuals and Medicaid. For individuals to be subject to adjudication by a court, they have to be competent to understand the charges they are facing. If a judge deems a person charged with a crime to be not competent, that person goes through a process that is known as restoration to competency, in which the person is sent to a facility like a state hospital to have competency restored. Our readers may recall various stories in the Weekly Update from jurisdictions like Washington State, in which judges have found that individuals are being held too long in jails without treatment because they have to wait for a bed at a state hospital.

To address the delayed treatment of defendants (the first highlighted story), the Santa Barbara County Board of Supervisors in California has come to an agreement with the California Department of State Hospitals (DSH), where DSH will be funding the jail to restore individual’s competency while they are in the local jail rather than waiting for a bed to become available at the state hospital. In the second story, an individual from Contra Costa County who was deemed not competent to understand criminal charges filed against him, was sent to Napa State Hospital. After release, that individual received a bill for three quarters of a million dollars. We are highlighting these two stories, both to make sure our subscribers understand this aspect of our criminal justice system and also to talk about the financial role of Medicaid in these situations.

The reason the patient received the bill for three quarters of a million dollars, is that the state hospital is an institution for mental disease, commonly known as an IMD, that is prohibited from receiving Medicaid reimbursement if they are larger than 16 beds. Because these hospitals are required to charge patients, and even if these individuals are eligible Medicaid beneficiaries, Medicaid will not pay for their care. As a result, individuals receiving court-ordered treatment are financially responsible for the cost of that treatment. On the other hand, the individual who is being treated in the local jail (as will soon be the case in Santa Barbara County) is not being treated in an IMD because a jail does not qualify as a hospital. With the approval of California’s 1115 waiver to allow Medicaid coverage for the last 90 days of incarceration in corrections, treatment for those 90 days could be covered by Medicaid and the patient would not be held financially responsible.

The multiple ways of understanding the implications of Medicaid within corrections is now becoming more pressing. In each news cycle, more states are having their Medicaid waivers approved and national organizations are throwing their support behind these waivers. New Hampshire last Friday announced that CMS has approved its 1115 Waiver. The Legislative Analysis and Public Policy Association has released model legislation requiring state department of health and human services to apply for such waivers. As always with each new development, COCHS will keep its subscribers informed of what these changes might mean given our unique hands-on experience in public policy, healthcare and criminal justice.

Restoration to Competency

The Santa Barbara County Board of Supervisors voted to accept $5.7 million in state money to fund jail-based treatments for inmates who are incompetent to stand trial due to mental illness. The county’s agreement with the California Department of State Hospitals (DSH) and California Health and Recovery Solutions (CHRS) will allow DSH to provide a jail-based competency treatment program in the county’s Main Jail for inmates with serious mental illnesses. As part of the agreement, CHRS (a subsidiary of jail health-care provider Wellpath) will provide mental-health professionals and administrative support for the program.

The first bill arrived in Sultan Khan’s mailbox two years after his release from Napa State Hospital. Khan had received psychiatric treatment there for three years after pleading not guilty by reason of insanity to a criminal charge stemming from an assault. The department’s practice of billing patients’ exorbitant sums after releasing them from its care has existed for decades, attorneys and advocates say. Such billing has been required under state law since 1967 and has been allowable since the 1930s. The practice has endured even though the state has passed laws in recent years preventing other government entities from charging big fees to vulnerable populations. One example: People leaving prisons and jails no longer have to pay for many of the costs of their incarceration. The Department of State Hospitals wanted him to pay back the cost of that stay: $769,490.

Medicaid

The New Hampshire Department of Health and Human Services (DHHS) announces that it has received federal approval of a 5-year extension of its Section 1115(a) Demonstration. The 1115a Waiver positions New Hampshire to be among the first states to implement Community Re-Entry, a new program to provide Medicaid coverage to incarcerated individuals diagnosed with a mental illness, with a specific target to those with a substance use disorder, for 45 days prior to their date of release. DHHS is working closely with the New Hampshire Department of Corrections to implement Community Re-Entry within the State correctional system. The goals of the program are to support people’s health needs during the critical period when they transition.

The purpose of the this model legislation is to: (1) Require a state department of health and human services to apply for a Medicaid reentry Section 1115 demonstration waiver to allow a state Medicaid program to cover pre-release services for a Medicaid eligible incarcerated individual for up to 90 days prior to the individual’s expected release date and (2) Require a state department of health and human services to conduct comprehensive monitoring and evaluation of the Medicaid reentry demonstration, if the waiver is approved.

BOP

Senator Edward J. Markey (D-Mass.) and Congresswoman Ayanna Pressley (MA-07) today announced the introduction of the Environmental Health in Prisons Act to improve the environmental health outcomes of incarcerated people. The legislation directs the Bureau of Prisons, and related agencies to publish data on the prevalence of, and exposure to, environmental stressors at federal carceral facilities, including information on air quality, water quality, temperature, humidity, mold, contagious diseases, asbestos, pests, nutrition, light levels and quality, and noise. This information would be provided to empower affected individuals, enable research, and support advocacy to decarcerate prison populations. In addition, the legislation would create a new $250 million grant program to directly address environmental health harms in carceral facilities.

Edwin Cordero, a 36-year-old inmate at the Metropolitan Detention Center in Brooklyn died after he was injured in a fight at the jail, the U.S. Department of Justice announced. Mr. Cordero’s death comes just months after a federal judge, Jesse M. Furman, refused to send a man convicted in a drug case to the troubled jail. The judge cited complaints of horrible conditions, frequent lockdowns and staffing shortages.

HIPAA

Many in corrections are confused about how to implement HIPAA regulations and the boundaries of patient privacy and confidentiality of medical information. For example, officers may need to know about medical conditions or disabilities that require special equipment or accommodation. Officers transporting patients to off-site consultation may need to know special needs and/or signs to watch for. Officers may need to know that health conditions or potential medication side effects require changes in work assignment. According to HIPAA regulations, an ER nurse can confidently share health information with the receiving nurse in the prison infirmary and a nurse practitioner can alert an officer to a health need of an inmate in his charge.

Studies

Scabies is a widespread issue in prisons due to overcrowded living conditions and limited healthcare resources. A recent study published in the Journal of Infection and Public Health discovered that the prevalence of scabies varies greatly among prisoners in different regions and facilities. This review aimed to determine the global prevalence and predictors of scabies among prisoners by conducting a systematic review and meta-analysis.

Hepatitis C virus (HCV) continues to cause significant morbidity and mortality within the US, and disproportionately impacts those involved with the criminal justice system. Despite this, knowledge and attitudes regarding HCV treatment among adults on probation is not well understood. This study provides a cross-sectional survey of adults on probation accessing on-site HCV testing and linkage services at the adult probation department in Denver, Colorado.

Individuals with post-incarceration syndrome (PICS) may always sit with a back against the wall, have an inability to control their anger, feel helpless or unsafe, experience flashbacks to incidents where they were threatened, experience nightmares and sleep disturbances, or be overly possessive of material things. Some people experience a disbelief of freedom and may act or dress as if they are still incarcerated, prefer to be in confined spaces, and have a fear of future interactions with law enforcement.

State Roundup

California

Members of the Sacramento public spoke out against a proposed annex to the county jail, the latest pushback in a years-long debate over the building. The Intake and Health Annex has been proposed as a way to meet the terms of the Mays Consent Decree, a 2019 legal agreement that charges the county with remedying conditions inside the jail. The building’s projected cost — $654 million, paid for by a $1 billion bond. A consulting group, CGL Companies, was contracted by the county to conduct a peer review of the latest iteration of the plan. Advocates have called on CGL to seriously consider whether a building is needed.

The Center for Immigration Law and Policy at University of California Los Angeles School of Law along with Jewish Family Service of San Diego, the American Civil Liberties Union of San Diego and Imperial Counties and the national ACLU sent a letter to the acting head of Customs and Border Protection to ask for a new rule that would limit the time that pregnant people spend in custody to 12 hours or less. It also asks to ensure that they’re not separated from their families and that they’re not returned to holding cells after spending time in hospitals.

Power was restored at an overcrowded California men's prison that ran on emergency generator power for three days following a major electrical outage amid a heat wave. The electricity went out at the facility in Vacaville, about 40 miles (65 kilometers) southwest of Sacramento. Running water, ice and cooling fans were made available “to help manage heat-related concerns,” the corrections department said. In addition, medical staff made rounds to monitor the well-being of the inmates, officials said.

Georgia

Violent and bloody attacks have become weekly occurrences inside the prisons run by the Georgia Department of Corrections. Records show that at least 80 GDC correctional officers have been arrested or fired since 2017 after being accused of using excessive force against prisoners. Allowing inmates to carry out violent attacks or even orchestrating them is another way some officers have exacted punishment. Amid the mounting chaos inside the state’s vastly understaffed prison system, the officers are in effect using prisoners as weapons to settle scores.

Ohio

The family of Dewey McVay who was killed while housed with the Ohio Department of Rehabilitation and Correction won a settlement after accusations of violence and neglect. His family will receive $225,000. The law firm representing the family says prison guards improperly entered McVay's cell and assaulted him, even after he was handcuffed. Both officers involved and those that witnessed the incident filed false reports and misleading information about the source of McVay’s injuries.

Oklahoma

The Oklahoma County jail has twice refused surprise inspections from the Oklahoma State Health, setting the stage for a potential standoff between the county’s district attorney and the state agency tasked county jails are safe. County officials first denied entry to an inspector on June 25. Jail officials instead invited the Health Department to conduct the inspection on a predetermined date. The state Health Department rebuffed that offer. Back in 2021, 2022, and 2023, unannounced inspections revealed repeated violations of state standards.

Texas

An hour and half before a mentally disabled woman, Chasity Congious, gave birth in a Tarrant County infirmary jail cell to a baby that later died, the then-medical director, Dr. Shaw, got an email that she was having abdominal cramps. He did not act on it, according to federal court records. Jailers and medical staff sitting a few feet away didn’t hear Chasity's cries. She gave birth alone, the umbilical cord wrapped around the baby’s neck, cutting off oxygen to the baby’s brain. It’s now resulted in a federal judge’s ruling putting Shaw back in legal jeopardy for the events that led to the death of the Chasity’s baby, Zenorah.

Cost of Phone Calls

The Federal Communication Commission has voted on a rule that cuts the cost of prison and jail phone calls. Following a meeting on Thursday, the FCC announced it will lower rates for incarcerated people at correctional facilities. At large jails, 15-minute calls can cost more than $11, but the new rule will lower that to 90 cents. At small jails, a 15-minute call that would cost more than $12 will be lowered to $1.35.

Correctional Health Care Providers

Prime Care

For-profit health care companies like PrimeCare have proliferated in New York jails in recent decades — even as scores of incarcerated people have died after they were provided inadequate care, according to a New York Focus review of court records, state death investigations, and financial reports. Much of the neglect can be traced to the profit motive. Around New York and across the country, municipalities have replaced county-provided jail health care with private jail medical companies, which promise to improve care even as they seek to bank as much of their contract revenue as possible. In an interview with New York Focus, PrimeCare’s CEO, Tom Weber, acknowledged that companies are incentivized to withhold care. “Years ago, the model would’ve been defined as ‘as little care as possible,’” he said. But public attention keeps companies in check, he asserted.

YesCare/Corizon/Tehum Care

Prison health company YesCare has reached a $75 million bankruptcy settlement that will address lawsuits accusing its predecessor of providing prisoners with poor medical care, a rare success for the legal strategy known as the "Texas two-step." YesCare announced the settlement late Wednesday, while saying that details still needed to be worked out and approved by U.S. Bankruptcy Judge Christopher Lopez in Houston, who is overseeing its Chapter 11 case. YesCare is the successor to Corizon Health, which used a Texas divisive merger to split into two companies after being hit with about 200 lawsuits alleging that it provided substandard medical care that led to injuries and deaths at 50 detention facilities in 27 states. YesCare inherited Corizon's contracts and business assets, while a new shell company Tehum Care Services filed for bankruptcy after being saddled with responsibility for the lawsuits.

Wellpath

The County of Monterey and the private jail health care provider Wellpath are settling with the families of three more inmates who died while in custody at Monterey County Jail. This is just the latest settlement. Five lawsuits between 2013 and 2019 resulted in $9 million in judgments and settlements. Wellpath is facing sanctions of $25,000 for each of the areas where they are out of compliance at Monterey County Jail. Fines could reach more than $1 million if Wellpath fails to fix the issues. Wellpath has until Aug. 1.

A federal judge in Scranton has been asked to approve a $5 million settlement with the final two defendants in the wrongful death suit brought by the mother and estate of a man who died in the Clinton County Correctional Facility. The proposed settlement with Wellpath and Dr. Karl Pecht is in addition to the $700,000 the county agreed to pay.

Advanced Correctional Healthcare

A lawsuit filed in Minneapolis federal court accuses Dakota County jail officials and Advanced Correctional Healthcare of neglect and deliberate indifference in the case of a man who suffered a life-threatening diabetic coma. Jail surveillance video shows Duffy Caleb wallowing in a padded cell in his own blood, urine and feces – begging repeatedly for help. Jail paperwork shows jail staff had been told Caleb suffered from Type 1 diabetes and major mental illness – usually controlled with insulin and the drug Gabapentin.