The Reincorporation of Prisoners into the Body Politic: Eliminating the Medicaid Inmate Exclusion Policy

Georgetown Journal on Poverty Law and Policy

Volume XXVIII, Number 3, Spring 2021

279

ARTICLES

The Reincorporation of Prisoners into the Body

Politic: Eliminating the Medicaid Inmate Exclusion

Policy

Mira Edmonds*

Incarcerated people are excluded from Medicaid coverage due to a provision

in the Social Security Act Amendments of 1965 known as the Medicaid Inmate

Exclusion Policy (“MIEP”). This Article argues for the elimination of the MIEP

as an anachronistic remnant of an earlier era prior to the massive growth of the

U.S. incarcerated population and the expansion of Medicaid eligibility under the

Patient Protection and Affordable Care Act of 2010. It explores three reasons for

eliminating the MIEP. First, the inclusion of incarcerated populations in

Medicaid coverage would signify the final erasure from the Medicaid regime of

the distinction between the “deserving” and “undeserving” poor and is

consistent with and in furtherance of the ACA’s ultimate goal of universal health

insurance coverage. Second, elimination of the MIEP furthers the bipartisan

criminal legal system reform focus on reducing recidivism through effective

reentry. Current efforts to use Medicaid to facilitate reentry require careful

workarounds of the MIEP. Elimination of the policy would reduce logistical

hurdles to ensuring continuity of care and enhance rehabilitation services

provided during incarceration. Third, eliminating the MIEP coalesces with the

goals of the emerging discourse around health justice, and specifically, its focus

on how social determinants of health drive inequities. In including a health

justice framework, this Article seeks to enrich the discussion in two directions. In

the first instance, health justice illuminates structural factors such as

discrimination and poverty that are root causes of health inequities and must be

addressed alongside immediate health needs. At the same time, this Article aims

to deepen the health justice discussion with a sharper focus on the role of

incarceration in perpetuating health inequities, and the ways in which extending

Medicaid access to incarcerated populations can improve treatment of

* Clinical Assistant Professor of Law, University of Michigan. My sincere thanks to Kimberly

Thomas, Allison Freedman, Jessica Steinberg, Debra Chopp, Gowri Krishna, Rachael Kohl, Matt Andres,

Tifani Sadek for their feedback and encouragement; facilitators and participants in the NYU Clinical Law

Review Writers’ Workshop and the AALS New Voices in Poverty Law Session for their guidance and

insight; Caitlin Kierum for her able research assistance; and the staff of the Georgetown Journal on Poverty

Law & Policy for their editorial support. © 2021, Mira Edmonds.

280 The Georgetown Journal on Poverty Law & Policy [Vol. XXVIII

immediate needs while also addressing structural inequities that cause and are

caused by justice system involvement.

I. INTRODUCTION ............................................................................................... 280

II. HISTORY AND CONTEXT OF THE MEDICAID INMATE EXCLUSION POLICY .... 285

A. Federal Funding Stimulated Mass Incarceration in the States ................. 290

B. The Sick and Aging Prison Population ..................................................... 292

C. Correctional Healthcare ........................................................................... 296

D. Limited Medicaid Coverage of Inmates Before the Affordable Care

Act 300 ............................................................................................................ 300

III. THE ACA MEDICAID EXPANSION AIMS FOR UNIVERSALITY ...................... 301

IV. SMART ON CRIME AND SMART ON HEALTHCARE ........................................ 304

V. HEALTH JUSTICE ........................................................................................... 311

A. Applying the Health Justice Framework to MIEP .................................... 315

B. Deepening Health Justice Analysis ........................................................... 317

VI. CONCLUSION ................................................................................................ 318

I. INTRODUCTION

Incarcerated and formerly incarcerated people in the United States have

long been treated as less deserving of basic human rights and full citizenship on

account of their crimes. In addition to numerous other forms of marginalization,

they have frequently been excluded from eligibility for public benefits, whether

through statutory design or subsequent rulemaking. It is in this tradition that the

Social Security Amendments Act of 1965, which established Medicaid and

Medicare, excluded from eligibility “inmate[s] of a public institution.” 1 This

provision has come to be termed the Medicaid Inmate Exclusion Policy (“MIEP”).

Initially, the MIEP had little practical effect. In its initial iteration, Medicaid

eligibility was limited to low-income families, children, pregnant women, seniors,

and disabled individuals, so the predominately adult male prison population was

already largely ineligible. Furthermore, in 1965, the entire state and federal prison

population was a paltry 210,895.2

1. The MIEP and the IMD Exclusion discussed below are both found in 42 U.S.C. § 1396d (“except

as otherwise provided in paragraph (16), such term does not include—(A) any such payments with respect

to care or services for any individual who is an inmate of a public institution (except as a patient in a

medical institution); or (B) any such payments with respect to care or services for any individual who has

not attained 65 years of age and who is a patient in an institution for mental diseases (except in the case of

services provided under a State plan amendment described in section 1396n (l)).”).

2. BUREAU OF JUST. STATS., U.S. DEP’T OF JUST., NCJ-111098, HISTORICAL STATISTICS ON

PRISONERS IN STATE AND FEDERAL INSTITUTIONS, YEAR END 1925-86, (1988),

https://www.ncjrs.gov/pdffiles1/Digitization/111098NCJRS.pdf.

N

o. 3] Eliminating the Medicaid Inmate Exclusion Policy 281

In recent years, however, the significance of the MIEP has grown enormously

because of two important and separate shifts: (1) the tremendous growth of the

state and federal prison population and (2) the significant expansion of Medicaid

eligibility. In 2020, there were nearly 2.3 million people incarcerated in the U.S.,

including 1,291,000 in state prisons, 631,000 in local jails, and 226,000 in federal

prisons.3 For “low-skill” Black men in particular, incarceration has become a

“routine life event,” with some 1 in 5 spending some portion of their lives

incarcerated.4 Under the Patient Protection and Affordable Care Act of 2010

(“ACA”), 39 states expanded Medicaid by raising income eligibility limits to

138% of the federal poverty level and adding categorical eligibility to include

adults without dependent children.5 These two policy shifts greatly expanded

Medicaid eligibility among the population of impoverished Americans, which

overlaps to a significant extent with the U.S. incarcerated population.6 Indeed,

some advocates and scholars consider Medicaid to be one of the most significant

anti-poverty programs in the United States today.7 Yet because of the MIEP,

3. Press Release, Wendy Sawyer & Peter Wagner, Prison Policy Initiative, Mass Incarceration: The

Whole Pie 2020 (Mar. 24, 2020), https://www.prisonpolicy.org/reports/pie2020.html. The 2.3 million

figure also includes juvenile correctional facilities, immigration detention facilit ies, Indian Country jails,

military prisons, civil commitment centers, state psychiatric hospitals, and prisons in U.S. territories. Note

that the jail figure dramatically understates the number of people incarcerated in a given year. Because of

short-term stays, there is high turnover of the jailed population, with some 10.6 million jail admissions in

2016, down from the 2008 peak figure of 13.6 million. U.S. DEP’T OF JUST. BUREAU OF JUST. STATS.,

NCJ-230394, JAIL INMATES IN 2016 (2016). In this Article, I am primarily focused on the population of

adult U.S. citizen inmates, as that is the population that would be newly eligible for Medicaid if MIEP were

eliminated. Although there are certain distinctions between jail and prison populations and conditions, my

arguments do not distinguish between the two except where otherwise specified.

4. Most statistical work about life chances of incarceration are based on incarceration rates from the

late 1990s, at which point it was estimated that 1 in 4 Black men would spend some time in prison. U.S.

DEP’T OF JUST. BUREAU OF JUST. STATS., NCJ-160092, LIFETIME LIKELIHOOD OF GOING TO STATE OR

FEDERAL PRISON (Mar. 1997). See also Bruce Western & Becky Pettit, Mass Imprisonment and the Life

Course: Race and Class Inequality in U.S. Incarceration, 69 AM. SOCIO. REV. 2 (2004) (finding that for

those born between 1965 and 1969, 3% of white men and 30% of Black men had served time in prison by

their early 30s, with 30% of those without college education and 60% of high school dropouts going to

prison by 1999); Bruce Western & Christopher Wildeman, The Black Family and Mass Incarceration, 621

ANNALS AM. ACAD. POL. & SOC. SCI. 221 (2009). Incarceration rates for Black men have fallen modestly

since 2008, so a 1 in 5 statistic is likely more accurate today, but precise recalculations have not been

reported in the research literature.

5. Overview of the Affordable Care Act and Medicaid, MEDICAID & CHIP PAYMENT & ACCESS

COMM’N, https://www.macpac.gov/subtopic/overview-of-the-affordable-care-act-and-medicaid/ (last

visited May 13, 2021) [hereinafter Overview of the ACA and Medicaid]. Under the statute, the level is

actually set at 133% of poverty, but with a 5% disregard.

6. Id. See also Adam Looney and Nicholas Turner, BROOKINGS INST., Work and opportunity before

and after incarceration (Mar. 14, 2018), https://www.brookings.edu/research/work-and-opportunity-

before-and-after-incarceration/.

7. See, e.g., Naomi Zewde & Christopher Wimer, Antipoverty Impact of Medicaid Growing with State

Expansions Over Time, 38 HEALTH AFFAIRS 132 (2019) (finding a .917% reduction in poverty in states

that opted into the ACA Medicaid expansion, for a total of 690,000 people lifted out of poverty); Dahlia

K. Remler, Sanders D. Korenman & Rosemary T. Hyson, Estimating the Effects of Health Insurance and

other Social Programs on Poverty Under the Affordable Care Act, 36 HEALTH AFFAIRS 1828 (2017)

(finding that one-third of overall poverty reduction from public benefits came from public health insurance

benefits, and that Medicaid had a larger effect on child poverty than all non-health means-tested benefits

combined); Benjamin D. Sommers & Donald Oellerich, The Poverty-Reducing Effect of Medicaid, 32 J.

HEALTH ECON. 816-32 (2013) (finding that even prior to the ACA, Medicaid was the U.S.’s third largest

anti-poverty program, keeping 2.6 million to 3.4 million people out of poverty in 2010).