CMS Guidance on Reentry Demonstrations Creates Opportunities for State Advocacy
Traditionally, Medicaid has not covered services for anyone who is an “inmate of a public institution.” Because of this long-standing exclusion, incarcerated individuals have no access to Medicaid-funded services and resources, and may face delays getting access upon release. In 2018, Congress passed the SUPPORT Act, requiring the Centers for Medicaid & Medicaid (CMS) to issue guidance for states to apply for demonstration projects under section 1115 of the Social Security Act to improve care transitions for individuals who are “soon-to-be former inmates.”
On April 17, 2023, CMS issued this long-awaited guidance ”inviting states to apply for “‘reentry demonstrations.’” These proposed reentry demonstrations would create a temporary, limited carve-out to the “inmate exclusion” for approved states, if they meet certain requirements and milestones. While CMS has already approved one such demonstration in California, the new guidance provides much more detail regarding what it expects from other states seeking such authority. Requirements include:
● Providing a minimum set of services. States will at least be required to provide case management, Medication Assisted Treatment (MAT), and a 30-day supply of all prescription medications upon release. States can opt to include additional services.
● Suspension, not termination, of, Medicaid eligibility for the entirety of an individual’s incarceration. States will have a 2-year “glide path” to comply with this requirement.
● Preparing a “reinvestment plan” to prevent incarceration-related costs to the federal government.” States must reinvest any savings realized by replacing current state and local health care spending with federal Medicaid funding into activities that increase access to or improve care for incarcerated or recently released individuals or must be invested in health related social services.
CMS also strongly encouraged states to have individuals who have been formerly incarcerated help in the design and implementation of state proposals. CMS also clarified that states could be eligible for federal financial participation for up to 90 days of services provided pre-release. Last, while CMSt prefers “in-reach” by community-based providers, providers of pre-release services may either be carceral health care providers or community-based providers.
While the 42-page guidance provides lots of information regarding what will be expected of states applying for such demonstrations, more questions remain. Advocates can and should raise essential questions about the details to their state:
● How will your state meaningfully involve individuals with lived experiences in both the design and implementation of the demonstration?
● Will your state require the pre-release services to be provided by community-based providers? If not, how will the state ensure that the supports and services provided in the carceral setting are non-punitive, confidential, person-centered, and non-coercive?
● What approach will your state use to ensure that individuals are not terminated from Medicaid upon incarceration? How will the state ensure that eligibility and benefits are suspended and not terminated? Will your state need to take the full two years to comply, or can they do so sooner?
● What other services should your state include in the pre-release package, in order to promote reentry? Is access to medical equipment needed? Peer support? Family planning services? Assertive Community Treatment? Supportive Housing and Employment?
● Which populations will your state cover? Will they include individuals who may be held prior to disposition, with indeterminate release dates?
● How will the 90 days “pre-release” be measured? How will the state coordinate care for those individuals who leave prison but are sent to a “halfway house” or other setting where the “inmate exclusion may apply?
As with all 1115 demonstrations, the public should have an opportunity to comment on the newly-proposed demonstration. However, there are already at least 15 states with pending waivers and closed comment periods. If there is a good argument that the new CMS guidance will require states to substantially alter their requests, advocates should press for additional opportunities for input, including asking states to reopen the comment period.
