State Courts and the Promise of the Affordable Care Act
PETER COOLSEN, COURT ADMINISTRATOR, CRIMINAL DIVISION, CIRCUIT COURT OF COOK COUNTY, CHICAGO
MAUREEN MCDONNELL, DIRECTOR FOR BUSINESS AND HEALTH CARE STRATEGY DEVELOPMENT, TASC, INC.
The Patient Protection and Affordable Care Act (ACA) holds considerable promise for the criminal justice system, accomplished primarily through the expansion of Medicaid to low-income adults. Whether that promise is realized will depend, in large part, on successful collaboration among state courts and other criminal justice stakeholders.
The Affordable Care Act (ACA) presents a unique opportunity for state courts. For over 40 years, the possession and abuse of illegal drugs have been a dominant theme in our criminal justice system. Courts have addressed addiction among criminal defendants primarily through drug courts. Although drug courts have been effective in treating addiction, the number of individuals in drug court treatment has been fairly modest compared to the need. The ACA, by making behavioral health care available to almost all individuals in the criminal justice system, has the potential of bringing substance abuse treatment to scale.
Most criminal court judges manage caseloads with untreated addiction cases. Increased access to care in the community, especially for behavioral health, could help decrease relapse and recidivism, increase public health and safety, bring about substantial financial incentives, and improve the quality of community life. However, this requires a broad systems change so that criminal courts can leverage the ACA and form linkages from the justice system to treatment in the community.
Basics of the Affordable Care Act
The Affordable Care Act is the most comprehensive health-care reform legislation since the passage of Medicare and Medicaid in 1965. The ACA is in its early stages, and its implementation and impact on justice populations and the public at large differs in every state. The ACA has two principal mechanisms for expanding insurance coverage: 1) expanding Medicaid to cover significantly more low-income families and 2) “subsidizing the purchase of private health insurance through an ‘exchange,’ where consumers can compare health plans offered by different insurance companies” (Nixon, 2013). Exchanges provide standardized, government-regulated health-care plans from which individuals may purchase health insurance. Access may be through a state-based exchange or the federal exchange. Adding to the complexity, only about half of the states have expanded Medicaid coverage, while eligibility and coverage options differ across the nation. In states with full expansion of Medicaid and the subsidized insurance coverage through the federal or state exchange, it is estimated that the number of people in the justice system who are eligible for coverage will go from 1 in 10 to 9 in 10.
For states that are only participating in the insurance exchange, also known as the Marketplace, the ACA will still affect the justice system; a single adult making more than $11,170/year (100 percent of the federal poverty level) can purchase insurance with significant subsidies. Premium subsidies and cost-sharing subsidies—which significantly reduce out-of-pocket costs for deductibles and co-pays—are available for low-income adults purchasing insurance through the exchange. For the criminal justice population, we expect that probation, which contains the largest number of employed people under supervision, will be the most significantly affected by new access to subsidized insurance through the exchange.
The ACA’s Medicaid expansion and exchange health plans require ten essential health benefits, which include substance abuse and mental health treatment. This critical expansion of treatment in the community provides the foundation for fundamental change in the justice system. It is important to note that states such as New York have had these more generous Medicaid eligibility requirements for low-income adults for 20 years or more, and the ACA has also allowed for improvement and innovation for programs serving the criminal justice population. For example, some states have recently implemented “health homes” (intended for individuals with two or more chronic medical conditions, along with chronic and persistent mental illness) specifically for people who have been involved in the justice system.
Role of the Courts and the Community Justice System
The role of the courts in the implementation of the ACA is limited, but critically important. On a systems level, courts can affect health-care policy as “informed partners,” facilitators, and conveners. Through their already influential role in communities, the courts can help inform and influence policies around substance abuse and mental health treatment. As conveners, courts can bring together stakeholders from both the criminal-justice and health-care communities to discuss and shape policy around benefits. For individual cases, courts may play both a direct role in the enrollment of defendants and a broader oversight and collaborative role with community treatment providers.
Criminal courts face three issues related to the implementation of the ACA: the availability of treatment when needed (i.e., capacity), the quality of care being provided to defendants, and the creation of effective linkages with community treatment providers. Many individuals in the justice population have complex medical and behavioral health-care needs; at the same time, there is a lack of capacity to integrate physical and behavioral health care in the community. Community health-care providers are facing many challenges in adapting to health-care reform, including the shift of payment models from volume to value. The courts can play a leadership role in this area by engaging community providers as full partners in planning for ACA. Through collaboration and communication, treatment systems can provide a more holistic approach to confronting rising demand for services, and the courts can help them tackle emerging challenges. Creating networks with community stakeholders can increase capacity and the ability to address the influx of newly eligible clients.
To fully leverage the resources of the ACA, all courts, regardless of their size, and justice agencies will need to address the following four challenges:
- how the justice system will assist all people under supervision in applying for coverage for which they are eligible;
- how people with untreated, or undertreated, serious mental illness, severe substance use disorders, and chronic medical conditions will be identified and linked to care in the community;
- how substance abuse, mental health, and medical treatment will be expanded in the community; and
- how these new services will be used to divert more people from jail and prison to community supervision with the requirement that they participate in necessary services.
Early Results: The Medicaid Waiver in Cook County, Illinois
Work done in Cook County serves as a prototype for understanding full implementation of the ACA in the justice system. CountyCare began as an Illinois Medicaid 1115 early expansion waiver program that permitted the Cook County Health and Hospitals System to enroll low-income, nondisabled adults 19 through 64 years of age, living in Cook County, into the ACA-authorized Medicaid expansion before January 1, 2014, when all qualified Illinois residents became eligible for Medicaid coverage.
The waiver was approved in the fall 2012, and the first CountyCare member was approved in February 2013. Coinciding with the waiver, Judge Paul Biebel, Jr., presiding judge of the Criminal Division of the Circuit Court of Cook County, and leaders from Treatment Alternatives for Safe Communities (TASC) developed the Justice and Health Initiative (JHI) and led a steering committee and work groups to start implementing the ACA for this community. The JHI brought together various Cook County health, justice, court, and nonprofit entities to facilitate communication and collaboration, fully leveraging the ACA for justice populations. Several leading-edge interventions were developed within the Cook County Jail and the probation department.
The Cook County Jail, the largest single-site jail in the country, provided an ideal opportunity to enroll a large number of newly eligible people. The Cook County Sheriff’s Department, Cook County Health and Hospitals System, and TASC worked with the Illinois Department of Healthcare and Family Services and the Illinois Department of Human Services to develop a jail-specific process to help individuals apply for CountyCare during the waiver period. Once the waiver ended on July 1, 2014, CountyCare became an Illinois Medicaid Health Plan; it continues to provide Medicaid application assistance at the jail and through the CountyCare phone line.
The Office of the Sheriff of Cook County created a system at jail intake in which a large number of low-income, single adults could apply. Each application takes about ten minutes to complete and uses identity documentation from the arrest/booking process to verify identity. At the end of the waiver period, over 130,000 CountyCare applications were initiated, and over 100,000 Cook County residents were approved for CountyCare. Of these, more than 17,000 applications were initiated at Cook County Jail. On average, the applications submitted from the jail enrollment have a very high approval rate, higher than the approval rate for applications submitted outside of Cook County Jail.
Adult Probation and the Courts
The Cook County Adult Probation Department began testing the application process with its probationers in 2013 and is implementing a plan to provide information about coverage opportunities, and how to apply, to all 40,000 people under supervision. The process includes working with “application assisters” with funding through the new Illinois Exchange and CountyCare. Finally, a “health-care-reform-ready” court model, the Access to Community Treatment Court, is being implemented in the Circuit Court of Cook County to test how the new coverage and services work with court supervision processes. Lessons learned through this process will provide the basis for integrating new coverage and services across all felony courtrooms, leading to universal access to necessary substance abuse and mental health services within the courts.
Enrollment should continue as a system function until most people entering the jail and probation are found to be covered at intake. Thereafter, the justice system should focus on assisting people under supervision with maintaining their coverage, which in Illinois requires annual reapplication or redetermination of eligibility.
Planning in Winnebago County, Illinois
ACA implementation has also come to the attention of other communities across Illinois. Rockford is the county seat of Winnebago County and a midsized city with about 150,000 residents. Winnebago County has a robust court system, and in 2013 Chief Judge Joseph McGraw of the 17th Circuit (north central Illinois) convened a planning process to anticipate the benefits of the ACA for his jurisdiction. Through several working groups, justice and health partners work together to determine how best to align health insurance enrollment and broad linkage to care with justice system processes, including the Winnebago County Jail, probation, and pretrial services. The partners are implementing application processes within the courts, probation, and the county jail and are working with community providers on expanding capacity for medical, mental health, and substance abuse treatment.
Continuity of Care after Jail and Prison
For many offenders, incarceration offers the first opportunity that they have had to confront and treat serious, chronic health problems like HIV/AIDS, hypertension, diabetes, etc. Best practice suggests that people leaving jail or prison with chronic health problems receive treatment as soon as possible after release. If they have serious mental illness and substance use disorders, and were taking vital medications during incarceration, it is critical that they continue their treatment in the community, along with primary care to monitor conditions and prevent further deterioration of their conditions.
When all of the benefits are in place and people are enrolled easily, justice systems can use the new resources as the basis for greater diversion from jail and prison. The new coverage and access to services can provide the foundation for diversion from prison with the requirement to participate in treatment in the community. Cook and Winnebago counties are considering approaches to continuity of care and greater diversion in their planning processes.
The promise of the Affordable Care Act for state courts, and for the communities they serve, is considerable. However, for this promise to be fulfilled, it is important that the full benefits of the ACA are anticipated and realized for the justice system. This will require an enormous amount of collaboration between behavioral health, policing, court, and reentry organizations that formerly may have had little to do with one another. Justice entities will need working partnerships with state agencies overseeing Medicaid, insurance, health care, and human services to maximize enrollment efforts and increase linkages to community treatment.
We believe the promise will be realized through reduced incarceration costs in criminal justice and reduced health-care costs for the formerly uninsured. The Cook County Medicaid waiver has already demonstrated impressive financial savings in their first year of operation. However, even more than economic benefits, full realization of the Affordable Care Act stands to make a substantial impact on the very infrastructure and quality of life in our communities.
Bainbridge, A. A. (2012). The Affordable Care Act and Criminal Justice: Intersections and Implications. Washington, DC: Bureau of Justice, U.S. Department of Justice.
Cook County Health and Hospitals Systems Board (2014). Minutes, Item 6, CEO Report, January 24.
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Nixon, J. P. (2013). “Health Scare: Obamacare Is Down but Not Out,” Commonweal, December 9.
Raju, R. (2013). “Early Obamacare Rollout a Boon to Cook County,” Crain’s Chicago Business, November 30.