Health reform and correctional health care: how the Affordable Care Act can improve the health of ex-offenders and their communities.

• Author: Teitelbaum, Joel B.

Introduction I. Prisoners' Right to Health Care II. Health Status of Inmates and Former Prisoners III. The Affordable Care Act and the Health of Ex-Offenders and Their Communities A. Overview of the Affordable Care Act B. The U.S. Supreme Court Decision in the Case of National Federation of Independent Business v. Sebelius C. Effect of the ACA Medicaid Expansion on Inmates and Former Offenders D. Effect of the ACA on Individuals Incarcerated Pending Disposition of Charges E. Additional ACA Provisions That May Positively Affect the Health of Ex-Offenders and Their Communities Conclusion INTRODUCTION

A few years ago, the United States reached an infamous milestone: estimates of individuals incarcerated in the nation's jails and prisons pegged the number at one in ninety-nine. (1) Within that statistic dwell other macabre figures: on any given day there are more than 2.2 million adults locked up; (2) local jails process nearly thirteen million admissions each year; (3) per capita, the United States incarcerates more people than any other country in the world (4) and imprisons them for significantly longer than most other industrialized countries. (5) However one slices the data, the statistics tell a grim story.

Another story, wrapped inside the generalized statistics of U.S. jail and prison rates, is the unique story of offender health care. Unlike the vast American population not behind bars, individuals inhabiting the nation's jails and prisons enjoy a constitutional right to adequate health care. (6) This right, carved out of the federal Constitution's Eighth Amendment right forbidding cruel and unusual punishment by state actors, amounts to nothing less than an entirely separate system of health care for some of the nation's poorest and most vulnerable people. The underlying structure of correctional health care is unique, as well. In the non-correctional context, American health care is primarily delivered by a patchwork of providers and facilities, delineated by type of care needed: a patient seeks preventive care from her primary care physician in one location, obstetrical care from a specialist in another location, urgent care from a separate clinic, and so on. This is not the case in the correctional setting: the entire spectrum of care is often delivered to prisoners on site. (7) Looked at this way--a system of mandatory health care delivered under one roof designed for a relatively sick population--correctional health care has the potential to be a model in terms of the efficiency and quality of care provided.

Unfortunately, this modeling has yet to come to fruition. In fact, nearly the opposite has been true: prisoner health services historically have been substandard. (8) Even in spite of longstanding reform efforts, (9) unhealthy and unsafe living conditions in American jails and prisons and denials of legitimate requests for health care have been normative and frequently documented. (10) Furthermore, as a result of social factors beyond their control, jails and prisons are regularly boxed into providing care that would not meet the professional standard of health outside a correctional setting. For example, because many non-correctional state-operated treatment centers and hospitals for the mentally ill have been closed over the last couple of decades, correctional facilities are now a centerpiece of the mental health care "system" in the United States, (11) even though they are poorly equipped to treat large-scale mental illness properly and effectively. (12) Similarly, with inadequate substance abuse treatment services available in many communities, judges often purposely funnel arrested substance abusers into jails, knowing that treatment for their condition is mandatory. (13) Although laudatory on one level, this approach leaves correctional administrators and clinicians in a predicament: while they must treat these offenders, they have insufficient resources relative to the influx of offenders whose complex constellation of physical and social conditions demand more sustained treatment than they are able to provide.

Social determinants aside, the generally substandard quality of health care that the nation's jails and prisons provide represents a moral failure on the part of society, an important health policy issue, and a major public health concern for correctional facilities, their inmates and staff, and for ex-offenders and the communities they reenter upon release. Yet despite the moral implications and the generally poor health of inmates as a whole, the Patient Protection and Affordable Care Act ("Affordable Care Act" or "ACA") (14) did little to address head-on the care of incarcerated individuals. In fact, the ACA excludes incarcerated individuals from eligibility in one of the ACA's most important endeavors--the new insurance exchanges meant to guide and facilitate the purchase of health insurance coverage by individuals and small groups who historically have found affordable coverage beyond their reach. (15) That said, other aspects of the ACA may indirectly benefit the incarcerated population, including the expanded use of electronic medical records and the ability of individuals aged twenty-six and younger to remain on their parents' insurance plans. (16)

There are, however, two populations connected to correctional services that stand to gain--potentially dramatically--from the passage and implementation of the ACA: former offenders and the communities they return to upon release from jail or prison. The ACA could be revelatory for the former group, in part because the law provides states with the option to expand Medicaid eligibility to single adults at or below 133% of the federal poverty level (FPL), (17) regardless of disability status--a population group that is remarkably reflective of the incarcerated population (18) and one that long has struggled to gain access to any insurance coverage and, as a result, to health care services. (19) The Medicaid expansion could be particularly meaningful to ex-offenders who seek treatment for drug addictions, a common cause of illness, recidivism, and mortality within this population. (20) Beyond the Medicaid expansion, the ACA's inclusion of new funding for mental health care home visits, its expanded reliance on the use of medical homes, and its incentives to increase the use of electronic medical records should all help to improve the health of individuals leaving jails and prisons and returning to community living.

Similarly, by virtue of the fact that ex-offenders themselves stand to gain access to health coverage and expanded medical benefits, the communities to which ex-offenders return should also benefit from the ACA. Upon release, former inmates continue to experience high morbidity and mortality rates from infectious disease, drug overdoses, cardiovascular and other chronic disease, and violence. It is no surprise that ex-offenders can infect family members, friends, and strangers with diseases contracted and/or not treated in correctional settings, and family members, neighborhoods, and cities suffer as a result of the violence that often arises in connection with substance abuse.

This Article describes the ways in which passage of the Affordable Care Act may enhance treatment options for and improve the health of incarcerated individuals pending disposition, (21) individuals recently released from incarceration, and the communities into which recently released individuals return upon completion of their sentences. Part I describes prisoners' constitutional right to adequate health care. Part II provides an overview of the health status of incarcerated populations (22) and of individuals recently released from imprisonment, and also discusses the public health implications of low-quality correctional health care. In Part III, we describe the ways in which the ACA may improve the health of ex-offenders and their communities. We conclude with descriptions of some state and private innovations in correctional health care that are occurring alongside the implementation of the ACA and with concluding thoughts about the ACA.

1. PRISONERS' RIGHT TO HEALTH CARE

   As persons under government control, prisoners are almost entirely unique in their ownership of a constitutional right to a minimal level of health care. (23) The right, however, is amorphous and difficult to enforce: correctional facilities struggle to understand their health care responsibilities, (24) resources directed at meeting the right vary dramatically, (25) health care quality standards designed to be used in the correctional context have not been systematically tested (26) (and where tested, there is little evidence showing that an institution's adoption of quality standards does anything to improve the well-being of inmates) (27), and in response to a rise in prisoner litigation, Congress enacted the Prison Litigation Reform Act ("PLRA") (28) in 1996 to make it harder for prisoners to file federal lawsuits aimed at remedying what they believe to be substandard health care and unhealthy living conditions. (29) These challenges, in our view, help to explain the poor health of prisoners and recently released former offenders, discussed infra. We describe in this section the evolution and scope of prisoners' right to health care in order to juxtapose it and its effectuation against the general health of the incarcerated population and that of ex-offenders who have regained their freedom.

   Historically, jails and prisons were built to incarcerate and rehabilitate the poor. (30) Then, in response to nineteenth century reformist theories of punishment, the number of jails and prisons dramatically increased. (31) Idealism regarding the benevolence of prison rehabilitation, however, quickly clashed with the realities of prison life: buildings crumbled, inmates and their jailors fought, and the public became disenchanted with the idea that jails and prisons...