MHW: Field Weighs In On Criminal Justice Issues Impacting People With Mental Illness

NYAPRS Note: The urgency to address criminal justice issues has taken hold in New York, with action on all 3 fronts of the continuum.

Diversion: For a 4th straight year, the NYS Senate is funding another round of Crisis Intervention Team initiatives in localities across the state.

Rehabilitation: Advocates here have gotten the full support of both the Assembly and Senate for the Humane Alternatives To Long-Term (Halt) Solitary Confinement Act (, which includes a full ban on the use of solitary confinement for people with disabilities

Re-entry: NYS is about to submit a waiver application to CMS to restore Medicaid 30 days before release from prisons and jails.

Federal legislation has recently been introduced by Congressmen Paul Tonko of NY and Michael Turner of Ohio to direct HHS to issue guidance and encourage states who are considering similar waivers. See the article below for details.  

Field Weighs In On Criminal Justice Issues Impacting People With Mental Illness

Mental Health Weekly March 25, 2019

Field leaders and advocates are calling on government agencies to address the unnecessary incarceration of people with mental health needs and provide them with access to community-based services. Meanwhile, lawmakers have recently introduced bipartisan legislation that would allow states to expand access to treatment through Medicaid for individuals up to 30 days before their release from jails or prisons.

The bill, H.R. 1329: the Medicaid Reentry Act, was introduced in the House Feb. 25. The bill allows Medicaid payment for medical services furnished to an incarcerated individual during the 30-day period preceding the individual’s release. The bill is sponsored by Reps. Paul Tonko (D-N.Y.) and Michael Turner (R-Ohio).

A previous version of this bill sponsored by Reps. Tonko and Turner was signed into law as part of H.R. 6: the Support for Patients and Communities Act, during the 115th Congress. That bill directed the Department of Health and Human Services to issue guidance to states interested in exploring a policy of this kind in their Medicaid programs, as well as to convene a stakeholder group charged with developing best practices for how state Medicaid programs can improve care transitions for incarcerated individuals.

The legislation by Reps. Tonko and Turner would include access to mental health and substance use treatment and would lift the current Medicaid inmate payment restriction for all services provided in the 30 days prior to release and it would allow states to provide Medicaid services in the 30-day pre-release period by right, rather than by having to go through a waiver process, Harvey Rosenthal, CEO of the New York Association of Psychiatric Rehabilitation Services, told MHW.

Rosenthal noted that on the local front, New York is requesting federal approval to provide Medicaid services 30 days before prison and jail release for incarcerated individuals who are eligible for New York’s Health Home program (i.e., they have two or more chronic physical/ behavioral health conditions, serious mental illness or HIV/AIDS).

“New York Gov. Andrew Cuomo is poised to submit a waiver application to the CMS [Centers for Medicare & Medicaid Services] that will allow us to be the first state in the nation to restart Medicaid 30 days before release,” said Rosenthal. “This will allow people to leave jails and prisons already connected to behavioral health and medical treatment and housing plans a month before release.”

NAMI support

The federal bill could benefit anyone incarcerated with health needs and transitioning back into the community, Jennifer Snow, director of public policy for the National Alliance on Mental Illness (NAMI), told MHW.


The H.R. 6 legislation only took “baby steps” toward Medicaid reentry, she said. “It was a step in the right direction,” Snow said.


“Making the CMS take some action fell short of changing the law to allow Medicaid re-entry [services] in every state of the country,” she said. “We know when someone is transitioning from an incarceration and getting back into the community, it is a challenging time for people.” Snow pointed to a release from Tonko’s office that indicated that H.R. 1329 is responding to alarming evidence that individuals re-entering society after incarceration are 129 times more likely than the general population to die of a drug overdose during the first two weeks post-release.


The legislation will ensure people exiting jails and prisons can have a warm handoff to community based care once they leave prison, she said. Before, individuals had to scramble to find coverage once they were released from jail or had to reapply for Medicaid, Snow noted.


The legislation has been referred to the House Energy and Commerce Committee.


New York initiatives

New York’s approach to criminal justice reform is along the continuum of criminal justice involvement, said Rosenthal. The New York Senate has proposed $1.5 million for Crisis Intervention Teams (CITs) — avoiding arrests that act as the gateway to the criminal justice system, he said.


Among the criminal justice–related initiatives in New York state, advocates are also supporting a ban on the use of solitary confinement for people with psychiatric and other disabilities, with the alternative being a Residential Rehabilitation Unit, he said. Such a unit provides programs, therapy and support to address underlying needs and causes of behavior, with six hours per day of out-of-cell programming plus one hour of out-of-cell recreation, as proposed in the Humane Alternatives to Long-Term (HALT) Solitary Confinement Act that has been moving through the Senate and the Assembly, he said.


Currently, 900 people in New York state are in the “box,” Rosenthal said. “We shouldn’t have one person in there,” said Rosenthal. “The state is in a ‘promising position’ due to CIT, HALT and Medicaid reentry proposals in process.”


Technical Assistance Collaborative

The Technical Assistance Collaborative (TAC) earlier this month convened leading mental health policy and civil rights advocates in Washington, D.C., to discuss the incarceration of people with mental illness, specifically in the context of the Olmstead law. “In the 20 years since the U.S. Supreme Court’s landmark 1999 Olmstead decision, many states have made significant progress in serving people with mental illness in more integrated settings,” Martone told MHW.


He added, “In addition to addressing the needs of individuals with mental illness who are stuck unnecessarily in segregated, institutional settings like psychiatric hospitals, nursing homes and board-and care facilities, Title II of the Americans with Disabilities Act and Olmstead have been applied to systems that place people at risk of institutionalization. Unfortunately, too many people do not have access to comprehensive, community-based services and are therefore at increased risk of institutionalization in correctional settings.”


There are many local initiatives underway to address this issue in states and counties, through such efforts as the national Stepping Up initiative and other diversion programs, Martone said. “We believe that government agencies must recognize the unnecessary incarceration of people with unmet mental health service needs as a civil rights issue, and fully incorporate initiatives to prevent and end the criminalization of people with mental illness into their Olmstead planning efforts,” he said.


Ira Burnim, director of the Bazelon Center for Mental Health Law, had also attended the TAC gathering. Attendees wanted to take a look at what kinds of system changes are needed to reduce people with mental illness getting arrested and going to jail. “Far too many people with mental illness are going to jail,” he told MHW.


The issue also came up that many counties and cities would like to see Medicaid reimbursement for mental health care provided in jail. “We at the Bazelon Center have long opposed that,” Burnim said. Federal investments should be made to divert people with mental illness from jail and for re-entry efforts, he said. “Everyone recognizes that jails are not a good place for providing mental health treatment and not a good place for someone with a serious mental illness,” he said.


Burnim noted that it would be good for community providers to come into the jails and do assessments, and develop treatment planning and case management for individuals with mental illness prior to their release. “It would be good for Medicaid to pay for those activities,” he said. The incarcerated individuals with mental illness would already have a relationship with providers, allowing for a smooth transition for them to receive services from them, Burnim said.