Legal barriers to Medicaid remain upon release for many justice-involved individuals

New data released today by the Center for Public Health Law Research (CPHLR) at Temple University Beasley School of Law point to continued legal barriers for justice-involved seeking continuity of care through Medicaid coverage upon their release from incarceration, a population much more likely to face risk of overdose or death from opioid use disorder.

As of June 1, 2023, 24 states have clear laws or regulations facilitating suspension of Medicaid status upon incarceration in prison, which is encouraged by the Centers for Medicare and Medicaid Services (CMS) in addition to facilitation of reenrollment. Suspension reduces the time it takes to reenroll in Medicaid upon release.

"Considering the high prevalence of infectious disease, substance use disorder, and mental health needs among justice-involved individuals, facilitation of care upon release is critical for public health and to better address the opioid epidemic," said Jonathan Larsen, JD, MPP, Legal Program Manager at CPHLR and a lead researcher on this project.

At the beginning of 2023, CMS partially waived the Medicaid Inmate Exclusion Policy for the first time regarding California's Section 1115 waiver request, which—when fully implemented—will allow Medicaid coverage to begin 90 days before release to ensure continuation of care for substance use disorder and mental health treatment in the state. Washington followed suit in the summer of 2023.

Other data released today show that as of July 1, 2023, no other states joined Oregon in fully decriminalizing drug possession, an offense that leads to the arrest of more than one million people annually across the United States.

Oregon remains the only state to broadly decriminalize drug possession, as more Americans have grown supportive of gradual decriminalization, evidenced by increasing acceptance of decriminalization of marijuana. Research shows that criminalization of drug possession contributes to the marginalization of people with substance use disorders, results in stark racial disparities, and costs billions of dollars. And there is growing evidence that such policy reforms do not increase overdose death rates.

"Tracking drug decriminalization from this early point provides a benchmark for future policy surveillance of state efforts to decriminalize drug possession," said Larsen. "While we haven't seen a significant shift in decriminalization laws, more states are considering broader decriminalization of drug possession along with other harm reduction, treatment, and policy reforms that when implemented in concert may better address underlying causes of the opioid epidemic."

The two datasets, which are now available on the Prescription Drug Abuse Policy System, are both cross-sectional, with one capturing state laws that decriminalize drug possession as of July 1, 2023, and the other capturing laws in effect as of June 1, 2023, that govern how a person's incarceration may result in the suspension or termination of Medicaid status that has a major impact on access to care, including OUD treatment, upon release.

The data complement CPHLR's continued effort to offer opportunities to improve and transform United States drug policy. In November, CPHLR, FORE, and the William S. and Christine S. Hall Center for Law and Health released a comprehensive list of 84 opportunities accompanied by six white papers that describe a transformational model for US drug policy.