CorrectCare

The Health Care Reform Law: What Does It Mean for Jails?

by Patricia Blair, PhD, LLM, MSN, and Robert B. Greifinger, MD

The Patient Protection and Affordable Care Act, commonly known as “health care reform,” is now law in the United States. Although it faces legislative challenges and possible revision of its components, we have analyzed the law as it stands now to understand what implications it may have for correctional health care.

As it turns out, the impact could be fairly significant for jails and for the populations that pass through their doors.

Interpreting the Language
The general purpose of the ACA (the shorthand term for the law) is to improve access to health care. Some of its provisions have been widely reported—for example, access to insurance coverage for those with preexisting conditions, the creation of state health insurance exchanges and the expansion of Medicaid eligibility based on income. But, as with Medicaid in its current form, the new law excludes incarcerated people from receiving certain benefits. Specifically, individuals are not eligible (“qualified”) to enroll in a health plan through a health benefit exchange “if, at the time of enrollment, the individual is incarcerated, other than incarceration pending the disposition of charges.”

“Incarcerated” is not defined in the act, and unless federal guidance or regulations are issued to resolve this matter, there may be ambiguity when determining how a person’s incarcerated status affects eligibility to enroll in a health plan. At present, however, this language leaves open some promising possibilities for pretrial detainees.

Pretrial detention generally refers to being held before trial on criminal charges due to inability to post bail or denial of release—in other words, before “disposition of charges.” This suggests that  hundreds of thousands of individuals held in jail each year as pretrial detainees may indeed be qualified to enroll in a health plan.

Also open to question—and favorable interpretation—is the eligibility status of individuals detained on probation or parole violations for whom disposition of charges is pending, and of those adjudicated guilty but released, including those released with a sentence of time served.

Finally, the restriction “at the time of enrollment” can be read to mean that if individuals are otherwise eligible to enroll in a health insurance exchange plan, they may do so as long as they are not incarcerated (however that is defined). But what happens if they later become incarcerated? Will they continue to be covered under the plan? Currently, in many states such coverage is generally terminated or suspended as soon as an enrollee becomes incarcerated pending conviction. This typically happens a few days or longer after the person has been detained. The Centers for Medicare and Medicaid Services encourages suspension (rather than termination) of benefits for persons who are incarcerated pending disposition of charges.

As to how the ACA will affect Medicaid with regard to detainees, one element should prove beneficial to those with mental illness and/or substance abuse disorders. Such detainees are eligible for Medicaid under the law, which also requires states to streamline enrollment procedures in coordination with health benefit exchanges.

States also have the option under the ACA to offer presumptive eligibility to individuals based on income. Without going into detail here, eligibility and enrollment processes would differ depending on (a) whether or not the detainee is already enrolled in a plan, (b) income level and (c) incarceration status—pretrial, convicted and jailed, or convicted and released. (For hypothetical scenarios based on these variables, see the Resources list, COCHS health reform issue papers.)

Assessing the Impact
Assuming our interpretation of the ACA language is correct, the law will require expanded roles for jails or other agencies responsible for health care for individuals who are detained or incarcerated. These roles are outlined below, along with other important factors to note.

Expanded Access Through Enrollment
Pretrial detainees are unlikely to have enrolled for health care coverage through the means used by most people in the community (such as their employers). To expand access to care, the ACA directs the U.S. Department of Health and Human Services to develop enrollment standards and protocols to facilitate enrollment in federal and state programs. Such methods include notifying individuals and authorized third parties of eligibility and verifying eligibility within 180 days of passage of the bill.

The first expanded role of jail authorities will be to establish linkages with Medicaid, Medicare, health plans and other entities, such as insurance exchanges. The HHS protocols should provide correctional agencies with a conduit for streamlined exchange of data between state and community partners.

For those not currently enrolled with Medicaid or another health plan, the enrollment process must be timely and reliable. Agencies responsible for health care for pretrial detainees have a strong financial incentive to develop a seamless process (see Resources for incentive information). Once detainees are enrolled, these agencies will be eligible to recoup money spent for their health care. This income can be substantial to agencies burdened with high health care costs and tight budgets.

Communication of Health Information
The second expanded role for jails is to provide continuity and coordination of care into and out of custody through an electronic health record system. Again, the ACA provides incentives for this. An EHR can facilitate health care transitions, saving countless hours of staff time and contributing to patient safety. It also can offset the costs of some of the expanded roles for jails by reducing medical record staffing requirements. As in any health care encounter, it is critical that health information be kept private and confidential, as required by law. Consent must be obtained to share such information.

Claims
If the jail bills on a fee-for-service basis, its third expanded role will be to develop and implement a billing and accounting system. Claims and health care staff will have to be familiar with the utilization management programs of the entitlement or insuring entity providing coverage. Collaboration with Federally Qualified Health Centers would facilitate this process.

Standards of Care
As payment for inmate health care gets redesigned, it is important for policy makers and public authorities to meet the constitutional standard of care. As care behind bars becomes better integrated with care in the community, health status can be expected to improve. Correctional systems should get guidance from standards such as those published by the National Commission on Correctional Health Care, the American Public Health Association, the American Bar Association and the United Nations.

Oversight
To achieve optimum health status and cost containment, a successful correctional health care program will have independent oversight and self-critical quality management programs. For example, a jail would arrange for periodic assessment of timely access to appropriate medical care by an independent reviewer, who would validate the self-critical quality management program and advise on improvements.

Throughcare
It is as important to have access to the individual’s health care information at booking as it is to provide treatment planning and continuity of care on release.

Adequate staffing and training are essential for program success. The discharge planning program should be written out for staff and incorporated into any contracts for care with third-party providers. Discharge planning begins during the initial risk assessment process. (See Resources for information about the discharge planning process.)

Once the basic elements of the discharge planning process have been implemented, correctional agencies can expand their programs with options such as case management, groups to provide life skills and reentry education for patients with special needs, liaison with probation and parole agencies, staff training on building community linkages, and evaluation using valid and reliable performance measures.

Provider Networks and Payment
Physicians and other licensed independent health care practitioners who work behind bars are often isolated from their community peers. This isolation is a barrier to strong collegial relationships, although it is less of a problem in small facilities where the physician is only part-time. Physicians who affiliate with a network will have greater access to diagnostics and specialty care, as well as billing services. The ACA provides an option for affiliation through “accountable care organizations.” There is a potential financial advantage to affiliation with an ACO. Although they do not take risk and billing can be fee-for-service, ACOs that spend less than the anticipated amount for their patients will receive 80% of the savings. These savings can be shared by the practitioners or invested in enhanced patient care. The high morbidity of jail populations is not necessarily a barrier to achieving savings as the anticipated spending will be risk-adjusted.

Conclusion
While at first impression the ACA appears to unduly restrict access to health services for millions of individuals who are incarcerated, a more careful analysis suggests that many who are detained pending the disposition of criminal charges and not yet sentenced may still benefit by being eligible to participate in state health plans, including state Medicaid plans for which eligibility generally is expanded under the new law.

Moreover, state agencies and other organizations that provide eligibility and enrollment services to prospective and current beneficiary populations are now given the opportunity to pursue grant support and other resources with which to improve their outreach to beneficiary populations. Such support may be tapped by correctional and other agencies to mainstream pretrial detainees and released prisoners into community health networks so that needed health services, particularly mental health and substance abuse services, can be arranged.

Importantly, given the past record of Medicaid restrictions, we must remain vigilant about implementation of ACA provisions by federal and state regulatory agencies to ensure that pretrial detainees retain their eligibility to participate in the health-related benefits provided under the new law. Assuring that pretrial detainees, as well as inmates, will have access to needed health services requires that all who are interested in promoting public health among incarcerated populations be prepared to assume an active role in the administrative and regulatory process of ACA implementation.

There are serious barriers to improving health services in prisons and jails, even after effective health care coverage is established for pretrial detainees (and perhaps sentenced prisoners) through health care reform. These include insufficient executive-level champions, data resources, continuity of care, public health programs, communication of cost-effectiveness and community receptivity, as well as internal barriers (attitudes, policies and practices) and myriad political barriers. Even so, these barriers can be addressed through capable leadership, community involvement and innovative planning and implementation.

— About the authors:
Patricia Blair, PhD, LLM, MSN, is a health law attorney based in Texas and an adjunct associate professor in the College of Nursing and Health Sciences , University of Texas at Tyler. She represents the American Bar Association on NCCHC’s board of directors. Contact her at pblair@pblairlawfirm.com.

Robert B. Greifinger, MD, is an independent correctional health care consultant as well as an adjunct professor of health and criminal justice and a distinguished research fellow at John Jay College of Criminal Justice, City University of New York.

This article is based on an issue paper written by the two authors and T. Howard Stone, JD, LLM, on behalf of the ABA’s Criminal Justice Section. It was developed for a health reform conference hosted by Community Oriented Correctional Health Services (COCHS), a nonprofit organization established to build partnerships between jails and community health care providers.

[This article first appeared in the Winter 2011 issue of CorrectCare.]