Affordable Care Act: Building Healthy and Safe Communities A Primer for Advocates Spring 2014
The ACLU of San Diego & Imperial Counties is leveraging the Affordable Care Act in 2014 to expand access to community-based mental health and drug treatment services as a means to reducing overreliance on incarceration. Our staff attorney and policy advocates lobby leaders in sheriff s and probation departments, as well as county health and human services agencies, to establish systems for healthcare enrollment of eligible San Diegans in the custody or under supervision of these agencies. We advocate in and with the courts, probation, and sheriff for the consideration of medical needs in determining individuals appropriateness for supervision in the community rather than detention in jail where they can receive federally funded physical and behavioral health services that will help reduce the likelihood of recidivism. Contacts for more information Margaret Dooley-Sammuli Policy Director ACLU of San Diego and Imperial Counties mds@aclusandiego.org 619-398-4486 Kellen Russoniello Staff Attorney Health and Drug Policy ACLU of San Diego and Imperial Counties krussoniello@aclusandiego.org 619-398-4489 Published April, 2014 ACLU of San Diego & Imperial Counties P.O. Box 87131 San Diego, CA 92138-7131 619.232.2121 info@aclusandiego.org www.aclusandiego.org/aca sdaclu @sdaclu
The Affordable Care Act and Building Healthy & Safe Communities The Patient Protection and Affordable Care Act (ACA) presents an unprecedented opportunity to reduce reliance on incarceration and move toward a health approach to substance use and mental health. You do not need to master the intricacies of the ACA to understand how it can help advance your criminal justice reform goals and help build healthy and safe communities. This document provides a starting point for advocates interested in maximizing the ACA s community safety benefits at the county and state level. It is based on the experience of the ACLU of San Diego and Imperial Counties, which is working with local law enforcement, health agencies and community-based organizations to realize the ACA s full potential for improving the health and safety of communities in our region. If you would like to learn more about the ACA, several useful resources are listed at the end of this document. We also encourage you to reach out to us at the ACLU in San Diego. Page 3 Moving Toward a Health Approach to Substance Use and Mental Health The criminalization of people who use drugs or have mental health issues has had disastrous consequences for individuals, families and whole communities. A significant proportion of people who come into contact with the criminal justice system including survivors of crime need substance use disorder and/or mental health treatment. Most fail to receive adequate, if any, care and many are worse off as a result of their contact with the criminal justice system. Efforts to reform criminal justice policies that criminalize people with substance use and mental health issues have long been stymied by the lack of sufficient resources for appropriate health services in the community. The ACA will help address this perennial problem in two major ways. First, many public and private insurance plans are now required to provide minimum coverage for treatment of substance use disorders and mental illness. (States are responsible for choosing exactly what services the minimum coverage will include.) Second, states now have the option to expand eligibility for federally funded health coverage, called Medicaid, to include most adults 1 with income at or below 138% of the federal poverty level (FPL). 2 Although federal law prohibits access to most Medicaid benefits for people while they are incarcerated, 3 there is no such prohibition for formerly incarcerated people or for people under criminal justice supervision in the community. The ACA establishes a framework on which to build healthoriented responses to substance use and mental health issues. Through the ACA, states and counties can draw down federal funds and individuals can tap into private health insurance to expand access to health services in the community. This will make alternatives to arrest, prosecution and incarceration for substance use and mental health-related problems more possible and sustainable than ever before. It may also allow for more robust support programs for crime survivors than previously available. This new reality encourages communities and governments to think critically about whether individuals (particularly those in need of medical care) could be treated and held accountable outside of a correctional setting (e.g., on probation rather than incarcerated) or outside of the criminal justice system entirely (e.g., preventative care or pre-arrest diversion). Advocates can leverage the ACA to reduce the counterproductive and costly incarceration of people for underlying substance use disorder and/or mental health issues and to expand access to treatment outside of the criminal justice system. Government agencies, particularly correctional systems and probation departments, can leverage the ACA to further their efforts to implement effective and cost-effective policies that safely manage jail and prison populations while protecting public safety and reducing recidivism. Getting Started This section will help you determine your capacity and priorities for advocacy around the ACA and justiceinvolved populations. After this section, you will find a list of sample campaigns. Getting to Know the Players 1. What are the entities in my area that are involved in or influence ACA implementation? One of the best ways to learn more about how healthcare reform is playing out in your area is to ask some of the advocates and health agencies engaged in ACA implementation, particularly those focused on healthcare access for low-income people and people of color. You will also want to check out the resources available through your state s regulated insurance marketplace (called a health benefit exchange 4 ) and your county health agency, including information about organizations funded to engage in ACA education, outreach, and enrollment in your area. 1 Immigration status affects eligibility. For more information, see: How the ACA Impacts Immigrant and Migrant Populations in California. February 2014. Available at http://tinyurl.com/mhksqkn. 2 For FY 2014 in the contiguous United States (including the District of Columbia), 138% FPL is $16,104.60 for an individual and $32,913 for a family of four. 3 Before this expansion, Medicaid was only available for low-income people who fell into specific categories, such as those who were elderly, disabled, children, parents, or pregnant mothers. The expansion makes Medicaid available to adults without dependent children so long as their income is at or below 138% FPL. 4 States had the option of operating their own health benefit exchange, operating in conjunction with the federal government, or letting the federal government operate the exchange for them. Visit http://tinyurl.com/ouxrjr5 and input your state to determine what model your state has chosen.
Page 4 ACA & the ACLU in San Diego The ACLU advocates for policies that enhance community safety while reducing unnecessary incarceration, especially related to health and social issues. With the expansion of Medicaid in California (called Medi-Cal), the state s 58 counties now have a powerful tool to safely reduce the number of incarcerated people particularly for substance use or mental health issues by directing them to health services intended to improve health and reduce recidivism. With the support of the Parker Foundation and The California Endowment, the ACLU of San Diego and Imperial Counties is working with law enforcement agencies, healthcare providers, and community stakeholders to establish systems of healthcare enrollment for the justice-involved population, increase healthcare access by this population, and, ultimately, reduce the number of people going to jail for substance use and mental health-related offenses. We have also sought out partners who serve crime survivors, who often have substance use and mental health issues. Moreover, there is little awareness that the ACA requires all insurance to cover domestic violence screening and counseling. The ACLU is working with the San Diego District Attorney to provide training to the Office s victim advocates who speak with more than 12,000 crime victims in the county each year on how the ACA can help people impacted by crime. In San Diego, the ACLU meets regularly with county health agencies, the Sheriff s Department, and the Probation Department, to advocate for the adoption of a robust and sustainable system of healthcare enrollment of the justiceinvolved population. The Sheriff and Probation Departments have committed and received California Endowment support to provide some level of enrollment assistance. Our goal is for these and other agencies to offer enrollment to all justice-involved people. In addition to advocating for systems that offer enrollment to as many individuals as possible, we are working with these agencies and healthcare groups to provide education on how to use insurance and particularly Medi-Cal, since for many people this is the first time they have had insurance. We are also working with these partners to create a warm hand-off to services in the community so that the newly insured know where to go to get healthcare and are therefore more likely to actually access services and to ensure that high-quality treatment is available to the newly eligible Medi-Cal population, especially for mental health and substance use disorders. The ACLU coordinates with health service and reentry providers to advocate in a unified voice around issues around enrollment, access to health, and other services that facilitate successful reentry into the community. As a collaborative effort, we have identified and offered solutions for barriers to success, including lack of picture identification and information-sharing between detention facilities and health service providers. We have identified opportunities at many stages of the criminal process for individuals to access appropriate health services in lieu of incarceration. (See Appendix A.) Even as enrollment systems are put in place, we supported the Sheriff s Department in establishing its new Pretrial Release program. Finally, the ACLU is leading the effort to ensure evaluation of the impact that enrolling the justice-involved into insurance has on health access and utilization, recidivism, and other indicators of a healthier life. We hope that by working with all of these partners from law enforcement, healthcare, and reentry to crime victims advocates that San Diego will be a model for demonstrating the vast potential for leveraging the ACA to reduce our overreliance on incarceration for health problems and social ills.
Specifically, you want to find out if they are already thinking about enrollment of the justice-involved population and, if not, how receptive they are to the idea. It is quite possible that health groups do not have relationships with law enforcement agencies, and that may be a barrier to developing collaborative strategies for enrollment of this population. 2. What are the agencies in my area that supervise and/ or provide services to justice-involved populations? If you do not already have relationships with law enforcement agencies in your area, this is a good reason to start. Reach out to law enforcement leadership to ask their plans for healthcare provision now that the ACA is in place. For any work you do, you ll need to know where law enforcement stands on the issue, whether they need to be educated, are already making changes in light of the ACA, or might be receptive to more information about their options. You will also want to know who they listen to when it comes to healthcare. 3. Can you tap into any existing coalitions or partnerships? Stakeholder groups in your area may already be convening to work on any number of aspects of ACA implementation. These can include reentry service provider meetings, meetings of organizations that are doing healthcare education and enrollment, and even law enforcement partnership meetings. Your presence at these meetings may demonstrate your shared commitment to issues of health and safety and may allow you the opportunity to gain the group s support for your advocacy goals. You should determine if any groups like these exist and consider joining if they do. If not, you might consider starting one. 4. How can I make sense of the landscape? Depending on your level of engagement in this work, you may want to develop a systems map to help you track what you learn about the players in your area and will help you understand how they relate to the ACA and to each other. A systems map is simply a document that allows you collect a standard set of information on these various entities, organizations and interests. The key information to gather is what each entity does in the way of healthcare enrollment and/or education, how these entities influence each other, and ways that the advocate can help them achieve their goals or influence them to improve outcomes for the justice-involved population. The map should be a continuous work in progress that is updated as new stakeholders are added and you learn more about what the stakeholders do. See Appendix B for a template. Understanding ACA Basics in Your State 5. Has my state expanded Medicaid eligibility under the ACA? To find out if your state has opted to expand Medicaid, visit http://tinyurl.com/dxyzhwe. Additional information can be found online at http://tinyurl.com/pdkz4f9. If your state has not opted to expand Medicaid eligibility, you may want to consider whether there s a role for your advocacy in that debate. Justice-involved populations are overwhelmingly low-income. Without Medicaid expansion, many in this population will not be able to afford access to expanded coverage under the ACA. 6. Does my state terminate Medicaid benefits when a person is incarcerated? Although federal law does not require it, most states terminate Medicaid enrollment when a beneficiary is incarcerated. Affected individuals must reapply for the program after release, which may cause a delay in coverage and hinder reentry plans. You can contact your county or state health services agency to find out if benefits are terminated upon incarceration in your state. California Example: Assembly Bill 720, which took effect January 1, 2014, now requires that Medi-Cal (California s Medicaid program) benefits be suspended, rather than terminated, upon incarceration for a period of less than one year. Benefits will be reinstated upon release. For more information on that bill, visit http://tinyurl. com/n4kwwve or contact Californians for Safety and Justice at www.safeandjust.org. 7. What types of mental health and substance use disorder services are covered by my state s Medicaid program? All states that have opted to expand their Medicaid systems under the ACA must cover mental health and substance use disorder services as an Essential Health Benefit 5 for the newly eligible population. However, each state will determine its own minimum coverage for these benefits, known as a benchmark plan, which may cover only some Page 5 5 Essential Health Benefits (EHBs) are categories of services created by the ACA that many health plans must cover. These include ambulatory patient services; emergency services; hospitalization; maternity and newborn care; mental health and substance use disorder services; prescription drugs; rehabilitative and habilitative services and devices; laboratory services; preventive and wellness services; chronic disease management; and pediatric services, including oral and vision care. More information can be found at http://tinyurl.com/k6hjlho. Prior to the ACA, mandated coverage was determined at the state level. State coverage mandates that exceed the EHBs will remain in effect.
Page 6 types of services. You can find your state s benchmark plan by visting http://tinyurl.com/o82xccu. If your state s benchmark plan fails to cover certain treatments that you think it should (e.g., medication-assisted or residential treatment), you may choose to advocate for expanding the scope of services covered. California Example: Medi-Cal (California s Medicaid program) will cover the mental health and substance use disorder treatment benefits included in the Kaiser Small Group HMO 30 plan, which is the Essential Health Benefit benchmark for California. More information is available at http://tinyurl. com/leyyf7y. 8. How do people access mental health and substance use disorder services in my state and/or county? How will the ACA change the status quo? State and county health departments and/or mental health and substance use disorder treatment providers in your area can help explain how people get into treatment programs, how they are funded, program capacity, and barriers to effective continuity of care. They should also be able to explain how the ACA will change access to treatment services, putting you in a better position to work with law enforcement agencies to get justice-involved individuals into the services they need. California Example: Serious mental illness and substance use disorder services will continue to be facilitated through the counties, whereas Medi-Cal managed care plans will provide services for non-specialty mental health. Identifying Opportunities in Criminal Justice 9. Can you be a resource to law enforcement agencies? By developing open lines of communication with law enforcement agencies, you can serve as a resource on Medicaid expansion, including what may be happening in other jurisdictions. Even if it is not possible or appropriate for you to play this role, you could make an important contribution by simply connecting the right players. For example, you could encourage the county health department and/or healthcare providers to create a taskforce with law enforcement leadership to focus on the ACA and justice-involved population. 10. Has your state or county developed plans for healthcare enrollment of justice-involved populations? In Medicaid expansion states, law enforcement agencies that administer jails (e.g., sheriffs) and that supervise offenders (e.g. probation and parole) may already realize that getting their populations enrolled in healthcare coverage provides their agencies the potential for tremendous cost savings. If these agencies are already developing enrollment systems, you will want to monitor their implementation. If no plans yet exist, you have the opportunity to advocate for a creative solution whether inside a criminal justice agency or through linking with a state or county health department. Although Medicaid beneficiaries cannot generally access benefits while incarcerated, treatment of inmates can be reimbursed by Medicaid in cases where the individual has been hospitalized out of a correctional setting for a period of at least 24 hours. Moreover, even though a person cannot otherwise receive Medicaid benefits while incarcerated, they can enroll. Federal regulations clarify that eligibility for Medicaid enrollment is not affected by incarceration status. This means that people who are in jail can enroll in Medicaid if they are otherwise eligible (and if your state does not terminate benefits upon incarceration). California Example: AB 720 authorizes County Boards of Supervisors to place an entity in jails to enroll people into healthcare coverage before they are released. 11. How can existing and new alternative-to-incarceration programs be supported by Medicaid benefits? If you aren t already familiar, invest some time learning what alternative-to-incarceration programs are currently available in your county and/or state. These programs can include pretrial supervision, home detention, work furlough, work release, probation and parole. Once you understand these programs, you will be in a position to imagine how public and private healthcare coverage for everything from physical care to substance use disorder services could help support existing or new programs.
State and local governments, which are responsible for the healthcare costs of incarcerated people, might be open to safely expanding capacity and eligibility for custody alternatives for people who do not pose a significant public safety risk but that could benefit from healthcare in a community setting. You can also determine if alternative custody programs currently enroll or have plans to enroll people into health insurance. Sample Campaigns To give you a sense of how you might be able to apply the ACA in your work, consider the following possibilities. Broadening your coalition to include new funders and allies. Criminal justice reform is outside the experience of many funders and advocacy groups. Moreover, criminal justice reformers often find themselves at odds with law enforcement agencies. Seeing and talking about your work through a health lens may allow you to identify shared goals with new partners. For example, you may find several foundations ready to fund a campaign that will result in the healthcare enrollment of thousands of low-income residents in your state (who also happen to be justice-involved). In California, criminal justice reform advocates have received funding from health foundations to educate law enforcement agencies on opportunities presented by the ACA. You may also be able to partner with a wider array of faith leaders, victim advocates, advocates for low-income people, and labor organizations than you have before, if you focus on your shared commitment to expanding access to healthcare in the community. Furthermore, you can strengthen relationships with law enforcement entities who are interested in how the ACA can reduce the burden on their budgets while maintaining public safety. In addition to sheriffs and probation departments, your district attorney s office might be interested in how the ACA can be leveraged to help crime victims. Expanding Medicaid if my state has not already done so. If your state has opted not to expand Medicaid to lowincome adults earning below 138% of the federal poverty level, your advocacy could start there. A campaign to expand Medicaid probably already exists in your state. Expanding Medicaid can be accomplished through state legislation, but other options, such as executive action, may also be available. 6 While it may not be appropriate or possible for you to dedicate a significant amount of resources to this fight, you may be able to contribute by bringing a community safety frame and possibly law enforcement spokespeople to the discussion. Maximizing Medicaid enrollment of justice-involved populations. Consider advancing state legislation such as AB 720 in California that (1) requires individuals Medicaid enrollment to be suspended rather than terminated when they are incarcerated (to reduce the waste and burden of having to re-enroll after release), and/or that (2) requires that inmates be offered an opportunity to enroll in healthcare coverage prior to their release from jail or prison (to improve their chances of successful reentry and to reduce recidivism). You could also work directly with state and/or county agencies, particularly probation, parole, and prison/jail administrators, to create systems to ensure widespread enrollment of individuals under supervision or in their custody, particularly those who need (or are mandated to participate in) substance use disorder and/or mental health treatment. For example, San Diego County applied for and was awarded a state grant to create systems to enroll eligible individuals leaving jail or under correctional supervision. Expanding alternatives to incarceration. Page 7 Most states have a problem with over-detention of individuals in pretrial status. You could work at the state or county level to urge expansion of pretrial options, particularly for people likely to end up in court-ordered substance use disorder treatment anyway. Rather than waste limited jail beds to detain these folks for weeks or months, they could be offered Medicaid-funded substance use disorder services while still in pretrial status, opening up a jail bed, sparing the county jail budget, and speeding access to needed services. Similarly, many jurisdictions already have programs that place people with substance use disorders into treatment rather than jail (either pre- or post-conviction), thus reducing costs associated with prosecution and incarceration and improving outcomes for individuals. For example, Vermont Court Diversion 7 (such as the program in Chittenden County) 8 places people into treatment before conviction; Law Enforcement Assisted Diversion in Seattle 9 (and more recently in Santa Fe 10 ) diverts people 6 For example, in Ohio, a committee comprised of the state budget director and six appointed legislators known as the Controlling Board approved the Medicaid expansion by accepting funds from the federal government. Some states, such as Texas and Utah, have passed legislation that would require the Medicaid expansion decision to be approved by that state s legislature. 7 Find more at http://vtcourtdiversion.org/court-diversion/. 8 Find more at http://www.chitccd.org/. 9 Find more at http://leadkingcounty.org/. 10 Find more at http://tinyurl.com/m3wwjd3.
Page 8 before they are even booked. These programs and existing or new programs in your area could become more sustainable and replicable by tapping into Medicaid coverage for treatment. Revising sentencing law and practices. As states and counties consider how to rein in criminal justice costs, you may be able to make the case that the ACA changes the landscape so significantly that it is now possible to enact sentencing reform. For example, states could expand the number of offenses that are eligible for probation with court-ordered (and Medicaid funded) substance use disorder treatment. In California, the 2013 campaign to revise the penalty for personal drug possession used this message framing. Senate Bill 649 may have been the first time the State Legislature approved a felony level penalty reduction, though it was subsequently vetoed by the governor. You may also be able to advocate for legislation granting county sheriffs more discretion over who remains in a jail facility and who can be safely managed on alternative custody (e.g., home detention, GPS bracelet, residential drug treatment). If you do not have the capacity for a legislative campaign, you can still advocate for probation, district attorneys, public defenders, and the courts to consider health needs (especially those related to mental health and substance use disorders) when determining appropriate sentences. Reducing probation and parole revocations. Probation and parole in your state, as in most states, probably struggle to find funded substance use disorder treatment for everyone mandated to receive it. Unfortunately, the lack of access to treatment contributes to revocation and re-incarceration rates. You might be able to make the case to these agencies that they have a direct interest in ensuring that all eligible offenders under their supervision are enrolled in healthcare coverage and are able to access treatment that is reimbursable by federal funds. Together with other best practices in supervision, expanded access to treatment could help reduce recidivism rates and increase successful completion rates. It may be a challenge for probation and parole agencies to set policies that reflect the fact that relapse is part of treatment. If you can engage them on this, you should. When people struggle in treatment, they should get more treatment, not be shipped back to jail or prison. Critically, jail and prison administrators may support you in this, since they bear the cost and share the blame for people cycling through jails and prisons. Conclusion The ACA makes critical changes that can be effectively utilized by criminal justice reform advocates to amplify their efforts to reduce overincarceration, especially of people with mental health or substance use disorders, while improving the health and safety of their communities. Advocates do not need to be experts on the ACA in order to take advantage of its opportunities. The goal of this whitepaper is to provide you with the tools to assess your interest and capacity for incorporating the ACA into your current efforts, as well as to provide a few ideas on how to get started. Please share your efforts and experiences in this critical work, so that we can all work a little smarter and more effectively to reduce overincarceration and to build robust health systems that effectively address mental health and substance use disorders while respecting the dignity of every human being. Selected Resources for More Information Andrea A. Bainbridge, Bureau of Justice Assistance. (2012). The Affordable Care Act and Criminal Justice: Intersections and Implications. Retrieved from https://www.bja.gov/ Publications/ACA-CJ_WhitePaper.pdf. Californians for Safety and Justice. (2013). Enrolling County Jail and Probation Populations in Health Coverage: A Toolkit for Practitioners. Retrieved from http://libcloud. s3.amazonaws.com/211/6d/b/242/csj_health_enrollment_ Sept2013.pdf (some information is California specific). Community Oriented Correctional Health Services. (2013). Frequently Asked Questions: The Affordable Care Act (ACA) and Justice-Involved Populations. Retrieved from http://www. cochs.org/files/aca/cochs_faq_aca.pdf. Chloe Cockburn, Daliah Heller, & Gabriel Sayegh, American Civil Liberties Union & Drug Policy Alliance. (2013). Healthcare not Handcuffs: Putting the Affordable Care Act to Work for Criminal Justice and Drug Policy Reform. Retrieved from https:// www.aclu.org/healthcare-not-handcuffs-putting-affordable-careact-work-criminal-justice-and-drug-policy-reform. Council of State Governments Justice Center (2013). The Implications of the Affordable Care Act on People Involved with the Criminal Justice System. Retrieved from http://www. corrections.com/articles/33145. Kaiser Family Foundation. (2013). Summary of the Affordable Care Act. Retrieved from http://kaiserfamilyfoundation.files. wordpress.com/2011/04/8061-021.pdf. Susan D. Philips, The Sentencing Project. (2012). The Affordable Care Act: Implications for Public Safety and Corrections Populations. Retrieved from http://sentencingproject.org/doc/ publications/inc_affordable_care_act.pdf.
Appendix A ACA & Justice: Decision Points Grid Page 9
Page 10 Appendix B Systems Map Template