Washington (March 23, 2023) - U.S. Senators Edward J. Markey (D-Mass.), Bill Cassidy, M.D. (R-La.), Jeff Merkley (D-Ore.), and Thom Tillis (R-N.C.) and U.S. Representative David Trone (MD-06) introduced the Due Process Continuity of Care Act. The bicameral bill amends Medicaid Inmate Exclusion Policy (MIEP) to ensure that pre-trial detainees are not kicked off Medicaid prior to ever being found guilty of a crime. MIEP denies federal benefits to individuals who are incarcerated and applies both to those who have been found guilty of a crime and those held pending adjudication who are still presumed innocent (Pretrial status detainees).

This denial of federal benefit without due process also shifts the full financial burden of health care of inmates onto local jails and taxpayers. The weight of this burden is severely straining local jail budgets and resulting in unmet care needs of pretrial status detainees, which comprise approximately two-thirds of people held in local jails.

“There’s no reason for someone to lose access to their health insurance simply because they can’t make bail,” said Senator Markey. “As we work to reimagine our criminal justice and health care systems, we must undo the damage caused by draconian policies that have locked health care in an ivory tower, available to only those who can afford it.”

“Americans are innocent until proven guilty. This legislation is consistent with the bedrock principle,” said Dr. Cassidy. 

“Too many Americans lose their health insurance just because they can’t make bail,” said Senator Merkley. “In America, we believe in innocent until proven guilty—so health insurance coverage must not be taken away from those awaiting trial. Congress must uphold this core tenet of our judicial system and protect Medicaid coverage for all Americans awaiting trial. Whether or not you have money for bail shouldn’t determine whether you lose your health coverage.”

“It costs taxpayers money and doesn’t make sense to strip people of Medicaid coverage at the same time they’re still presumed innocent under the law,” said Senator Tillis. “This bill simply ensures the law works as intended: Medicaid coverage lapses only after an individual is found guilty by our criminal justice system.”

“Our criminal justice system guarantees folks that they are presumed innocent until proven guilty, but preventing pretrial detainees from accessing Medicaid violates that right,” said Representative Trone. “We know that a high percentage of incarcerated individuals suffer from mental health conditions and substance use disorders – this policy is only making matters worse. This effort will restore detainees’ constitutionally protected rights and ensure access to much-needed healthcare.”

The bill also provides $50 million in planning grant dollars for the HHS Secretary to award to states with the goal of providing additional support to states, counties and local jails for implementing this policy, improving the quality of care provided in jails, and enhancing the number of available providers to treat this population.  

Local jail admissions resemble the emergency department, receiving those with the highest acuity of mental illness and substance use disorder. Most inmates in local jail have had a mental illness or substance use disorder diagnosis.

Incarcerated people experience chronic diseases, mental illness, and substance abuse at higher rates than the general population. More than 95 percent of local jail inmates eventually return to their communities, bringing their health conditions with them.

The Due Process Continuity of Care Act will:

• Amend the MIEP to allow for Medicaid coverage of health care services for pre-trial detainees;
• Provide planning grant dollars to states for implementation of the MIEP repeal; and
• Bring financial relief to state and local taxpayers for the cost of providing services to this population.

The bill is endorsed by the following groups: National Association of Counties, Major County Sheriffs of America, and National Sheriffs’ Association.

“The Medicaid Inmate Exclusion Policy often interrupts needed medical, mental health, and addiction treatment for jail inmates who disproportionately suffer from chronic medical conditions and substance use disorders,” said National Association of Counties Executive Director Matthew Chase. “Stripping or suspending federal health benefits from pre-trial detainees, who are presumed innocent, presents constitutional issues, and also leads to poorer health outcomes and higher recidivism. We thank Senator Cassidy for introducing this important bill that will ensure pre-trial detainee access to Medicaid, a key measure in protecting the care continuum and strengthening public safety.”

"Sherrifs applaud Senator Cassidy's continued commitment to eliminating the Medicaid inmate exclusion, Congress must follow his lead and terminate this outdated and unconstitutional policy. This would be another great step in helping sheriffs with the consituttion of care that their community members need," said Sherrif Greg Champagne, St. Charles Parish, LA, Natinal Sherrifs' Association President."

Background

A modified version of the Due Process Continuity of Care Act was signed into law last Congress, but these provisions only applied to minors.

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