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Uncovered: Emmer bill addresses mental health coverage for those jailed, awaiting trial

Emmer’s Due Process Continuity of Care Act is intended to fill a gap in coverage which exists for people who have been charged but not convicted of a crime and are being held in jail. 

Sixth District Rep. Tom Emmer introduced the Due Process Continuity of Care Act earlier this month.
Sixth District Rep. Tom Emmer introduced the Due Process Continuity of Care Act earlier this month.
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Living in poverty is enough of a struggle. Compound it with living with a mental illness and the struggle exacerbates. Add being arrested and having to spend time in jail and losing access to Medicaid and the results are oftentimes disastrous.  

Under current federal rules, Medicaid ceases to cover people once they begin their stay in jail. Many of these people are awaiting trial, and have not been convicted of the crime for which they’ve been charged.

Sixth District Rep. Tom Emmer (R), who has long been an advocate for those dealing with mental health issues, took exception with this policy and introduced the Due Process Continuity of Care Act earlier this month. The bill would ensure that pre-trial incarcerated individuals can continue to receive health services normally covered under Medicaid. 

“Our jails are literally becoming treatment centers,” Emmer said. “So it’s not only to make sure that the charged individual continues to receive care and treatment for his or her issues, it’s also to help our jails. They are expected to provide this care and they either can do it, which is an additional cost to them, or they can’t, which is a cost not only to the patient but to the society as a whole.”

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Mental health issues have become an increasing concern in recent years, with many Minnesota jails struggling to provide care for people clearly struggling with mental illness and substance abuse disorder. Mental health advocates in Minnesota and sheriffs alike hope this bill could make substantial change in their ability to care for pre-trial detainees.

The current state of mental health care in Minnesota jails

Minnesota’s judicial branch released a report in February of 2020, the Community Competency Restoration Task Force Interim Legislative Report, which shared findings about mental illness in state jails. The report found that since 2013, the number of people in Department of Human Services (DHS) facilities who are incompetent to stand trial because of mental illness has more than doubled, but treatment capacity has remained the same. 

“Mental illness is not a crime. The mentally ill are overrepresented in our jails, and it’s just not a healthy place,” said Dakota County Sheriff Tim Leslie in a 2021 policy panel discussion on mental health care in Minnesota jails.

“Our jails were not built for today’s suffering from mental illness, addiction and co-occurring substance abuse disorders. All those things we’re seeing … it’s gotten worse,” Leslie said.

The issue Emmer highlights with his new bill is that Medicaid coverage — which is generally used by people in low income brackets — does not cover anyone in jail, whether they are awaiting trial or being held for other reasons. For those who regularly rely on Medicaid, any health care they received or any prescriptions they had outside of jail does not carry over to their time behind bars. Currently, Minnesota jails that do treat people for their mental illnesses often need to do so using state funds if patients do not have health care coverage.

Sue Abderholden
NAMI
Sue Abderholden
“In some ways, the bigger issue is when they leave,” said Sue Abderholden, executive director of the National Alliance on Mental Illness Minnesota. “They suspend someone’s Medicaid when they go into jail, but it still takes a while to get it back when they leave the jail. And also, if they got on a medication while they were in jail, they can’t actually take that prescription with them. So now they also have to find a (new) provider.”

Discharge planning varies in Minnesota as well, depending on the mental health service provider in the jail. Due to safety policies in jails, there are some restrictions on the amount of medication a person may have at one time, according to the aforementioned legislative report. Because of these restrictions, many people are discharged with a few days’ supply of medication and no easy way to continue their prescriptions.

In some cases, a person may access treatment after discharge, before being re-enrolled in Medicaid. Medicaid pays retroactively to cover these expenses, but this does not apply to pharmacies, adding to the logistical barriers in the way of people accessing medication.

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According to the legislative report, it’s fairly common for a jail to release a person only for them to be booked again within days — and in some cases hours — with new charges. These individuals are sometimes called “high utilizers” for their frequent encounters with law enforcement and apparent chronic conditions.

“What I’m hoping is that there’s actually greater collaboration with community mental health centers or certified community behavioral health centers, so that they’re actually providing the mental health care in the jail because they can already (retroactively) bill Medicaid. And then we have continuity of care when they leave,” Abderholden said.

How Emmer’s bill could help

Emmer’s Due Process Continuity of Care Act is intended to fill a gap in coverage which exists for people who have been charged but not convicted of a crime and are being held in jail. 

The bipartisan bill is a joint effort between Emmer and Reps. David Trone (D-MD), Michael Turner (R-OH) and Paul Tonko (D-NY). It would officially amend the Medicaid Inmate Exclusion Policy (MIEP), which currently denies Medicaid coverage to all incarcerated people, to allow coverage for pre-trial detainees.

The “due process” in the bill’s name refers to the MIEP’s policy of exclusion towards pre-trial detainees which conflicts with their constitutional right to due process — the policy denies Medicaid coverage to people who are presumed innocent until proven guilty. Pre-trial detainees make up about two-thirds of people currently held in local jails.

“For the more than approximately 20 percent of inmates in our nation’s jails with mental illness and substance use disorder, treatment isn’t a luxury, it’s a necessity,” Emmer said. “However, current law prohibits incarcerated individuals from accessing federal health benefits when they are behind bars — even if they haven’t been convicted of a crime and are awaiting trial. This means that patients are forced to abandon existing routines of care, often having to begin new treatment regimens with new and frequently overburdened health providers associated with the jails where they’re being held.”

Emmer said consistent care for mental health issues is in line with the Fifth and Fourteenth Amendments, and that it will make communities safer.

After its introduction to the House, the bill was referred to the House Committee on Energy and Commerce, and no actions have been taken since. 

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Emmer introduced a separate mental health-focused bill last year, the Expanding Access to Inpatient Mental Health Act, which would get rid of a 15-day cap on treatment in inpatient mental health facilities. That bill, which also has bipartisan support, has also struggled to get through Congress. Emmer called it and the Due Process Continuity of Care Act “victims of circumstance.”

“The legitimate use of the legislative function of government should be to eliminate arbitrary barriers that get in the way of health care,” Emmer said. “Mental health is an issue that transcends politics … this is something that we would expect we’re not going to have as much difficulty moving.”

But Emmer said this bill, just like many others in the current Congress, is struggling to move forward because Congress is generally struggling to get any legislation passed. He said the pandemic has gotten in the way of many of his colleagues getting together. Still, though, he seemed optimistic about this bill’s chances.

“I have the same hope to expand mental health care access with this bill. And when we get back to literally working again, working together, I see a good future,” Emmer said.