By Andrea C. Armstrong
COVID-19 is not the first pandemic within prisons. Modern history is littered with examples of disease outbreaks in carceral spaces, including tuberculosis, influenza, and MRSA. Like these earlier carceral pandemics, the over 620,000 COVID-19 infections and 3,100 related deaths among incarcerated individuals to date simply expose how U.S. health law and policy fails to protect people in custody.
Only incarcerated people have a constitutional right to healthcare in the United States. That right, however, is rendered toothless when supplied through a punitive system that lacks meaningful standards and robust oversight.
Here is what we know — despite the secrecy that shields penal institutions — about carceral health care.
We know that incarcerated people have higher rates of certain chronic diseases, including hypertension, diabetes, hepatitis, and asthma, than non-incarcerated people. We know that medical illness is the leading cause of deaths in prisons and jails, and that people who have been incarcerated have shorter life spans than non-incarcerated people. Incarcerated people were also two and a half times more likely to die from COVID-19, according to a recent study published in JAMA.
We know that incarcerated patients often present at younger ages with more advanced stages of disease when seen by external health care providers. And we know that our prisons, jails, and detention centers employ doctors with suspended and limited licenses as the exclusive source for health care for incarcerated people.
Carceral health care occurs within a regulatory vacuum. There are no national mandatory standards governing health care access or delivery behind bars. Some states have adopted minimum standards for prisons, jails, or both, but in Louisiana, the standards governing health care in jails have not been updated since 1980.
Professional organizations, including the National Commission on Correctional Health Care (NCCHC), the American Correctional Association, and the American Bar Association, have issued voluntary standards and guidelines. However, a federal judge recently found Arizona’s prison health care constitutionally inadequate, despite NCCHC accreditation of Arizona’s policies and procedures. These voluntary standards, within the U.S. “patchwork” system of incarceration, ultimately fall far short of the extensive regulatory framework governing Medicare/Medicaid, which shapes health care for over 83 million people in the U.S.
One of the largest failures of U.S. health law and policy is the exclusion of people in custody in prisons, jails, and detention centers from Medicaid. Medicaid, subject to a few narrow exceptions, does not provide financial payments for “care or services for any individual who is an inmate of a public institution.” But the Centers for Medicare and Medicaid Services (CMS) do much more than simply administer financial payments for services. CMS exerts a “tremendous influence” on the practice of clinical medicine. CMS issues rules and guidance on licensing requirements, medical facility operations, and data reporting, among a wealth of other topics. CMS also provides independent oversight of labs’, providers’, and facilities’ compliance with “Medicare health and safety standards.”
Compare, for example, federal treatment of nursing homes with prisons. Both nursing homes and prisons are congregate living spaces housing people at higher risk for serious complications from COVID-19. Over the course of the pandemic, CMS issued new rules requiring reporting on infections, deaths, staffing shortages, and supplies; vaccines for health care professionals; and education and reporting on vaccinations, among others.
None of these rules apply to state and local carceral spaces, which are outside of CMS’ regulatory orbit. Instead, the primary source of data on COVID-19 vaccinations, infections, and deaths in carceral spaces began as a volunteer project at UCLA. And states have adopted a haphazard approach to COVID vaccines, with only a “handful of states” requiring them for prison staff.
Similarly, independent oversight of health care behind bars is also lacking. Independent oversight can build transparency and accountability for carceral facilities, including with respect to the delivery of health care. But independent oversight, though growing, remains rare for the majority of prisons, jails, and detention centers in the United States.
State departments of health, another potential source for standards and oversight, are often invisible when it comes to health care behind bars, despite general (and discretionary) authority during public health emergencies.
The COVID-19 pandemic highlighted the isolation of carceral spaces from regulation and oversight by state departments of health. A November 2020 study examined collaboration between state departments of health and state departments of corrections and found that only nine states “met all four criteria of sharing data, issuing guidance, updating guidance, and including information on the working relationship between the DOH and DOC on state websites.”
To realize the potential promise of health law and policy for incarcerated people, efforts should focus on anchoring health care behind bars to the quality of health care provided in communities.
Repealing the Medicaid exclusion would be one significant step towards improving carceral health care, though there would be significant implementation challenges in translating certain benefits to the carceral context. Experts have also suggested transferring responsibility for carceral health care to federal, state, and local public health authorities to deepen independence of health care decisions from prison management concerns.
While both of these reforms are long-term and structural, short-term reforms such as decarceration and independent medical advisory boards would, respectively, reduce the number of people harmed by unconstitutional health care immediately, and ensure community standards of care guide decision-making for incarcerated patients.
Andrea Armstrong is the Law Visiting Committee Distinguished Professor of Law at Loyola University New Orleans, College of Law. Prof. Armstrong participated in a three-year study of effects of incarceration on health service use in Louisiana through an Interdisciplinary Research Leader grant from the Robert Wood Johnson Foundation, shared with the Voice of the Experienced and LSU Center for Healthcare Value and Equity.