The Affordable Care Act, Justice-Involved Individuals, and Criminal Justice Reform Kellen Russoniello – Staff Attorney, Health and Drug Policy ACLU of San Diego and Imperial Counties November 17, 2014

ACLU of San Diego and Imperial Counties We fight for individual rights and fundamental freedoms for all through education, litigation, and policy advocacy Focus areas: Criminal Justice and Drug Policy Reform Immigrants’ Rights Voting Rights Overlap of ACA and Criminal Justice System

Overview Health Issues of Justice-Involved and Victims Medi-Cal Eligibility/Coverage Financial Incentives Examples: San Diego & Imperial Counties What Does ACA Mean for Criminal Justice Reform? Decriminalization Proposition 47 Challenges and Opportunities

Health Issues of Justice-Involved Compared to the general population, the prevalence among justice-involved populations of: HIV infection is 8 to 9 times higher Hepatitis C is 9 to 10 times higher Tuberculosis is 4 times higher Serious mental illness is 3 times higher Substance use disorders is 4 times higher 12 times more likely to die w/in 2 weeks of prison release 80% of individuals in jail with chronic medical conditions have not received treatment in the community prior to arrest Up to 90% of people released do not have health insurance

Health Issues of Crime Victims Being a victim of crime increases risk of: Chronic health issues Substance use disorders Trauma/mental illness Crime victims may have medical bills related to the physical injuries Victims of violent crime are more likely to be low- income, and therefore less likely to be insured

Essential Health Benefits Ambulatory patient services Emergency services & hospitalization Maternity & Newborn Care Mental Health & Substance Use Disorder Services Prescription Drugs Rehabilitative & Habilitative services Laboratory services Preventive & Wellness Services Chronic Disease Management Pediatric Services, including dental & vision Medicaid expansion and all health plans offered through health benefit exchanges must cover:

Preventive Services Most health plans must cover preventive services for adults without cost-sharing, including: Alcohol misuse screening and counseling Depression screening Screening for certain chronic conditions Vaccines More preventive services available for women, including: Screening/brief counseling for domestic violence Screening for breast/cervical cancer Contraception

Medicaid Eligibility/Coverage About 20% of newly eligible are justice-involved Generally, Medicaid does not pay for expenses when person is an “inmate of a public institution” Exception: individuals admitted as inpatient in non- correctional medical facility for > 24 hours (e.g. hospital) Medicaid eligibility is not affected by incarceration status at federal level, can be suspended But most states terminate eligibility upon incarceration Medicaid is available to those in community, even if under supervision (e.g. parole/probation) No disenfranchisement! No open enrollment period – can enroll at any time

Financial Incentives Traditional Medicaid match rate between 50% and 74% Rate for newly eligible pop is 100% through 2016, declining between to 90% for 2020 and beyond Incentive to enroll incarcerated people to pay for hospitalizations Incentive for people with chronic conditions to receive care in the community

Health and Public Safety Medicaid coverage at release associated with 16% fewer subsequent detentions and more days in the community before next arrest for people with SMI Substance use disorder treatment offered to low-income adults associated with significantly reduced risk of arrest (up to 33%) Every dollar invested in substance use disorder treatment saves up to $12 in reduced crime, criminal justice, and healthcare costs Medicaid expansion is a public safety issue – but be careful with this argument!

What’s Happening in San Diego County About 90,000 jail bookings annually, about 62,000 of which are unique individuals Average jail population is about 5,900 (majority pretrial) Public Safety Realignment increased the number of people for whom local law enforcement is responsible

San Diego, cont. AB 720: State Legislation suspending Medicaid upon incarceration (up to 1 year) and allowing jails to offer enrollment assistance AB 720 AB 82: $1.8 million for enrollment assistance over 2 years (private funding) AB 82 Four-tiered system County eligibility workers assist folks with immediate medical needs (e.g. need to be hospitalized, HIV positive, and SMI) MOUs with community clinics to provide assistance with no funding AmeriChoice (United Healthcare) has hired 10 FTEs RFP for CBOs to provide assistance in final negotiations Enrolling in 6 of 7 jails and two probation offices Over 350 applications received so far in jails Over 60 referrals by probation officers with 53% no show rate

San Diego, cont. Partnerships Sheriff’s Department Probation Department District Attorney (victims) Health and Human Services Agency Chief Administrative Office Board of Supervisors Community clinics

San Diego, cont. Healthy and Safe Communities Initiative Community clinics, reentry service providers, and advocacy organizations Pressure the county to make system run smoother Dedicated to reducing criminal justice response to health issues Accomplishments Change of process to ensure active case at release Medi-Cal managed care choice form included in app Brief education about accessing healthcare Materials at discharge of how/where to access services Voter registration

San Diego, cont. Next steps: Ramp up to maximize reach Ensure people have benefit ID cards at release Ensure smooth transition to community care Scheduling appointments prior to release Record sharing while protecting privacy Engage Medi-Cal managed care organizations Mobilize community to shift money from traditional law enforcement to treatment and other necessary services

Imperial County 10,000 releases from two county jails each year MOU with CBO for enrollment at Day Reporting Center Moving to enrollment at booking Challenges: Treatment capacity Transportation Employment opportunity

ACA & Criminal Justice Reform ACA establishes a framework to build health-oriented responses to substance use and mental health issues Federal funds can help expand access to community health services Alternatives to arrest, prosecution, and incarceration more possible and sustainable Incentive to treat individuals outside of correctional setting Impetus for reform of sentencing law and practice

Proposition 47 Approved by 58.5% of CA voters on Nov. 4 th, 2014; Took effect Nov. 5 th ! Reduces simple drug possession and petty theft from felonies to misdemeanors Applies retroactively Reinvests savings into mental health/substance use disorder treatment, K-12 education, and victims’ services (estimated $1 billion in next 5 years alone) Advocacy is just beginning Funding to be decided via grant processes Ensure law enforcement is cooperating with spirit of law ACA can help ensure folks have coverage for treatment

Decriminalization ACA lays framework capable of addressing substance use disorders as a public health issue Expanded coverage and access to treatment reduces need to rely on criminal justice approaches to substance use APHA Policy Number (2013) – Defining and Implementing a Public Health Response to Drug Use and Misuse “[E]liminating criminal penalties for personal drug use and possession is an essential feature of a public health response to drugs and drug misuse, and APHA calls on state and federal governments to remove such criminal penalties.” APHA “[e]ncourages state governments to leverage resources potentially available through the Affordable Care Act toward effective community-based drug treatment, harm reduction, and physical and mental health services”

Portugal Portugal decriminalized personal possession of drugs in 2001 People are no longer arrested; instead cited and asked to appear in front of civil commission Commission determines whether to apply sanctions or recommend treatment Simultaneous expansion of prevention/treatment funding Results Decrease in HIV cases among injection drug users by 71% Drug-related deaths decreased 28% Youth and injection drug use rate decreased People seeking treatment substantially increased Reductions in prison overcrowding

Challenges Treatment Capacity Ensuring timely access to the right level of care IMD exclusion and alternatives to residential treatment Moving health decisions out of criminal justice system Ensure non-health professionals are not making health decisions (moving away from drug court models) Investment in other resources Housing – Inclusion as a Medicaid benefit? Transportation IDs Health disparities in the community Health education/navigation (cultural competency)

Opportunities Form/strengthen relationships with both agencies and community partners Proposition 47 implementation Steer criminal justice funding towards treatment and other necessary services Politics on criminal justice are changing; consensus building Using ACA to bolster harm reduction treatment modalities Expansion of covered benefits (e.g., health homes, housing)

Conclusions The ACA is a tool to improve the health of justice- involved individuals and crime victims Partnerships with new allies are possible Medicaid expansion is a public safety issue ACA and expansion of treatment is a path towards ending criminalization of drug and mental health- related offenses Your help is needed to maximize the potential in ACA for improving community health and safety

Resources ACLU - ACA: A Primer for Advocates ACLU & DPA – Healthcare Not Handcuffs: Putting the ACA to Work for Criminal Justice and Drug Policy Reform ACLU & DPA – Healthcare Not Handcuffs: Putting the ACA to Work for Criminal Justice and Drug Policy Reform CSJ – Health Coverage Enrollment of California’s Local Criminal Justice Populations CSJ – Health Coverage Enrollment of California’s Local Criminal Justice Populations CSG – Implications of the ACA on People Involved in the Criminal Justice System CSG – Implications of the ACA on People Involved in the Criminal Justice System Community Oriented Correctional Health Services Russoniello – The Devil (and Drugs) in the Details: Portugal’s Focus on Public Health as a Model for Decriminalization of Drugs in Mexico Russoniello – The Devil (and Drugs) in the Details: Portugal’s Focus on Public Health as a Model for Decriminalization of Drugs in Mexico

Contact Kellen Russoniello Staff Attorney, Health and Drug Policy