When individuals are released from carceral settings, they are roughly 10 times more likely to suffer a drug overdose than someone in the general public. This most often occurs in the two weeks following a person’s release, suggesting a need for greater support in the transition from incarceration to the community.

The U.S. Department of Justice estimates that between 37% and 44% of incarcerated individuals have a history of mental illness and that 63% of individuals in jail and 58% in prison have a substance use disorder. In addition, individuals in carceral settings have a higher prevalence of chronic conditions, such as hypertension, asthma, arthritis, and cancer.

Under the Medicaid Inmate Exclusion Policy, an individual’s Medicaid coverage is suspended or terminated upon incarceration. They can only become eligible for Medicaid again once they are released from carceral settings. For many, this is their only way of accessing health care services, as paying out-of-pocket is not a financially viable option. Yet, gaining access to health care coverage through the Medicaid application process can take months, leading to severe coverage gaps. These gaps, along with other factors, affect health and social outcomes related to recidivism. This fragmented care is concerning given that the mortality of individuals in carceral settings is higher than that of the general population, due to the risk of drug-related overdose and chronic health conditions.

To address this concern, several states are applying for a Medicaid section 1115 demonstration waiver, allowing incarcerated individuals to have Medicaid coverage up to 90 days before their release. These waivers are temporary and experimental projects approved by the secretary of the U.S. Department of Health and Human Services (HHS) to give states flexibility to experiment and pilot new programs. Each state is required to submit a proposal that the Centers for Medicare and Medicaid Services (CMS) reviews on a case-by-case basis. Once approved, these projects generally only last for an initial five-year period before needing approval for an extension.

In recent years, policymakers have attempted to find ways around the Medicaid Inmate Exclusion policy, which terminates or suspends Medicaid coverage for individuals upon incarceration. In 2023, HHS and CMS introduced the Medicaid Reentry Section 1115 Demonstration Opportunity, a new initiative to enhance health care for incarcerated individuals during their reentry into society. If approved through the application process, this opportunity enables state Medicaid programs to cover various health services — including substance use disorder treatment and treatment for chronic health conditions — up to 90 days before an individual’s expected release date. These services are typically excluded from Medicaid coverage due to longstanding statutory restrictions on providing health care to people in carceral facilities. Just last year, California became one of the first states to receive approval, paving the way through its Section 1115 Reentry Demonstration Waiver.

However, the approval process for section 1115 demonstration waivers can take time, especially as every state must submit a plan that is approved separately. In the past few years, there have been efforts to introduce legislation that would eliminate the need for 1115 demonstration waivers in this area. For instance, in the 117th Congress, the Medicaid Reentry Act of 2021 was introduced, which would reverse the limitations in the inmate exclusion clause for reentry purposes. Under this legislative proposal, eligible individuals who are incarcerated would be able to receive Medicaid 30 days before their release. More recently, the Medicaid Reentry Act of 2023 was introduced last year. Despite bipartisan support in both the House and the Senate, as well as among stakeholders in the health care and criminal justice systems, no legislation has been enacted. This is disappointing knowing that ensuring continuous Medicaid coverage upon release is a feasible and crucial step in addressing health disparities.

While some people are concerned that granting incarcerated individuals Medicaid coverage before release may strain already limited health care resources, it is actually a strategic use of those resources. Access to health care during the pre-release time can contribute to successful reentry — reducing the likelihood of recidivism and the associated costs to society. Studies have shown that offering Medicaid enrollment to incarcerated individuals before their release has been linked to higher utilization of outpatient services after incarceration. Similarly, critics may suggest that other reentry-related needs, such as housing, employment, and education, should be a higher priority, especially to reduce recidivism rates. While these are all important aspects of the transition from carceral settings to the community, these factors must all be addressed individually. Increasing access to health care and medication for opioid use disorder upon release is one vital step to providing more support during the transitional period.

Currently, no legislation has been passed to change the Medicaid Inmate Exclusion policy. Until then, states must apply for this Medicaid Reentry Section 1115 Demonstration Opportunity. While this is a critical and highly encouraged opportunity for states to take advantage of, it is also important to remember that this is only a temporary solution. Medicaid section 1115 demonstration waivers are only approved for three to five years with an option to renew. There must be continued efforts to ensure a permanent solution to this health inequity, and doing so would require a change in the existing law. The more time that passes without a more permanent solution, the more likely individuals are to recidivate or overdose after being released from incarceration.

Lydia Kener is a student of the Addiction Policy and Practice Master’s Program at Georgetown University Graduate School of Arts and Sciences.

DISCLAIMER: The views and opinions expressed in this piece are those of the author and do not reflect the views of the O’Neill Institute.