By Blake N. Shultz and Pooja Agrawal
While individuals with recent criminal justice involvement represent only 4.2% of the population, they make up 8.5% of all emergency department (ED) expenditures, which translates to an additional $5.2 billion in annual spending across the health care sector.
The federal government has complete control over access to medical care for incarcerated individuals and immigrants in detention facilities, and is primarily responsible for the quality of the sanitation, nutrition, and shelter accommodations. Despite this level of control, conditions in many detention facilities and prisons are exceptionally poor.
Over eighty percent of recently released prisoners are uninsured, and upon re-entry into society they struggle to obtain quality medical care for both pre-existing conditions and those that may have been caused or exacerbated by detention. As they often do not have a medical home, upon release many will present to emergency departments (EDs) for their health care needs, and, because of the low rates of insurance coverage, hospitals are left to pick up the bill for the gaps in care created by the government’s deficiencies.
The disaggregation of government detention facilities and financial responsibility for downstream health care costs of released individuals creates a “regulatory moral hazard,” in which the government has little incentive to invest in the health and health care of incarcerated and detained individuals. In the absence of federal reform incentivizing investment and reducing cost-shifting to the health care sector, hospital systems should build interdisciplinary care teams focused on formerly incarcerated and detained individuals while investing in comprehensive, community-based health care.
The Prison System
Conditions in American prisons are so harmful to inmate well-being that recent reports describe a “Jail Health-Care Crisis.”
Solitary confinement, frequent exposure to violence, lack of adequate exercise, and poor nutrition during incarceration directly harm long-term health. For individuals with substance use disorders or mental illness, which some studies suggest may include up to 64% of the prison population, lack of access to treatment exacerbates preexisting conditions. Effective mental health therapy requires significant, consistent investment in qualified mental health personnel and timely access to medication. Budgetary constraints, which are particularly severe for private prisons seeking to turn a profit, are anathema to comprehensive mental health care.
A large percentage of jails outsource medical services to private, for-profit corporations, the two largest of which have been sued at least 1,500 times in the past five years. As a response to these conditions, California recently banned private prisons and immigrant detention facilities. This is only a partial solution, because conditions are also poor within government-administered facilities and private corporations continue to receive contracts for discrete services within publicly-owned facilities.
Given these conditions, the poor long-term health outcomes and high rates of emergency department use by recently incarcerated individuals is not surprising. Binswanger et al. found that the likelihood of death for individuals in the first two weeks following release from prison was 12.7 times higher than that of the general population. Frank et al. found that of 1,434 ex-prisoners 31.7% had three or more ED visits and 7.1% had ten or more visits within the first year after release. Compare this to the general population, where only 6.5% of adults over age 18 had two or more ED visits. These visits were predominantly for three diagnosis categories: mental illness, substance use disorders, and ambulatory care-sensitive conditions such as diabetes—all of which are best addressed by long-term management and prevention.
Incarceration also disrupts insurance coverage. Ex-prisoners are more likely to be uninsured, particularly in states that declined to expand Medicaid under the Affordable Care Act. Under the Emergency Medical Treatment and Active Labor Act (EMTALA), hospitals must provide emergency medical care without regard to insurance status, providing the recently released with a backstop option. While EMTALA provides a crucial safety net, it also shifts long-term costs of government-administered detention and incarceration onto the health care sector. Furthermore, private companies providing medical care in prisons often indemnify state and federal governments from liability for adverse health outcomes. This paradigm collectively discourages the government from investing in the contemporaneous health and wellness of incarcerated and detained persons.
Migrant Detention Centers
Rare glimpses into migrant detention centers, many of which are run by the same private prison companies mentioned above, provide further support for the existence of a “regulatory moral hazard.” News reports are replete with descriptions of overcrowded, unsanitary and often inhumane conditions, where, for example, immigrants receive no soap, and are housed together with ill individuals. Upon release, the burden of long-term health care for these largely uninsured individuals falls largely on the private sector.
The picture of medical care usage in immigrant populations is complicated. Research suggests that immigrants tend to be healthier and use medical care resources with less frequency than the general population. However, the immigrant population also tends to be younger, and studies suggest that fear of deportation and stigma serve as barriers preventing migrants from seeking regular medical care. Additionally, prior studies were largely conducted on the general immigrant population, not recently detained migrants or those currently held in detention centers. Since 2004, there have been 193 reported deaths in detention facilities, with documented exposure to communicable diseases, poor nutrition, and physical and verbal abuse. It is likely that individuals released from these facilities would have worse long-term health outcomes than those previously reported.
Since 1996, undocumented immigrants have been prohibited from accessing federally funded insurance programs such as Medicare and Medicaid under the Personal Responsibility and Work Opportunity Reconciliation Act (PROWRA). Even after obtaining legal status, most immigrants are barred from federally-funded benefits by PROWRA for five years. As a result, 42% of undocumented immigrants and 18% of lawfully present, nonelderly immigrants are uninsured, compared with 11% of the general population. The number of uninsured immigrants could increase dramatically under the recent Rule on Public Charge Ground of Inadmissibility. As with the ex-prisoner population discussed above, the uninsured immigrant population often use emergency departments as their medical backstop.
Emergency coverage under EMTALA, while a moral and practical imperative, again insulates the government from the costs of poorly provided health care within migrant detention facilities. As discussed above, EMTALA requires hospitals to provide emergency care without regard to a patient’s insurance status. Since undocumented immigrants tend to be uninsured and generally poor, hospitals are compelled to write off these emergency services as uncompensated care. By some estimates, only 65% of this uncompensated care is financed through government funding, leaving the health care sector to pick up billions in excess costs. Furthermore, government support provided by safety-net funding such as disproportionate-share hospital (DSH) payments faces enormous budget cuts that could further exacerbate the burden on hospitals.
The temporary nature of detention and lack of public transparency serve only to further disincentivize investment in detainee health and wellness. In order to safeguard the health of these vulnerable populations, physicians and hospital administrators must specifically target this “regulatory moral hazard” when proposing reforms. While the most critical reforms must ultimately occur within the government, there are steps hospitals and physicians can take.
What can health care providers do?
Broadly, provider-focused reforms should encourage the creative use of existing funds and resources to provide comprehensive care to recent detainees and prisoners. This is no small feat: medical services are often expensive and not reimbursable, and there will likely be a lag before any improvements in aggregate health outcomes or financial savings are seen. Additionally, metrics for measuring program effectiveness are complicated, the regulatory landscape changes frequently, and long-term investment is both expensive and challenging to achieve politically. Despite these limitations, there are a number of ways providers can play a key role in reforming this system.
First, physicians can encourage the formation of medical legal partnerships (MLPs) built for formerly incarcerated or detained individuals. These partnerships, often called “transitions clinics,” combine legal advocacy, social work, and medical care, among other services, to create a multi-faceted and specialized approach to health care. Through these programs, lawyers can identify patients who have legal claims against government agencies, and can work together with physicians to identify and document evidence of abuse and neglect. Social workers can help identify community resources for recently released individuals and medical clinics provide a hub for health care.
Second, and similarly, hospitals can use funds from private philanthropy or from state Community Benefits Programs, such as those in Massachusetts, to found community clinics or outreach programs to identify and serve the health needs of vulnerable populations.
Third, physicians can form private-public partnerships to provide temporary health care workers and periodic medical screening for detainees and prisoners. This would reduce the incentive to contract with for-profit entities, and could be an efficient preventative expenditure by hospitals facing downstream costs.
Federal reform and long-term solutions
Ideally, state and federal governments would be incentivized to consider and invest in the long-term health of the detained and incarcerated, and address the disparities and deficiencies in the regulations that they promulgate.
Publicly reported mandatory health impact and cost-effectiveness analyses could help by leading to better accountability in the system. Prohibiting contractual indemnification of the government by private entities administering federally-funded medical care would enhance scrutiny and lead to fairer practices. States can use Medicaid Section 1115 demonstration waivers and block grants to provide insurance coverage for at-risk populations and reduce emergency care use. Finally, federal programs that administer health care or somehow affect prisoner or detainee health should have multi-disciplinary independent advisory councils made of health care providers, social workers, and attorneys. These councils would assist in program development and assessment, help prevent interruptions of care/coverage, and identify resources for mental health and substance abuse treatment.
Since government-focused reforms are slow, physicians should play a vital advocacy role in identifying and targeting issues faced by the vulnerable ex-prisoners and undocumented immigrant populations. Recognizing the current long-term cost-shifting at play is a critical first step towards achieving comprehensive health care. By advocating for policies that realign costs and increase investment at the federal level, physicians can combat the “regulatory moral hazard” and encourage the government to act responsibly, in ways that do not worsen the health of those relying on it.
