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Building Bridges - An Act to Reduce Recidivism by Improving Access to Benefits for Individuals with Psychiatric Disabilities upon Release from Incarceration, Bazelon Center, 2002

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Building Bridges
An Act to Reduce Recidivism
by Improving Access to Benefits
for Individuals with Psychiatric Disabilities
upon Release from Incarceration

MODEL LAW AND COMMENTARY

 Copyright Washington DC Judge David L Bazelon Center for Mental Health
Law, March 2002. Reproduction of any significant portion for commercial purposes is prohibited, but we encourage the copying and dissemination of all or part
of this document for the purpose of education or policy reform.
The Bazelon Center for Mental Health Law is the leading national legal-advocacy
organization representing people with mental disabilities. Founded in 1972, the
Washington D.C.-based nonprofit uses litigation, policy analysis, coalitionbuilding and technical support for local advocates to advance and protect the
rights of adults and children with mental illnesses or developmental disabilities
and to promote their full participation in community life. Funding of this work
comes primarily from grants by private foundations and gifts by generous individuals. For the development and distribution of this model law, we especially appreciate tbe support of the Open Society Insttitute’s Center on Crime, Commmunities
and Culture, the John D. and Catherine T. MacArthur Foundation and the
Evenor Armington Fund.
BAZELON CENTER FOR MENTAL HEALTH LAW
1101 Fifteenth Street N.W., Suite 1212
Washington D.C. 20005-5002
(202) 467-5730 (voice); (202) 467-4232 (TDD); (202) 223-0409 (fax)
info@bazelon.org; www.bazelon.org

Building Bridges
An Act to Reduce Recidivism by Improving Access to
Benefits for Individuals with Psychiatric Disabilities
upon Release from Incarceration
CONTENTS
Introduction........................................................................................................ 1
How to Use the Model Law ......................................................................... 2
Section-by-Section Summary............................................................................. 5
Article I: Findings and Purpose ........................................................................ 7
A. Findings .................................................................................................. 7
B. Purpose.................................................................................................... 8
Article II: Definitions ....................................................................................... 11
Article III: Suspension of Eligibility Upon Incarceration and
Restoration Upon Release .......................................................................... 15
A. State Policy ........................................................................................... 15
B. Medicaid ............................................................................................... 15
C. Federal Disability Benefits .................................................................... 16
Article IV: Applications for Inmates with Psychiatric Disabilities
Terminated from or Not Enrolled in Federal Benefit Programs ................. 18
A. State Policy ........................................................................................... 18
B. Medicaid ............................................................................................... 18
C. Disability Benefits................................................................................. 20
Article V: Facilitating Applications for Benefits ............................................. 21
A. State Policy ........................................................................................... 21
B. Negotiating Pre-Release Agreements with Social Security
Administration ..................................................................................... 21
C. Application Assistance......................................................................... 22
Article VI: Bridge Programs ............................................................................. 24
A. State Policy ........................................................................................... 24
B. Temporary Medicaid Card .................................................................... 24
C. Temporary Income Support .................................................................. 26
Article VII: Photo Identification ..................................................................... 28
Article VIII: Access to Services ....................................................................... 29
A. State Policy ........................................................................................... 29
B. Mental Health Services ........................................................................ 29
C. Case Management Services .................................................................. 30
Article IX: State Medicaid Plan ....................................................................... 31
Article X: Funding ............................................................................................ 32
Article XI: Effective Dates ............................................................................... 34

PAGE INTENTIONALLY BLANK

BUILDING BRIDGES
A Model Law
Introduction
The number of people with psychiatric disabilities in jails and prisons is on the
rise. By the end of 2000, nearly one million adults with mental illnesses were in
the criminal justice system.1 Nearly two million new jail admissions were of people
with mental illnesses—a rate of 35,000 individuals a week2—mostly for nonviolent offenses.3 The number of youth with mental or emotional disorders entering
juvenile detention centers and correctional facilities is also climbing.4
Mental health advocates have been distressed for years about the disproportionate number of people with psychiatric disabilities who are arrested or held in
jail or prison. The growing numbers are also raising concern in criminal justice
circles. Police express frustration about repeated—and time-consuming—encounters with people in their communities who appear in need of mental health
treatment. Those who run jails, prisons and juvenile corrections programs worry
about people with psychiatric disabilities in their facilities. They are concerned
about these inmates themselves and about staff and other inmates, and outraged
because these inmates need help more than—or instead of—punishment.
Equally disturbing—especially for the individuals themselves and their families—is the endless cycle of recidivism that results when people with psychiatric
disabilities are released with their needs unmet. In these times of lean state budgets, lawmakers and public officials have raised serious concerns about the financial burden recidivism places on law enforcement, corrections and their community.
The Council of State Governments (CSG) recently completed two years of
study and meetings of hundreds of individuals involved in criminal justice or
mental health systems at the state and local levels.5 As the CSG found, “individuals with mental illnesses leaving prison without sufficient supplies of medication,
connections to mental health and other support services, and housing are almost
certain to decompensate, which in turn will likely result in behavior that constitutes a technical violation of release conditions or a new crime.”6 This confirmed a
1991 study finding that within 18 months of release prom prison, 64 percent of
offenders with mental illnesses were rearrested and 48 percent were hospitalized.7

BUILDING BRIDGES: A MODEL LAW

This cycle can be broken, by ensuring that inmates with psychiatric disabilities
have immediate access to the mental health services, housing and other supports
they need to avoid rearrest. Building Bridges offers an approach that states can use
to afford recently released inmates with psychiatric disabilities a successful transition to community life.
As the CSG recognized, people with psychiatric disabilities rely heavily on
federal benefit programs to pay for housing, food and other necessities and to
receive health and mental health services. Disability benefits such as Supplemental Security Income (SSI) and Social Security Disability Income (SSDI) provide a
cash benefit that is often essential to securing housing. Medicaid provides access
to health, mental health care and substance abuse services. Although these are
federal programs, states can put in place policies that will enable inmates with
psychiatric disabilities to be enrolled or reinstated in these programs, receive
needed services speedily and establish connections to the community-based
mental health system prior to release. As the CSG noted, access to these services
“is the most effective ‘precontact’ diversion from the criminal justice system for
people with mental illness.”8 Building Bridges provides a legislative template for
enacting such policies.9

How to Use the Model Law
A summary of the model law follows to provide a broad overview. In the
succeeding sections, the text of the proposed legislation is paired with a commentary with background and explanation to assist advocates and policymakers in
working to adapt the model to their state. The commentary highlights potential
issues, explains the choices we made as the language was drafted and provides
references to helpful sources and supplementary materials. We have assumed that
states will want to enact implementing rules or regulations related to benefitreinstatement legislation, and accordingly have included suggestions as to what
those rules should contain.
Several states are already working with earlier drafts of this template. We hope
many more will use Building Bridges to enact legislation that will address a critically
important part of the growing crisis of serious mental illnesses. We urge advocates
to form or join local task forces to discuss the issues and tailor the model law to fit
state or local codes and circumstances. We welcome the opportunity to work with
members of such task forces who are interested in adapting the law for enactment
in their state.

2

BAZELON CENTER FOR MENTAL HEALTH LAW

1 Calculated using the respective rates of mental illness reported in Bureau of Justice Statistics
Special Report, Mental Health Treatment of Inmates and Probationers (NCJ 174463) and year-end
jail and prison population numbers reported in Bureau of Justice Statistics Bulletin, Prisoners in
2000 (August 2001, NCJ 188207) and probationers reported in Bureau of Justice Statistics press
release of August 26, 20001.
2 Based on admission rates reported in Bureau of Justice Statistics Bulletin, Census of Jails,
1999 (August 2001, NCJ 186633) multiplied by the percentage of jail inmates with a mental
illness (16.3%) reported in Bureau of Justice Statistics Special Report, Mental Health Treatment
of Inmates and Probationers (July 1999, NCJ 174463).
3 Bureau of Justice Statistics Special Report, Mental Health Treatment of Inmates and Probationers (NCJ 174463)(citing a figure of 70 percent).
4 Cocozza, Joseph. J., & Skowyra, Kathleen R. Youth with Mental Health Disorders: Issues and
Emerging Responses (April 2000). Juvenile Justice, Volume VII(1), Washington DC: Office of
Juvenile Justice & Delinquency Prevention.
5 Council of State Governments , Criminal Justice/Mental Health Consensus Project (June
2002), New York: Council of State Governments. The report may be found at
www.consensusproject.org.
6

Id. at p. 274.

7 Feder, L., “A profile of mentally ill offenders and their adjustment in the community,”
Journal of Psychiatry and the Law, 19:79-98 (1991).
8 Council of State Governments at p. 33; Id at p. 274 (“Linkage with appropriate government
benefits in a timely manner can make the difference between success and failure in the community.”).
9 The Bazelon Center for Mental Health Law has authored several publications focusing on
individuals with serious mental illnesses in the criminal justice system and their return to the
community following incarceration. These include Finding the Key to Successful Transition from
Jail to Community (March 2001), an explanation of federal Medicaid and Disability Program
(SSI, SSDI) rules; Facts about Federal Benefits for Individuals with Serious Mental Illnesses Who
Have Been Incarcerated: Veterans Benefits, Temporary Assistance for Needy Families (TANF) and
Food Stamps (January 2002); Fact Sheets for Advocates: People with Serious Mental Illnesses in the
Criminal Justice System (May 2002); and A Better Life—A Safer Community: Helping Inmates
Access Federal Benefits (February 2003).

BUILDING BRIDGES: A MODEL LAW

4

BAZELON CENTER FOR MENTAL HEALTH LAW

An Act to Reduce Recidivism by Improving Access to Benefits
for Individuals with Psychiatric Disabilities
upon Release from Incarceration

Section-by-Section Summary
Article I
Sets out findings and explains the purposes of the bill. When released from jail
or prison, individuals with psychiatric disabilities often lack access to critical
services and supports such as health and mental health care, housing, education
and employment or income support. As a result, many become trapped in a cycle
of destitution, deterioration, rearrest and re-incarceration. Although federal
entitlement programs offer income support and health care coverage, individuals
released from incarceration seldom have timely access to these benefits. The Act
directs state and local agencies to adopt policies and procedures that enable
individuals with psychiatric disabilities, upon release, to be enrolled or reinstated
in these programs, receive needed services speedily and establish connections to
the community-based mental health system prior to release. By thus promoting
the successful community re-entry of inmates with psychiatric disabilities, the Act
will enhance public safety and offer taxpayers relief from the fiscal burdens imposed by avoidable recidivism.

Article II
Defines terms used in the bill.

Article III.
Establishes state policy to facilitate suspension, rather than termination, of
federal benefits when an individual with psychiatric disabilities is incarcerated and
to enable speedy restoration of benefits upon the individual’s release.

Article IV
Establishes state policy to assist inmates with psychiatric disabilities who are
not on eligibility rolls for federal entitlements in applying, while incarcerated, to
receive benefits upon release. Requires the Medicaid agency to set up procedures
for receiving Medicaid applications and reviewing them within 14 days and
enrolling eligible individuals on suspended status while incarcerated. Mandates
that correctional agencies identify inmates who are likely to be eligible for Medicaid and/or disability benefits, ask them if they wish to apply and ensure that
applications are filed well in advance of their release.

BUILDING BRIDGES: A MODEL LAW

Article V
Requires correctional agencies to negotiate Pre-Release Agreements with the
Social Security Administration and to arrange for competent and experienced
staff to assist inmates with psychiatric disabilities in applying for federal disability
benefits prior to their release.

Article VI
Creates a bridge program for released inmates whose applications for federal
benefits are pending. Requires the state Medicaid agency to provide a temporary
Medicaid card and cover services for up to six (6) months or until an individual is
determined ineligible. Designates a state agency to provide temporary income
support for up to six (6) months to individuals with psychiatric disabilities who
have applied for but are not receiving SSI or SSDI upon release. Provides for the
state to claim federal reimbursement of benefits provided to the individual and
prohibits the recovery of any costs from an individual who is found ineligible for
federal entitlements.

Article VII
Requires correctional agencies to arrange for the issue of a photo identification
card that does not disclose the individual’s incarceration.

Article VIII
Requires access to medically necessary mental health services for inmates both
while incarcerated and upon release. Assigns this responsibility to the state corrections agency for individuals in prison who have psychiatric disabilities, to the state
juvenile corrections agency for individuals in juvenile corrections facilities, and to
the state mental health agency for inmates in jails or juvenile detention facilities.
Mandates the provision of an adequate temporary supply of medication upon an
inmate’s release and requires the state mental health agency to provide case
management services well in advance of an inmate’s release to help arrange for
shelter, services and supports and assist with benefit applications.

Article IX
Requires the state Medicaid agency to seek federal approval of amendments to
the state Medicaid plan that may be necessary to implement this legislation.

Article X
Appropriates funding to implement the Act.

Article XI
Sets dates when the various articles will take effect.

6

BAZELON CENTER FOR MENTAL HEALTH LAW

Building Bridges
An Act to Reduce Recidivism by Improving Access to Benefits for
Individuals with Psychiatric Disabilities upon Release from
Incarceration
MODEL LAW AND COMMENTARY
Commentary on Article I

Article I: Findings and
Purpose

I. A. Findings.
The Findings section includes general statements about
the importance of access to income and health care benefits
for individuals with psychiatric disabilities who are returning
to their communities following incarceration. It may be
helpful to include supporting data either in the Findings
section of the legislation or in fact sheets distributed to
lawmakers.
National studies show that many incarcerated individuals have psychiatric disabilities. For example, researchers
have found that:
◆ More than 16% of jail inmates have a mental illness.1
◆ Annually, nearly two million people with mental illnesses
are jailed-35,000 new admissions a week.2
◆ At the end of 2000, nearly one million individuals with
mental illnesses were incarcerated or on probation.3
◆ Youth in the juvenile justice system have substantially
higher rates of mental health disorders than youth in the
general population.4
◆ One in five youth in the juvenile justice system has a
serious mental health problem.5
More than 600,000 individuals will be released from
prisons this year, at least 1,600 per day; many more will be
released from jails and juvenile facilities.6
Every former inmate faces obstacles in finding work, reestablishing family relationships, developing a social
network and avoiding further criminal activity, but the
challenges faced by individuals with psychiatric disabilitieswho require specialized services and supports -can be even
greater and more complex. In addition to grappling with

BUILDING BRIDGES: A MODEL LAW

A.

Findings
The Legislature finds and declares

that:
1. When released from
incarceration, adults and juveniles with
psychiatric disabilities often lack access
to mental health services, stable
housing, employment or other income
and education. Obtaining food and
other necessities can be a problem.
Without basic supports, many needlessly
become trapped in a cycle of
destitution, deterioration, rearrest and
re-incarceration.
2. Upon release, individuals with
psychiatric disabilities need basic
services and supports to enable them to
transition successfully to community
life. Existing federal programs, such as
Medicaid, Supplemental Security

7

Article I: Findings and Purpose

Income (SSI) and Social Security
Disability Insurance (SSDI), provide
health care coverage and income support
to people with psychiatric disabilities.
Often, however, individuals released from
incarceration are not enrolled in these
programs or their enrollment is
unreasonably delayed.
3. Legislative action is required to
aid individuals with psychiatric
disabilities in maintaining their eligibility
for federal benefit programs during
incarceration and, upon release, to enable
them to access federal benefit programs
for which they are eligible and temporary
health care coverage and income when
federal benefits are not immediately
available.
4. Legislative action is also
required to ensure that, upon release,
individuals with psychiatric disabilities
are connected to the community-based
mental health system.
5. Providing access to mental
health care and income support for
individuals with psychiatric disabilities
upon their release will promote successful
community re-entry, enhance public
safety and provide relief to taxpayers
from fiscal burdens imposed by avoidable
recidivism.
B.

Purpose

The purpose of this Act is to
facilitate the community reintegration of
adults and juveniles with psychiatric
disabilities upon release from jail, prison,

8

their illnesses, they are more likely than other inmates to
have been homeless or unemployed when incarcerated.
For example, within the year before arrest:
◆ Twenty percent of state prisoners with mental illnesses
were homeless, compared to 9% of other inmates.
◆ Thirty percent of jail inmates with mental illnesses were
homeless, compared to 17% of other inmates.
◆ Thirty-nine percent of state prisoners with mental
illnesses were unemployed, compared with 30% of other
inmates.7
Linking individuals with necessary services and supports
as soon as possible after release is important to prevent
recidivism. Research shows that the first weeks in the
community are critical, with arrest rates highest soon after
release and declining over time.8
As the Vera Institute notes, the first month out “is not
only a period of difficulties, but also a period of opportunities to get people started on the path to employment,
abstinence from drugs, good family relations, and crimefree living.”9 We fail to take advantage of these opportunities. For example, a 1991 study reported that 64% of
offenders with mental illnesses were rearrested within 18
months of release from incarceration and 48% were
hospitalized one or more times within those first 18
months.10
State-specific statistics, if available, can be especially
helpful to convince legislators of the need for and costeffectiveness of improving released inmates’ access to
benefits and services. For example,
◆ The number of individuals incarcerated in the jurisdiction can be gathered. In many places, estimates of the
number of inmates with psychiatric disabilities are
available or discernable. The number of individuals
released annually from state prisons or local jails should
also be available.
◆ Data on the number of inmates in the state who received
Supplemental Security Income (SSI) or Medicaid at the
time of incarceration should be obtainable.11
◆ Typical wait times for Medicaid and SSI eligibility
determinations or redetermination are also available.
This sort of data can be very useful in describing and
making real the challenges faced by released inmates
with psychiatric disabilities.12

I. B. Purpose.
This model law proposes specific actions that states and
localities can take to improve access to federal Medicaid,
SSI and SSDI13 benefits for adults and juveniles with
psychiatric disabilities being released from correctional

BAZELON CENTER FOR MENTAL HEALTH LAW

Article I: Findings and Purpose
facilities. According to the landmark consensus report from
the Council of State Governments (CSG), it is important to
“streamline administrative procedures to ensure that federal
and state benefits are reinstated immediately after a person
with mental illness is released...”14 The CSG consensus
report recommends that states suspend Medicaid benefits,
as opposed to terminating them, commence discharge
planning at the time of booking and continue the process
throughout the period of detention, and develop a process
to ensure that inmates who are eligible for public benefits
receive them immediately upon their release.
Advocates and policymakers should also consider
including in legislation improved access to other federal
benefit programs that can help individuals more successfully
reintegrate into their communities, such as Temporary
Assistance to Needy Families (TANF), Food Stamps, and
Veterans Administration benefits and health coverage, as
well as state only public assistance programs such as
general assistance.15
In addition to being humane and a cost-effective,
helping individuals with psychiatric disabilities to access
these benefits upon release can be part of a more comprehensive state approach to support community integration.
Under the Supreme Court’s ruling in Olmstead v. L.C.,16
states must avail themselves of all resources that can be
used to support an individual with a disability living in the
community. Failure to assist people being released from
correctional facilities in quickly accessing federal Medicaid,
disability and other benefits to which they are legally entitled
undermines a state’s ability to achieve the community
integration mandate of the Supreme Court’s ruling in
Olmstead.
While the model law is drafted as a state law, it could be
adapted to be local legislation, for enactment by a county
or city. Localities cannot change Medicaid rules or regulate
mental health care in state facilities, but they could implement other provisions of this law. The Bazelon Center can
help advocates and policymakers interested in drafting local
legislation.

detention centers or other correctional
facilities and to enhance public safety
and provide cost-effective care by
enabling such individuals to receive
benefits speedily upon their release from
incarceration. It directs [identify state
and local agencies] to adopt policies and
procedures that enable individuals with
psychiatric disabilities, upon release
from incarceration, to:
1. participate in federal benefit
programs for which they qualify;
2. be speedily reinstated or
enrolled in federal health insurance and
income support programs for which they
are eligible;
3. obtain temporary health care
coverage and income support while
receipt of federal benefits is pending; and
4. receive mental health services,
including case management, medications
and substance abuse services.
This Act also provides funds for
costs associated with its implementation.

1. Bureau of Justice Statistics Special Report, Mental Health
Treatment of Inmates and Probationers (July 1999, NCJ 174463). This
statistic and additional data can be found in the Bazelon Center’s
Fact Sheets for Advocates: People with Serious Mental Illnesses in the
Criminal Justice System, at www.bazelon.org.
2. Based on admission rates reported in Bureau of Justice Statistics
Bulletin, Census of Jails, 1999 (August 2001, NCJ 186633) multiplied
by the percentage of jail inmates with mental illnesses (16.3%) reported
in Bureau of Justice Statistics Special Report, Mental Health Treatment
of Inmates and Probationers (July 1999, NCJ 174463).
3. Calculated using the respective rates of mental illness report in
Bureau of Justice Statistics Special Report, Mental Health Treatment of

BUILDING BRIDGES: A MODEL LAW

9

Inmates and Probationers (July 1999, NCJ 174463) and year-end jail
and prison population numbers reported in Bureau of Justice Statistics
Bulletin, Prisoners in 2000 (August 2001, NCJ 188207) and probationers reported in Bureau of Justice Statistics press release of August
26, 2001.
4. Cocozza, Joseph. J., & Skowyra, Kathleen R., Youth with Mental
Health Disorders: Issues and Emerging Responses (April 2000),
Juvenile Justice, Vol. VII(1), Washington, D.C.: Office of Juvenile
Justice and Delinquency Prevention.
5. Id.
6. Travis, Jeremy, Solomon, Amy L. & Waul, Michelle , From Prison
to Home: The Dimensions and Consequences of Prison Reentry,
Research Monograph of the Justice Policy Center of The Urban Institute
(June 2001).
7. Bureau of Justice Statistics Special Report, Mental Health
Treatment of Inmates and Probationers (July 1999, NCJ 174463).
8. See Nelson, M., Deess, P., & Allen, C. The First Month Out, PostIncarceration Experiences in New York City (New York, New York: Vera
Institute of Justice, 1999) at 2-3; Beck, A. & Shipley, B. Recidivism of
Prisoners Released in 1983, Washington, D.C.: U.S. Department of
Justice, Bureau of Justice Statistics, 1989. (These arrests resulted in
about 41% being back in jail or prison within three years.) Another
study published in 2000 by the Bureau of Justice Statistics found that
62% of individuals who leave jail or prison each year are re-arrested at
least once within three years and 41% are re-incarcerated. Beck, A. J.,
State and Federal Prisoners Returning to the Community: Findings
from the Bureau of Justice Statistics, Washington DC: United States
Department of Justice, Bureau of Justice Statistics (2000).
9. Nelson, Deess & Allen (1999) at 2.
10. Feder, L., “A profile of mentally ill offenders and their adjustment
in the community,” Journal of Psychiatry and the Law, 19:79-98
(1991). The study looked at prison inmates who had required
psychiatric hospitalization during incvarceration. See also Feder, L., “A
comparison of the community adjustment of mentally ill offenders with
those from the general population: An 18-month follow-up,” Law and
Human Behavior, vol. 19, no. 5 at 477 (1991).
11. It is especially true for SSI statistics because most jails report this
information to the Social Security Administration in order to collect a
“incentive payment” or bounty fee from SSA. See 42 U.S.C. § 402(x);
POMS SI 02310.088. “POMS” refers to the Social Security
Administration’s Program Operations Manual System, available online
at SSA’s website, http://policy.ssa.gov/poms.nsf.
12. In New York, for example, advocates determined that the
Medicaid re-application process takes two to three months or more;
more than 28,000 people were released from New York State prisons
and 100,000 were released from local jails in 2000; and an estimated
25-30% of all New York state inmates receive Medicaid at the time of
their incarceration. From these data, they could extrapolate that
because of Medicaid-eligibility terminations and delays in reinstatement, more than 40,000 individuals in the state were released from
incarceration and could not get the immediate health care services to
which they are entitled. Letter from Mental Health Association of New
York State to Antonia Novella, Commissioner, New York Department of
Health, November 21, 1901.
13. The model law does not directly address Medicare. Individuals
gain access to Medicare through enrollment in the SSDI program; they
are entitled to Medicare benefits (although not while incarcerated) after
two years of enrollment in the SSDI program. By facilitating access to
SSDI, states also facilitate access to Medicare. Unfortunately, Medicare
is of little benefit to released inmates seeking mental health services. It
does not pay for medications, a deficiency that Congress may
eventually correct, nor does it pay for intensive community services. But
it does have limited coverage for counseling and hospitalization.
14.
Council of State Governments, Criminal Justice/Mental Health
Consensus Project (June 2002), New York: Council of State Governments, available at www.consensusproject.org., Policy Statement 12(a)
at p. 99 and Policy Statement 16(b) at p. 121; id. at Policy Statement

10

21(g) at p. 168 (“[states should] Develop a process to ensure that
inmates eligible for public benefits receive them immediately upon
their release.”).
15. See Facts About Federal Benefits for Individuals with Serious
Mental Illness Who Have Been Incarcerated: Veterans Benefits,
Temporary Assistance for Needy Families (TANF) and Food Stamps
(January 2002), and A Better Life-A Safer Community: Helping Inmates
Access Federal Benefits (January 2003), available at www.bazelon.org/
issues/criminalization. The Council of State Governments report urges
that states “[e]nsure that people with mental illness are accessing the
full range of entitlements for which they are eligible.” Policy Statement
39(c) at p. 474.
16. Olmstead v. L.C., 527 U.S. 581 (1999). See Bazelon Center for
Mental Health Law, Under Court Order— What the Community
Integration Mandate Means for People with Mental Illnesses: The
Supreme Court Ruling in Olmstead v. L.C. (October 1999). Available
at www.bazelon.org/issues/communitybased/olmstead/lcruling.htm

BAZELON CENTER FOR MENTAL HEALTH LAW

Article II: Definitions

Commentary on Article II
Definitions should, when appropriate, reference and be
consistent with existing definitions in state law or regulation.
Specific definitions in the model law make reference to
existing state definitions.

Article II: Definitions
1.
“Case management” means [see
state law and policy]

Case management: This definition should at a minimum
include helping individuals to access programs, services
and supports (including housing, education, employment,
job training, social services, legal services and health care),
as well as individual client advocacy to establish and
maintain eligibility for benefits and other programs and to
uphold clients’ rights.

2.
“Correctional agency” means an
agency of state or local government
responsible for overseeing the operation
of one or more correctional institutions,
including juvenile justice facilities.

Individuals with psychiatric disabilities: This definition
identifies the population to which the law will apply. As
written, the law targets adults with serious mental illnesses
and juveniles with emotional or behavioral disturbances, as
defined in state law or policy. The target population can be
expanded or limited by adopting an alternative definition. In
defining the target population, drafters may want to consider
an approach taken by the federal Substance Abuse and
Mental Health Services Administration (SAMHSA), which
defines an individual with a psychiatric disability as someone with an illness listed in the current Diagnostic and
Statistical Manual of Mental Disorders (DSM)1 that substantially interferes with or limits one or more major life activities.

3.
“Correctional institution” means a
jail, prison, juvenile corrections facility,
juvenile detention facility or other
detention facility operated by a state or
local correctional agency that qualifies as
a public institution under 42 Code of
Federal Regulations (C.F.R.) § 435.1009.

Incarcerated and Inmates: Federal law prohibits
Medicaid payments for “care or services” for any individual
who is an “inmate” in a correctional facility.2 An individual
is an inmate of a correctional facility if held there involuntarily. Status offenders and adults or juveniles awaiting
transfer, trial or sentencing are all “inmates” on whom
Medicaid dollars may not be spent. An individual is not
“incarcerated” or an “inmate” if on probation, parole or
home monitoring3 and, accordingly, may receive care and
services paid by Medicaid.4
Likely to be eligible: The model law provides that
previous enrollment within five years of incarceration makes
an individual “likely to be eligible” upon release. Otherwise,
the model law does not detail how the state will determine if
inmates are “likely to meet eligibility criteria for the Medicaid, SSI or SSDI programs upon their release from incarceration.” Advocates and policymakers may wish to include
additional guidance in the law or a specific direction that
regulations be developed to give additional guidance. Such
guidance might focus on whether the individual has a
mental illness diagnosis, meets a certain standard of

BUILDING BRIDGES: A MODEL LAW

4.
“Enrolled in the SSI program”
means (a) currently eligible, as
determined by the Social Security
Administration pursuant to SSI program
rules and (b) on eligibility rolls, even if
cash benefits are currently suspended.
5.
“Enrolled in the SSDI program”
means (a) currently eligible, as
determined by the Social Security
Administration pursuant to SSDI program
rules and (b) on eligibility rolls, even if
cash benefits are currently suspended.
6.
“Federal benefit programs” refers to
Medicaid, Supplemental Security Income
(SSI) and Social Security Disability
Insurance (SSDI).
7.
“Incarcerated” means confined in a
correctional institution.

11

Article II: Definitions

8.
“Individuals with psychiatric
disabilities” includes (a) adults with
serious mental illnesses, as defined in
[state law or policy], and (b) juveniles
with emotional/behavioral disturbances
or emotional disorders, as defined in
[state law or policy].
9.
“Inmates” refers to incarcerated
individuals with psychiatric disabilities.
10. “Likely to be eligible” individuals
means individuals with psychiatric
disabilities (a) whose enrollment in the
Medicaid, SSI or SSDI program was
terminated during their incarceration;
(b) who were enrolled in the Medicaid,
SSI or SSDI program at any time during
the five years prior to their
incarceration; or (c) who were not
previously enrolled, but who are likely to
meet eligibility criteria for the Medicaid,
SSI, or SSDI programs upon their release
from incarceration.
11. “Medicaid eligibility category”
refers to all existing eligibility categories
established in the state Medicaid plan
12. “Medicaid eligibility through SSI”
means that an individual is eligible to
participate in the Medicaid program by
virtue of enrollment in the SSI program.
13. “Mental health services” means
[see state law and policy]. It includes
substance abuse services.
14. “Parent” means a parent, guardian
or individual acting in the role of parent
(e.g., grandparent raising a child).

12

disability and is low income.
Under the model law, “likely to be eligible” individuals
receive help in applying for federal benefits upon release
and are eligible for bridge programs (Article VI). In fleshing
out the definition, policymakers should keep in mind that
the state has an interest in reducing its overall expenses and
those of localities and in shifting costs to the federal
government.5 When individuals are released without
benefits and deteriorate, they end up in emergency rooms,
psychiatric hospitals and jails, where care is expensive and
is paid for primarily by state and local dollars. Some less
expensive community care may be available, also without
federal cost-sharing. It makes fiscal sense to ensure that
released inmates are enrolled in federal benefit programs or
in bridge programs that enable them to receive less expensive community services, whose costs can be recouped with
federal funds.
Medicaid provides access to health and mental health
treatment, including services that help maintain housing or
a job or continue their education. Medicaid also funds case
managers, who will assist the person in addressing problems of daily living. Medicaid is a means-tested program
and has other specific eligibility criteria. Released inmates
with psychiatric disabilities will usually qualify for Medicaid
as a consequence of enrollment in the SSI program or
because they are low income and care for a child.
In all states, the federal government pays at least
50% of the cost of the Medicaid program. The actual share
of costs paid by the federal government depends on the
economic well-being of the state’s population: the poorer
the state, the higher the proportion of costs paid by the
federal government. In the poorest states, the federal
government pays over 75% of the cost of Medicaid services.6
Medicaid eligibility category:: This definition is written to
encompass all of the eligibility categories in the state’s
Medicaid plan, both those mandated by federal law and
those that are optional. Using this language ensures the
inclusion of all individuals who may be eligible for Medicaid. Some of the relevant optional eligibility categories are:
◆ Women and children in families whose incomes are over
the federally mandated minimum of 100% of the federal
poverty level (states have flexibility to set income limits
up to 185% of federal poverty level).7
◆ Medically needy individuals, defined as those who do
not meet the financial eligibility criteria of Medicaid but
who have high health care expenditures and who can
be eligible once they spend down to Medicaid-eligibility

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Article II: Definitions

◆

◆
◆

◆

◆

◆

levels (calculated by deducting their health care
expenses from their incomes).8
Individuals with disabilities who receive SSI state
supplements but are not eligible for SSI cash benefits
because their income is over the federal limit.9
Individuals ages 65 and over and people with disabilities with incomes up to 100% of poverty.10
Those who will be working upon release but who also
have a disability (in some cases they must buy into the
program).11
Young adults who were in foster care on their 18th
birthday but have since aged out (they can be covered
under Medicaid up to age 19, 20 or 21).12
Individuals who qualify for Medicaid through a state’s
Section 1115 waiver program to cover uninsured
individuals.13
Juveniles who are eligible for coverage because they
have coverage under the State Children’s Health
Insurance (S-CHIP) program, which in many states
provides them access to Medicaid. (Note that in some
states, S-CHIP youngsters will only be eligible for a
limited private insurance health plan.)14

Mental health services: Under the model law, “mental
health services” is defined to include substance abuse
services. An alternative would be to use throughout the law
the term “behavioral health” services, defined to include
both mental health and substance abuse services. Because
of the high incidence of substance abuse among individuals
with psychiatric disabilities who end up incarcerated, it is
essential that the model law provide for access to substance
abuse services.
Pre-Release Agreement: A pre-release agreement is an
agreement between the Social Security Administration (SSA)
and a correctional agency that details how SSA and the
agency will work together to access SSA’s “pre-release
procedure” on behalf of incarcerated individuals. SSA’s prerelease procedure is aimed at “assuring eligible individuals
timely SSI payments when they reenter the community.”15
This procedure allows SSA to (a) process SSI applications
from incarcerated individuals months before their anticipated release and (b) make a prospective determination of
potential eligibility and payment amount, based on anticipated circumstances. Through this approach, benefits are
payable as soon as feasible after—sometimes even on the
day of—release.
A pre-release agreement can apply to one correctional
facility, a group of facilities or all facilities in a jurisdiction.
Pre-release agreements may also be used to improve

BUILDING BRIDGES: A MODEL LAW

15. “Pre-Release Agreement” means a
formal agreement with the Social
Security Administration (SSA) under
which a correctional agency and SSA will
work collaboratively to ensure that
applications for SSI and SSDI by inmates
are speedily handled by SSA.
16. “SSI” means the Supplemental
Security Income program, a federal
income support program for people with
disabilities and low incomes, provided
under Title XVI of the Social Security
Act.
17. “SSDI” means the Social Security
Disability Income program, a federal
income support program, provided under
Title II of the Social Security Act, for
individuals with disabilities who have
worked and paid Social Security taxes.
18. “Suspend” Medicaid coverage
means to place an individual’s Medicaid
eligibility in an inactive status such that
(a) the individual remains eligible for
Medicaid and continues on the state rolls
but (b) Medicaid benefits are not payable
for services furnished (e.g., during
incarceration).
19. “Suspend” SSI or SSDI eligibility
means to stop cash payments due to
incarceration.

13

access to SSDI and Food Stamps.
Note: SSA’s pre-release procedure can be utilized
without a pre-release agreement.16
For a more detailed description of pre-release agreements, see the commentary for Article V.
SSI: The federal Supplemental Security Income program
provides income support to low-income individuals who are
aged, blind or disabled. Individuals who qualify for SSI
benefits are generally eligible automatically for Medicaid.17
To be eligible for SSI on the basis of disability, individuals
must have a diagnosed disorder, such as mental illness.
Adults must be so disabled that they cannot engage in
“substantial gainful activity” by working in any job that is
available in the national economy. Juveniles must have
“marked and severe” functional limitations when compared
with other children of the same age.

§1396b(i)(20), §1396d(v), §1396a(u)(1).
12. 42 U.S.C. §1396a(a)(10)(A)(ii); §1396d(v) and 42 C.F.R. §
435.222(b)(1).
13. Section 1115 of the Social Security Act, 42 U.S.C. § 1315(a).
14. Title XXI of the Social Security Act, added by the Balanced Budget
Act of 1997, Pub. L. No. 105-33, Subtitle J, State Children’s Health
Insurance Program, and 42 C.F.R. § 457.
15. POMS SI 00520.900 A. For an example of a pre-release
agreement, see POMS SI 00520.930, exhibit 2.
16. POMS SI 00520.910 (“a formal agreement is not a prerequisite
for utilizing prerelease [procedures]”).
17. In 32 states, SSI eligibility results in automatic Medicaid
coverage; in seven other states, SSI recipients are automatically eligible
for Medicaid but must submit a separate application. In the 11 states
that use different rules (CT, HA, IL, IN, MN, MS, NH, ND, OH, OK and
VA), people who receive SSI nearly always qualify for Medicaid,
although they must go through a separate application process.

SSDI: Social Security Disability Insurance pays monthly
benefits, based on past earnings, to individuals with
disabilities who have been employed. Most people with
serious mental disorders are on SSI (either alone or in
combination with a small SSDI benefit) because they have a
limited work history due to the severity of their illness and the
young age at which they became disabled. Recipients
become automatically eligible for Medicare health and
mental health care benefits two years after they qualify for
SSDI.
1. The Diagnostic and Statistical Manual of Mental Disorders (DSM)
published by the American Psychiatric Association sets the criteria for
diagnosis of a psychiatric condition.
2. 42 U.S. Code § 1396d(a)(27)(A).
3. POMS SI 00520.009 (“Individuals participating in alternatives to
incarceration outside of formal institutional settings for whom the
penal authorities are not providing food and shelter (either directly or
indirectly) are not residents of a public penal institution.”). “POMS”
refers to the Social Security Administration’s Program Operations
Manual System, available online at SSA’s website, http://
policy.ssa.gov/poms.nsf.
4. See 42 C.F.R. § 435.1009.
5. See The Biennial Report of the Texas Council on Offenders with
Mental Impairments (2003) at 26-28 (describes a Social Security
project between SSA and TCOMI that has as one of its goals
decreasing local and/or state financial burden following an
individual’s release from jail). TCOMI’s programs are being studied by
Sam Houston State University.
6. POMS SI 01715.001 B (“The Federal government pays 50 percent
of Medicaid administrative costs and between 50 and 83 percent of
program costs following a statutory cost-sharing formula.”).
7. 42 U.S.C. §1396a(10)(E)(iii).
8. 42 U.S.C. §1396a(a)(10)(C), 42 C.F.R. § 435.300, § 435.800,
§436.800.
9. 42 U.S.C. §1396a(a)(10)(A)(ii)(IXI); 42 C.F.R. § 435.232.
10. 42 U.S.C. § 1396a(a)(10)(A)(ii)(XI).
11. 42 U.S.C. §1396a(a)(10)(A)(ii)(XV, XIII and XVI), §1360(g),

14

BAZELON CENTER FOR MENTAL HEALTH LAW

Article III: Suspension of Eligibility Upon Incarceration and Restoration Upon Release

Commentary on Article III
The model law sets up a three-pronged approach for
inmates who were enrolled in federal benefit programs at
the time they were first incarcerated:
◆ inmates retain benefit eligibility status as long as
permitted under federal law;
◆ restoration of suspended benefits is immediate upon
release; and
◆ inmates receive assistance with applications for restoration of benefits, as set forth in Article V.
Article IV applies when federal benefits have been
terminated, or when a likely-to-be-eligible individual had no
previous enrollment in SSI, SSDI or Medicaid.

III. B. 1. Suspension of Medicaid Benefits
Federal Medicaid benefits are essential to most jail
inmates with psychiatric disabilities who leave corrections
facilities through discharge, parole or conditional release/
probation. If they are to access community treatment
services, these individuals need speedy access to Medicaid
mental health coverage. The Vera Institute’s study of postincarceration experiences in New York City found that the
lack of Medicaid was the biggest obstacle to accessing
treatment (psychiatric treatment, addiction treatment or
medical treatment) following release from incarceration.1
Federal law prohibits Medicaid payments for “care or
services” for any individual who is an inmate in a correctional facility.2 However, state officials are permitted “to use
administrative measures that include temporarily suspending
an eligible individual from payment status during the period
of incarceration to help ensure that no Medicaid claims are
filed.”3 States are not required to terminate an
individual’s Medicaid eligibility upon incarceration.4 In fact, the states have no authority under Medicaid
law to drop inmates from the Medicaid eligibility rolls upon
incarceration.5
Nonetheless, in most if not all states, when a Medicaid
recipient is incarcerated, the Medicaid agency is notified of
the incarceration and automatically terminates the
individual’s Medicaid eligibility.6 The individual is required
to re-apply for Medicaid when released and must await an
eligibility determination before getting Medicaid benefits and
renewed access to treatment services. The Medicaid reapplication process is often cumbersome and lengthy. The
Council of State Governments Consensus Project urges
states to “[s]uspend (as opposed to terminate) Medicaid
benefits upon the detainee’s admission to the facility to

BUILDING BRIDGES: A MODEL LAW

Article III: Suspension of
Eligibility Upon Incarceration
and Restoration Upon Release
A.

State Policy

It shall be the policy of [State] to
facilitate, to the full extent permitted by
federal law:
1. the suspension rather than
termination of federal benefits when an
individual with psychiatric disabilities is
incarcerated, and
2. speedy restoration of benefits
upon the individual’s release.
B.

Medicaid

The [Medicaid agency] shall adopt
regulations or policies ensuring that:
1. When an individual with
psychiatric disabilities enrolled in the
Medicaid program is incarcerated,
a. the individual’s eligibility
for Medicaid will be suspended rather
than terminated, and will remain
suspended rather than terminated for as
long as is permitted by federal law; and
b. the individual shall not be
terminated from the Medicaid program
unless [Medicaid agency] determines that
the individual (i) no longer meets the
Medicaid eligibility criteria under which
they had qualified and (ii) is not eligible
for Medicaid under any other Medicaid
eligibility category.

15

Article III: Suspension of Eligibility Upon Incarceration and Restoration Upon Release

2. When an individual whose
Medicaid eligibility is suspended is
released from incarceration, the
individual’s Medicaid eligibility will be
fully restored on the day of release unless
and until the [Medicaid agency]
determines that the individual is no
longer eligible for Medicaid.
C.

Federal Disability Benefits

[Correctional agencies] shall seek
to ensure the speedy restoration of
benefits of inmates with psychiatric
disabilities whose eligibility for SSI or
SSDI has been suspended during
incarceration. These agencies shall seek
to ensure that cash benefits under SSI
and SSDI are reinstated in the month of
release. To this end, these agencies shall:
1. identify inmates with
psychiatric disabilities whose SSI or
SSDI was suspended during
incarceration, and ask them if they wish
to receive benefits when released, and
2. for those who wish to receive
benefits, ensure that (i) applications for
reinstatement of SSI or SSDI upon
release are filed on their behalf as soon
as possible following suspension, and (ii)
all applicants for reinstatement leave the
correctional institution with a copy of
the application.

16

ensure swift restoration of the health coverage upon the
detainee’s release.”7

III. B. 2. Reinstatement of Medicaid
When Medicaid benefits have been suspended, they
must be fully restored immediately upon release. As the
Secretary of HHS recently made clear, “a State must ensure
that the incarcerated individual is returned to the rolls
immediately upon release, unless the State has determined
that the individual is no longer eligible for some other
reason.”8 This allows released individuals to go directly to a
Medicaid provider and access services.9
When Medicaid Eligibility Is Dependent on SSI
Eligibility. Many inmates with psychiatric disabilities are
eligible for SSI and through that eligibility qualify for
Medicaid.10 When an inmate whose Medicaid eligibility is
through SSI is terminated from SSI, he or she will lose
Medicaid eligibility unless qualified for Medicaid under
another eligibility category.11 When an individual’s Medicaid eligibility is wholly dependent on SSI, SSI eligibility must
be restored first before Medicaid eligibility can be restored.
SSA’s pre-release procedure can greatly speed the
individual’s re-establishment of SSI eligibility. (See Commentary on Article V.B. regarding pre-release agreements and
the importance of close work between correctional agencies
and the Social Security Administration).

III. C. Applications to Restore Federal
Disability Benefits
This section sets up processes by which correctional
agencies are to ensure the speedy restoration of SSI and
SSDI cash benefits upon release for individuals with psychiatric disabilities whose benefits were suspended during
incarceration.
SSI cash payments are suspended when an individual is
incarcerated for a full calendar month.12 The inmate
remains on the eligibility rolls, and SSA presumes that the
inmate, while incarcerated, remains disabled.13 This
situation continues unless and until the inmate has experienced consecutively 12 full calendar months of incarceration. If the inmate is incarcerated consecutively for 12 full
calendar months, SSI eligibility is terminated.14 An individual
whose eligibility has been terminated must file a completely
new application for SSI, and show that he or she is still
disabled under the eligibility standards (see Article IV).
SSDI cash payments are also suspended when an
individual has been convicted and incarcerated
for longer than 30 days.15 However, SSDI eligibility is never

BAZELON CENTER FOR MENTAL HEALTH LAW

terminated for incarceration alone, no matter how long the
incarceration.16 Cash payments can resume the month after
the month of release.17 SSA must verify that the person is no
longer in a correctional facility.
By taking advantage of SSA’s pre-release procedure,
states can assure speedy restoration of SSI and SSDI benefits
upon an inmate’s release. (See Commentary to Article V.B.)
1. Nelson, M., Deess, P., and Allen, C. The First Month Out, PostIncarceration Experiences in New York City. New York, New York: Vera
Institute of Justice, 1999 at p. 21. (“Some people told us they worried
about running out of medication, and a few reported skipping doses to
make their medication last longer, hopefully until they were covered. . .
. Delays in getting Medicaid meant that many people who were
required to attend a treatment program could not enroll immediately,
which put them at risk of relapsing and of violating parole.”).
2. The Medicaid statute precludes payment of federal matching
funds to pay for services for an individual wo is “an inmate of a public
institution (except as a patient in a medical institution).” 42 U.S. C. §
1396d(a)(27)(A); 42 C.F.R. § 435.1008. A correctional facility is a
“public institution” for purposes of this prohibition. 42 C.F.R. § 10009.
3. Letter from Donna E. Shalala, Secretary of Health and Human
Services to Honorable Charles E. Rangel, House of Representatives
(April 5, 2000); see also letter from Sue Kelley, Associate Regional
Administrator, Division of Medicaid and State Operations to Kathryn
Kumerker, Director, Office of Medicaid Management, New York State
(September 20, 2000).
4. Id. Memorandum from the Director, Disabled and Elderly Health
Programs Groups, Center for Medicare and Medicaid Operations, to
All Associate Regional Administrative Divisions for Medicaid and State
Operations, “Clarification of Medicaid Coverage Policy for Inmates of
a Public Institution,” Health Care Financing Administration,
Department of Health and Human Services (December 12, 1997).
5. Moreover, a state may not terminate anyone from Medicaid
without first determining whether the individual qualifies under other
Medicaid-eligibility categories. See 42 C.F.R. § 435.930(b) (states must
“continue to furnish Medicaid regularly to all eligible individuals until
they are found to be ineligible.”).
6. Council of State Governments, Criminal Justice/Mental Health
Consensus Project (June 2002), New York: Council of State Governments, at p. 109, n. 32 (citing a report of a survey of states in which
all but one reported a policy of terminating enrollment in Medicaid
upon a person’s incarceration: Collie Brown, “Jailing the Mentally Ill,”
State Government News, April 2001, p. 28). The report may be found
at www.consensusproject.org. See also Lackey, Cindy, Final Results of
State Medicaid Agencies Survey in Memorandum to Fred Osher,
Director of Center for Behavioral Health, Justice and Public Safety
(October 16, 2000). Many management information systems are set
up so that termination is the only option to prevent federal financial
participation for incarcerated individuals.
7. Council of State Governments, Policy Statement 13(f) at p.108.
As the report notes, “Suspending, instead of terminating, the detainee’s
enrollment in Medicaid enables staff to effect the reinstatement of the
benefits immediately upon release, guaranteeing the individual access
to the treatment and medications likely to keep him or her from
coming into contact with the criminal justice system again.” Id.
8. Letter from Donna E. Shalala, Secretary of Health and Human
Services to Honorable Charles E. Rangel, House of Representatives
(April 5, 2000); letter from Sue Kelley, Associate Regional Administrator, Division of Medicaid and State Operations to Kathryn Kumerker,
Director, Office of Medicaid Management, New York State (September
20, 2000); see 42 C.F.R. § 435.930 (a) (states must “furnish Medicaid
promptly to recipients without any delay caused by the agency’s
administrative procedures”).

BUILDING BRIDGES: A MODEL LAW

9. Letter from Tommy Thompson, Secretary, U.S. Department of
Health and Human Services, to Congressman Charles Rangel
(October 1, 2001); letter from Sue Kelley, Associate Regional Administrator, Division of Medicaid and State Operations to Kathryn Kumerker,
Director, Office of Medicaid Management, New York State (September
20, 2000).
10. In 32 states, SSI eligibility results in automatic Medicaid
coverage; in seven other states, SSI recipients are automatically eligible
for Medicaid but must submit a separate application. In the 11 states
that use different rules (CT, HA, IL, IN, MN, MS, NH, ND, OH, OK and
VA), people who receive SSI nearly always qualify for Medicaid,
although they must go through a separate application process.
11. Before ending someone’s Medicaid eligibility, states must
determine whether the individual qualifies for Medicaid under any of
the state’s eligibility categories. See 42 C.F.R. § 435.930(b).
12. 20 C.F.R. § 416.211(a).
13. However, reinstatement of SSI requires submission of evidence
that the individual again meets the financial requirements for the
program. Cf. 20 C.F.R. § 416.1321(b).
14. 20 C.F.R. § 416.1335.
15. 42 U.S.C. § 402(x)(1)(A)(i). SSDI benefits are suspended for any
30-day period during which an individual is confined in a jail or
prison in connection with a verdict or finding of not guilty by reason of
insanity or guilty but insane with respect to a criminal offense, or a
finding of incompetence to stand trial. 42 U.S.C. § 402(x)(I)(A)(ii);
POMS DI 23501.000(A)(3). “POMS” refers to the Social Security
Administration’s Program Operations Manual System, available online
at SSA’s website, http://policy.ssa.gov/poms.nsf.
16. See Social Security Handbook (2001) § 0505E (imprisonment for
conviction of a felony results in benefits not being paid) and § 0506
(last month of entitlement to SSDI generally occurs when disability
ends, individual reaches age 65 or individual dies). Cf. § 1851
(listing events that end entitlement to benefits).
17. 42 U.S.C. § 402(x).

17

Article IV: Applications for Inmates with Psychiatric Disabilities Terminated from or Not Enrolled in Federal Benefit Programs

Commentary on Article IV

Article IV: Applications for
Inmates with Psychiatric
Disabilities Terminated from or
Not Enrolled in Federal Benefit
Programs
A.

State Policy

It shall be the policy of [State] to
assist inmates with psychiatric disabilities
whose eligibility for SSI, SSDI or
Medicaid benefits was terminated while
incarcerated or who were not receiving
benefits at the time they were
incarcerated to apply, while incarcerated,
to receive benefits upon release.
B.

Medicaid
1. The [Medicaid agency] shall:

a. establish procedures for
receiving Medicaid applications on behalf
of incarcerated individuals with
psychiatric disabilities in anticipation of
their release.
b. expeditiously review such
applications and, to the extent
practicable, complete its review before
the individual is released. All reviews
shall be completed within fourteen (14)
days of the application’s receipt.
2. The review process shall assess
whether the individual is presently
eligible to be enrolled in the Medicaid
program or is likely to be Medicaid
eligible upon release.

18

IV. A. State Policy
This article mandates that individuals whose benefits
have been terminated or who were never on benefits will
receive assistance, as needed, in applying for benefits prior
to release. The Council of State Governments Consensus
Project urges states to “establish a process through which
the state Medicaid agency will accept applications from
inmates while they are still in custody and will process these
applications in a timely manner to ensure that those found
potentially eligible are then able obtain access to the
benefits immediately upon release.”1

IV. B. Medicaid Application Procedures
Medicaid application-processing systems, which differ
from state to state, will need to be changed so that they can
expeditiously receive and consider applications from inmates
who are preparing for release.
Examples:
◆ In Colorado, legislation effective January 1, 2003
provides that inmates who were eligible for Colorado’s
Medicaid program at the time they were incarcerated or
who are reasonably expected to meet eligibility criteria
must be given assistance in applying for Medicaid at
least 90 days prior to release.2 The Department of
Health Services must promulgate rules to simplify the
application process and help correctional facilities
implement the law, including by providing training on
Medicaid eligibility. If a person is found to be eligible,
the county department of social services must enroll the
inmate upon release and at the time of release must give
the inmate information about how to access medical
assistance.3
◆ New York State-Access to Medicaid: A program in the
Albany jail, the state’s fifth largest, has improved
discharge planning for individuals with psychiatric
disabilities. County social services staff assist individuals
with applications for Medicaid benefits, which are filed
45 days prior to the anticipated date of release. Applications are registered and logged and held for activation
upon the individual’s release. When released, the
inmate goes to the social services office to verify
information. The social services office not only processes
the Medicaid application but also assists the released
individual in other ways, including help with searching
for a job and accessing food stamps, general assistance
and other programs.4

BAZELON CENTER FOR MENTAL HEALTH LAW

Article IV: Applications for Inmates with Psychiatric Disabilities Terminated from or Not Enrolled in Federal Benefit Programs
◆ New York City: Pursuant to a consent decree approved
by the court on April 2, 2003, New York City will
provide assistance to inmates with mental illnesses in
securing entitlements and obtaining treatment and other
services when they are released from jails. Medicaid
benefits are to be reactivated for any class member who
had active Medicaid benefits in the 12 months prior to
his or her known or projected release date. Those whose
Medicaid benefits are to be reactivated upon release
must have a permanent or temporary (as appropriate)
Medicaid card at the time of release or mailed to an
address he or she provides. Each individual who
appears eligible for Medicaid but whose Medicaid
benefits have not been activated or reactivated as of
release will be enrolled in the state’s Medication Grant
Program or otherwise given means to pay for any
psychotropic medications.5

IV. C. Applying for Federal Disability Benefits
An inmate can begin receiving benefits in the first
calendar month after the month during which he or she is
released from incarceration. SSA will accept applications for
SSI, SSDI and Food Stamps prior to an individual’s release.
See Commentary to Article V.B. regarding SSA Pre-Release
Agreements.
1. Council of State Governments, Criminal Justice/Mental Health
Consensus Project (June 2002), New York: Council of State Governments, at p. 169. The report may be found at
www.consensusproject.org.
2. House Bill 02-1295, General Assembly of Colorado, amending
Colorado Unified Code of Corredtions, 1730 ILCS 5/3-17. The bill
applies to inmates of correctional facilities and community correctional programs. It provides protections for inmates whose SSI or SSDI
cash benefits have been suspended and inmates who are reasonably
expected to meet SSI/SSDI eligibility criteria upon release.
3. Id.
4. Bazelon Center for Mental Health Law, A Better Life—A Safer
Community: Helping Inmates Access Federal Benefits (March 2003) at
12-13, issue brief available at www.bazelon.org/issues/criminalization/
publications/gains.
5. The city signed the agreement to settle a class-action lawsuit
brought on behalf of New York City jail inmates with mental illness,
who were typically released from jail in the middle of the night with no
more than $1.50 and two subway tokens. In an earlier ruling in the
case, the court had ordered the city to provide “adequate discharge
planning.” The court noted that without such planning, inmates risk
“a return to the cycle of likely harm to themselves or and/or others”
and re-arrest. Brad H. v. City of New York, 185 Misc.2d 420, 431 (N.Y.
Sup. Ct. 2000), aff’d, 276 A.D.2d 440 (N.Y. Appl Div. 2000).

BUILDING BRIDGES: A MODEL LAW

a. If the individual is eligible
to be enrolled while incarcerated, the
individual will be enrolled but placed on
suspended status. The individual will be
provided a Medicaid card, entitling the
individual to receive benefits effective
upon his or her release.
b. If the individual is not
eligible to be enrolled in Medicaid while
incarcerated but is likely to be eligible
for Medicaid upon release, the individual
will be enrolled in the temporary
Medicaid eligibility program described in
Article VI. B., but on suspended status
pending release. The individual will be
provided a Medicaid card, entitling the
individual to receive benefits under the
temporary Medicaid eligibility program
effective upon his or her release.
3. To facilitate enrollment in
Medicaid, [correctional agencies] shall:
a. identify inmates with
psychiatric disabilities who are likely to
be eligible for Medicaid while
incarcerated or upon release, and ask
them if they wish to receive benefits
when released, and
b. for those who wish to
receive benefits, ensure that (i)
applications for Medicaid are filed, to the
extent practicable, well in advance of
release and, if possible, at least ninety
(90) days before release, and (ii) all
applicants for these benefits leave the
correctional institution with a copy of
the application.

19

Article IV: Applications for Inmates with Psychiatric Disabilities Terminated from or Not Enrolled in Federal Benefit Programs

Commentary on Article V
C.

Disability Benefits

[Correctional agencies] shall seek
to ensure that inmates with psychiatric
disabilities begin to receive SSI and SSDI
cash benefits for which they are eligible
in the month following release. To this
end, these agencies shall:
1. identify inmates with
psychiatric disabilities who are likely to
be eligible for SSI or SSDI upon release
and ask them if they wish to receive
benefits when released, and
2. for those who wish to receive
benefits, ensure that applications are
filed on their behalf prior to release and,
to the extent practicable, at least ninety
(90) days before release, and that they
leave jail or prison with a copy of the
application.

20

V.B. Pre-Release Agreements
This section of the Model Law directs correctional
agencies to use their best efforts to negotiate pre-release
agreements with the Social Security Administration. The
deadline for concluding negotiations should be inserted
in Article XI.2.
A pre-release agreement is an agreement between a
correctional agency and the Social Security Administration (SSA) to cooperate in the processing of SSI applications under SSA’s “pre-release procedure,”1 which is
designed to “assur[e] eligible individuals timely SSI
payments when they reenter the community.”2 Under this
procedure, SSA (a) processes SSI applications from
incarcerated individuals months before their anticipated
release and (b) makes a prospective determination of
potential eligibility and payment amount, based on
anticipated circumstances.3 Through this approach, SSI
cash benefits are payable as soon as feasible after—
sometimes even on the day of—release.4
Pre-release agreements can be written or verbal,5 and
can apply to one correctional facility, a group of facilities,
or all the facilities in a jurisdiction.6
The SSA will process an application under the prerelease procedure for “those who:
◆ appear likely to meet the criteria for SSI eligibility when
they are released from the institution, and
◆ may potentially be released within 30 days after
notification of potential SSI eligibility.”7
Both sides make commitments. The correctional
agency agrees to:
◆ identify and notify SSA of inmates who (a) are likely to
meet SSI eligibility criteria upon release and (b) may
potentially be released within 30 days of SSA’s making
a prospective eligibility decision;8
◆ designate, for each correctional facility, a facility
liaison to handle all referrals and to work with the
local SSA office;
◆ provide current medical evidence and non-medical
information that may support the inmate’s claim;
◆ provide the anticipated release date; and
◆ notify SSA if that date changes and when the inmate
is actually released.
In return, SSA agrees to:
◆ train facility staff about SSI rules and work with them
to ensure that application procedures work smoothly;
◆ provide a contact person at Social Security to assist

BAZELON CENTER FOR MENTAL HEALTH LAW

Article V: Facilitating Applications for Benefits
facility staff with the pre-release procedure;
◆ process new applications and re-applications in an
expeditious and timely manner;9 and
◆ promptly notify the facility of its decision on the inmate’s
eligibility.10
When the inmate is released, SSA verifies the
individual’s living arrangement, makes a final adjudication
of the claim and initiates payment, all of which can be done
expeditiously.11
A pre-release agreement works best when the office that
makes the initial disability determination, the state’s Disability Determination Service, is involved in its crafting.
A model pre-release agreement created by SSA can be
found at POMS SI 00520.930 Exhibit 2.
Pre-release agreements may also be used to improve
access to SSDI and to Food Stamps. Although the use of
pre-release agreements to speed access to SSDI is not
specifically mentioned in the statute or POMS, jurisdictions
have negotiated such agreements with SSA. The pre-release
procedure can be used to expedite an application for Food
Stamps at the same time. Congress recently took steps to
assure that inmates could apply for Food Stamps as well as
SSI under SSA’s pre-relase procedure.12
Correctional agencies can take advantage of SSA’s prerelease procedure without entering into a pre-release
agreement.13 However, it is preferable to have a pre-release
agreement in place, for clarity about process and about the
commitments made both by SSA and by the correctional
agency.14
Example:
◆ Texas: Pursuant to a pilot pre-release project, federal
benefit applications for SSI, SSDI and/or Food Stamps
are submitted from correctional facilities to SSA 90 days
prior to an inmate’s release from custody. Inmates who
go through this process typically receive their disability
checks very quickly upon release. The state provides a
stipend to released inmates, which helps until the checks
begin. The SSA regional office provided training to local
SSA staff, who at first resisted the new process and did
not fully understand SSA’s rules regarding inmates.
Physicians at corrections facilities received training from
SSA to help them provide the appropriate medical
information concerning inmate’s disabilities. The
approval rate of such applications “has increased by
27% since the inception of the program,” for which
credit is given to “a well-trained and knowledgeable
staff whose sole function is to expedite the Social Security
application process.”15 “The financial benefit to local
and state government is without question a positive

BUILDING BRIDGES: A MODEL LAW

Article V: Facilitating
Applications for Benefits
A.

State Policy

It shall be the policy of [State] for
correctional agencies to enter into PreRelease Agreements with the Social
Security Administration and to otherwise
facilitate participation by inmates with
psychiatric disabilities in federal benefit
programs upon their release from
incarceration
B. Negotiating Pre-Release
Agreements with Social Security
Administration
1. [Correctional agencies] shall use
their best efforts to negotiate Pre-Release
Agreements with the Social Security
Administration that will ensure:
a. speedy consideration by the
Social Security Administration of new
applications for and applications for
reinstatement of SSI or SSDI on behalf of
individuals with psychiatric disabilities,
and that
b. the Social Security
Administration is informed of the
expected and actual release dates of
individuals with psychiatric disabilities
whose applications have been approved
or are pending.
2. Once negotiated, each
agreement shall be implemented as soon
as practicable.

21

Article V: Facilitating Applications for Benefits

C.

Application Assistance

1. Competent staff familiar with
the characteristics of successful SSI, SSDI
and Medicaid applications shall ensure
that proper applications are filed and
updated as needed. These staff will,
among other things:
a. with applicants’ assistance,
complete required forms for applicants
with psychiatric disabilities;
b. with applicants’ consent, secure
medical and other information required
to support applications; and
c. submit applications to the
appropriate agency office.
These staff may be provided
through contracts with local mental
health agencies or providers.
2. With the applicant’s permission,
a copy of each application shall be
provided to a family member designated
by the applicant and to any mental health
case manager who will work with the
individual upon release. Permission to
provide a copy to a parent is not required
in the case of minors under the age of 16.

outcome of the pilot. Another anticipated outcome is a
more successful re-entry into the community once the
offender is released from incarceration.”16
◆ Oklahoma: In partnership with SSA, the Medical
Services Division of the Oklahoma Department of
Corrections has initiated a program to connect inmates
with SSA benefits prior to release in two state facilities
(one for males with development delays and one for
female inmates). The new program includes only
inmates who were eligible for Social Security when they
became incarcerated and those who are over 65. A
“reintegration specialist” at each facility works with a
counterpart at the local SSA office to pull together
applications.17

V. C. Application Assistance.
The model law imposes on staff the obligation to
complete applications, with the help and consent of the
applicant. Alternatively, drafters might impose the obligation
on the applicants themselves, directing that staff help them
as desired. Typically, successful programs use staff to
complete applications.
The model law does not identify the entity that will
employ and train staff; however, it indicates that staff may be
provided through contracts with local mental health
agencies or providers. Providing application assistance
through mental health case managers would be a good
choice. The best approach may be to use staff who already
have substantial benefits expertise, such as staff from the
state mental health agency, public or private communitybased mental heath providers, the state Medicaid agency or
the state welfare agency. For such staff to work successfully
within correctional settings, corrections officials must be
receptive, cooperate fully and provide orientation and
training so that the benefits staff will understand how to work
within a jail or prison environment.
Federal Medicaid law directs that individuals be
permitted to have assistance in applying for benefits.18
Federal Medicaid dollars may be used to pay for costs
incurred in helping individuals to complete Medicaid
applications, at the normal Medicaid match.19 The Americans with Disabilities Act requires that individuals with
psychiatric disabilities be aided in completing applications
for public benefits.
1. 42 U.S.C. § 1383(m) (SSA “shall develop a system under which
an individual can apply for supplemental security income benefits [SSI]
... prior to the discharge or release of the individual from a public
institution”); POMS SI 00520.910 B. “POMS” refers to the Social
Security Administration’s Program Operations Manual System,

22

BAZELON CENTER FOR MENTAL HEALTH LAW

available online at SSA’s website, http://policy.ssa.gov/poms.nsf.
2. POMS SI 00520.900 A; POMS DI 23530.001 A (pre-release
procedure designed “to ensure title XVI funds are made available
immediately upon an individual’s release”). See POMS SI 00520.900
B (“The prerelease procedure applies to penal institutions, as well as
other public institutions.”).
3. “The distinguishing feature of the prerelease procedure is that it
allows for the taking and processing of an SSI application for an
institutionalized individual several months before his anticipated
release. Furthermore, it allows for a prospective determination of
potential eligibility and payment amount, based on anticipated
circumstances. The procedure is intended to serve individuals who,
because they are institutionalized, are currently ineligible for SSI...In
addition to helping those who have never received SSI, the provision
can also facilitate a reinstatement after suspension.” POMS SI
00520.900 A.
4. When SSI benefits are suspended, they can be reinstated
immediately upon release. 20 C.F.R. § 416.1325. When SSI benefits
have been have been terminated, or a new application is made, cash
benefits cannot begin until the month following the month of the
inmate’s release (i.e., the first full calendar month following release).
20 C.F.R. § 416.211(a)(1).
When suspended beneffits are restored immediately upon release,
the inmate receives a pro-rated cash benefit for the month of release
(i.e., the cash benefit is pro-rated for the portion of the month the
inmate is “on the outside”). 20 C.F.R. § 416.421.
5. “An agreement may be formal (a written agreement signed by
both parties), or informal.” POMS SI 00520.910 B.2
6. POMS SI 00520.910 B.1 (“The parties to a prerelease agreement
are [SSA] and the institution (or the agency which administers more
than one institution.”); see also POMS SI 00520.910 B.3.
7. POMS SI 00520.900 B
8. It is important to know how long it might take SSA to process an
application and make a prospective eligibility determination. The
POMS indicate that “if a release date within the life of the application
is likely, [SSA] will] hold the claim until release. If not, ...[SSA] will take
final action to disallow the claim.” POMS SI 00520.920 C.2.b; POMS
SI DI 23530.001 D.4 (when an inmate is not released within “a
specified time period (preferably 30 days) but release within the life of
the application is likely,, [SSA] holds the claim until release. If release
not likely within the life of the application, [SSA] takes final action to
deny the case on technical basis.”) (emphasis in original).
9. POMS SI 00520.910 B.4. See also POMS DI 23530.001 B (“For
all applications received under the prerelease procedure, SSA will
expedite determinations of SSI eligibility and payment amount.”);
POMS SI 00520.900 C.2 (same); POMS SI 00520.930 at 2 (SSA will
“[p]rocess all prerelease claims in an expeditious and timely manner”).
10. POMS SI 00520.920 C.1.a (SSA will “[n]otify institutions of the
determination of potential eligibility as soon as possible”); see POMS
SI 00520.920 C.1.c ( “When ... [an inmate] files, [SSA will] issue an
informal notice to the institution to let the institution know as quickly
as possible whether payments can be expected, so that release
planning can continue.”).
11. POMS SI 00520.920 A.6 (“When the person has actually been
released from the institution, recontact the person to verify the living
arrangement, adjudicate the claim and, if eligible, initiate payment.”)
See also POMS SI 00520.920 C.2.c-d.
12. 42 U.S.C. §1383(n) (“The Commissioner of Social Security and
the Secretary of Agriculture shall develop a procedure under which an
individual who applies for supplemental security income benefits
under ... [SSA’s pre-release procedure] shall also be permitted to apply
at the same time for participation in the food stamp program
authorized under the Food Stamp Act of 1977 (7 U.S.C. § 2011 et
seq.”). Some guidance on implementing this obligation is set out at 7
C.F.R. § 273.2(l) and POMS SI 01801.005, SI 01801.275, and SI
DAL01801.020. The guidance is less than clear.

BUILDING BRIDGES: A MODEL LAW

13. POMS SI 00520.900 C1 (SSA will accept benefits applications
under the pre-release procedure “without regard to whether a prerelease agreement exists”); POMS SI 00520.910 (“a formal agreement
is not a prerequisite for utilizing prerelease [procedure”).
14. Id. (“a formal agreement...is a highly desirable means of ensuring
understanding by all parties.”).
15. The improved process for benefit access is part of a broader
initiative for release planning and follow-up community care. The
Texas Council has contracted with local mental health and human
services agencies for staff to visit inmates six months prior to release, to
engage in pre-release planning, help inmates access benefits and
either provide follow-up care (when the inmate is released into the
same community as the corrections facility) or arrange follow-up care
in the inmate’s home community (for those sent to corrections facilities
in other parts of the state). For more information, the program’s website
is http://www.tdcj.state.tx.us/tcomi/tcomi-home.htm. The Biennial
Report of the Texas Council on Offenders with Mental Impairments,
Submitted to the Governor, Lieutenant Governor, Speaker of the House
(2003), at 26-27.
16. Id. at 28.
17. “Oklahoma DOC Partners with Social Security Administration to
Benefit Inmates,” The Corrections Connection Health Care Network at
www.corrections.com; also at the state’s Department of Corrections
website, www.doc.state.ok.us.
18. 42 C.F.R. § 435.908 (state must allow individual to bring
someone to assist in the application process). See Mount Sinai Hosp. v.
Kornegay, 347 N.Y.S. 2d 807 (N.Y. Civ. Ct. 1973) (finding affirmative
duty of hospital to assist participant in applying for Medicaid benefits).
See also 42 U.S.C. §1396a(a)(19) (state plan must provide safeguards
necessary to ensure that eligibility will be determined and services
provided consistent with the best interests of recipients).
19. 42 C.F.R. § 436.1001 (providing that federal financial assistance
is available to cover necessary administrative costs incurred in
determining eligibility).

23

Article VI: Bridge Programs

Commentary on Article VI

Article VI: Bridge Programs
A.

State Policy

It shall be the policy of [State] to
offer individuals with psychiatric
disabilities temporary Medicaid
eligibility and temporary income support
when released from incarceration while
their applications for federal benefits are
pending.
[Medicaid agency] will administer
the temporary Medicaid eligibility
program, and [state agency] will
administer the temporary income support
program.
B.

Temporary Medicaid Card

1. An individual with psychiatric
disabilities shall be qualified to receive a
temporary Medicaid card upon release
from incarceration if:
a. the individual is not receiving
Medicaid-funded services;
b. the individual is likely to be
eligible for Medicaid; and
c. an application for SSI or
Medicaid was filed on his or her behalf
while the individual was incarcerated or
within three (3) months after the
individual’s release.
2. An individual with a psychiatric
disability may apply for a temporary
Medicaid card while incarcerated or
within three (3) months after release.
Application may be made by submission

24

Even when the state adopts all of the policies and
processes set forth in Articles III-V to facilitate and expedite
access to benefits, some inmates may nevertheless end up
released and in the community without benefits. This might
result from their being released earlier than expected
because of the progress of their legal cases, or from
processing delays by SSA, errors in identifying potentially
eligible inmates and completing applications, or other
unanticipated circumstances.
This article creates bridge programs to keep such
individuals from falling through the cracks. The bridge
programs are available to released inmates who have
applied for federal benefits but whose applications are still
pending. Released inmates qualify for the bridge programs if
their applications for federal benefits were filed during
incarceration or within three months of their release. The
bridge programs provide temporary health care coverage
and income benefits during the period that federal benefit
applications are pending. Without bridge programs, many
released inmates will lack access to health care coverage
and income support and be at risk of decomposition and
re-offending.1

VI. B. Temporary Medicaid
Regardless whether the inmate has ever before been a
Medicaid recipient, states have the flexibility under federal
law to place potentially eligible individuals in their Medicaid
program, pending full review of eligibility. Initially, the cost
of Medicaid services must be borne by the state, but once
an individual’s Medicaid eligibility is confirmed, the state
may seek reimbursement from the federal government for
services rendered before the eligibility determination.2
Reimbursement will be made in accord with the state’s
match arrangement.3
Allowing for quick access imposes some financial risk
on the state because some individuals enrolled in the
temporary Medicaid program may ultimately be found
ineligible for Medicaid. However, the state incurs a greater
risk from the recidivism that often results when released
inmates do not have access to appropriate mental health
services.4

VI. C. Temporary Income Support
Many inmates with psychiatric disorders depend on SSI
or SSDI to secure stable housing. Without stable housing,
released inmates are at risk of decomposition and re-

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Article VI: Bridge Programs
offending. As the Council of State Governments Consensus
Project notes, “[a]dequate housing is the linchpin of
successful reentry for offenders with mental illness.”5
When SSI or SSDI cash benefits are not immediately
available, temporary income support should be provided to
assist released inmates in securing housing and other
necessities.
Temporary income support may be provided by putting
individuals on state General Assistance in states that have
such a program, or through a new program. The model law
directs that payments be equal to the basic SSI payment in
the state. A less costly, but considerably less effective,
alterative would be to make payments equal to the General
Assistance rate.
To the extent permitted by federal law, states may recoup
support payments made to released inmates from SSI and
SSDI back benefits. Under the model law, to be eligible for
the temporary income support program, an individual must
have applied for SSI or SSDI. Once the individual’s eligibility
for SSI or SSDI is established, the individual will receive back
benefits for the time following release during which the
individual’s SSI or SSDI application was pending.
The state may arrange with recipients of temporary
income payments to be reimbursed from any SSI and SSDI
back benefits the recipient receives.6
1. See Nelson, M., Deess, P., and Allen, C. The First Month Out,
Post-Incarceration Experiences in New York City (New York, New York:
Vera Institute of Justice, 1999).
2. 42 U.S.C. § 1396a(a)(34), 42 C.F.R. § 435.914.
3. In all states, the federal government pays at least 50% of the cost
of the Medicaid program. The actual proportion of costs paid by the
federal government depends on the economic well-being of the state’s
population: the poorer the state, the higher the proportion of costs
paid by the federal government. In the poorest states, the federal
government pays approximately 75% of the cost of Medicaid services.
POMS SI 01715.001 B (“The Federal government pays 50 percent of
Medicaid administrative costs and between 50 and 83 percent of
program costs following a statutory cost-sharing formula.”) “POMS”
refers to the Social Security Administration’s Program Operations
Manual System, available online at SSA’s website, http://
policy.ssa.gov/poms.nsf.
4. See discussion of costs in the commentaries on Articles I and X.
5. Council of State Governments, Criminal Justice/Mental Health
Consensus Project (June 2002) at p. 167. Also, “housing is crucial for
helping individuals with mental illness maintain stability and avoid
involvement in the criminal justice system.” Id. at p. 110.
6. We are unaware of any federal law that would bar such an
arrangement. See Washington State Dept. of Social and Health
Services v. Guardianship Estate of Keffeler, — U.S. —, 123 S.Ct. 1017
(2003) (state may recoup foster care expenditures from children’s SSI
and SSDI benefits).

to the [Medicaid agency] of an
application for Medicaid, a copy of an
application for SSI submitted on the
individual’s behalf or other
documentation deemed suitable by the
[Medicaid agency].
3. Within fourteen (14) days of
submission of the application, the
[Medicaid agency] will determine
whether the individual is qualified to
receive a temporary Medicaid card and,
if so, will immediately issue a temporary
Medicaid card to the individual. If the
individual is incarcerated, the card will
entitle the individual to receive benefits
under the temporary Medicaid program
effective upon his or her release. If the
individual has already been released, the
card will be effective immediately.
4. If found qualified for a
temporary Medicaid card, the individual
is entitled to receive covered Medicaid
services from certified Medicaid
providers for a period of six (6) months.
For individuals found qualified while
incarcerated, the six (6) months begins
upon release. For individuals found
qualified after release, the six (6) months
begins on the date of that determination.
The six (6) month term may be renewed
at the option of the [Medicaid agency].
5. A temporary Medicaid card
shall be void if, prior to the end of a six
(6) month term, it is determined that:
a. the individual is not eligible for
the SSI program, and

BUILDING BRIDGES: A MODEL LAW

25

Article VI: Bridge Programs

b. the individual is not eligible for
Medicaid under any other Medicaid
eligibility category.
6. To the extent permitted by
federal law, the state may claim
reimbursement under the Medicaid
program for payments made for care
provided to an individual to whom a
temporary Medicaid card has been
issued. The state may not recoup any
costs from the individual, including if the
individual is found ineligible for
Medicaid.
C.

Temporary Income Support

1. An individual with a psychiatric
disability shall be qualified for temporary
income support upon release from
incarceration if:
a. the individual is not receiving
SSI or SSDI;
b. the individual is likely to be
eligible for SSI or SSDI, and
c. an application for SSI or SSDI
was filed on his or her behalf while the
individual was incarcerated or within
three (3) months after the individual’s
release.
2. An individual with a psychiatric
disability may apply for temporary
income support while incarcerated or
within three (3) months after release.
Application may be made by submitting
to the [responsible agency] a copy of an
application for SSI or SSDI benefits, or
other documentation deemed suitable by

26

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Article VI: Bridge Programs

the [responsible agency]. Within fourteen
(14) days of submission of the
application, the [responsible agency] will
determine whether the individual is
qualified to receive temporary income
support.
3. Temporary income support shall
be paid monthly in an amount equal to
the [basic SSI payment in the state].
Payments will be made for a period of six
(6) months. For individuals found
qualified while incarcerated, the six (6)
months begins upon release. For
individuals found qualified after release,
the six (6) months begins on the date of
that determination. The six (6) month
term may be renewed at the option of the
[responsible agency]. Payments may be
terminated before the end of a six (6)
month term if the Social Security
Administration makes a final
determination that the individual is not
eligible to receive the federal benefits for
which the individual applied.
4. To the extent permitted by
federal law, the state may recoup the
temporary income support from SSI or
SSDI back benefits issued by the Social
Security Administration. The state may
not otherwise recoup any payments of
temporary income support from the
individual, including if the individual is
found ineligible for SSI or SSDI.

BUILDING BRIDGES: A MODEL LAW

27

Article VII: Photo Identification

Commentary on Article VII

Article VII: Photo
Identification
[Correctional agencies] shall
arrange for adults and emancipated
youth with psychiatric disabilities to
have photo identification when they are
released from incarceration.
[Correctional agencies] will ensure that
inmates who lack photo identification
are issued a photo identification card
before or immediately upon release. The
photo identification card will not
disclose the individual’s incarceration or
criminal record. It will list an address
other than a correctional facility.

28

Photo identification is necessary for adults and emancipated minors because it is required to conduct so many
daily transactions. Applications for benefits require proof of
identity, as do many basic activities, such as cashing a
check.1 Often, whatever ID an inmate had prior to incarceration has been lost. This section mandates the provision
of some sort of official, government-issued identification
card, such as a non-driver’s ID, for every individual leaving
a correctional facility for the community. The ID provided
should be generic and not in any way identifiable with the
correctional system.2

1. Nelson, M., Deess, P., and Allen, C. The First Month Out, PostIncarceration Experiences in New York City, at p. 30 (New York, New
York: Vera Institute of Justice, 1999).
2. The Council of State Governments Consensus Project report
states: “Corrections administrators should also assist inmates in
applying for state identification cards, which will be provided upon the
inmate’s release. Without such proof of identification, it is nearly
impossible for a person to avail him or herself of many benefits or
services.” Council of State Governments, Criminal Justice/Mental
Health Consensus Project (June 2002) at p.169.

BAZELON CENTER FOR MENTAL HEALTH LAW

Article VIII: Access to Services

Commentary on Article VIII
This article is designed to promote and ensure continuity
of mental health care for individuals involved in the criminal
justice system. It requires that, when incarcerated, individuals with psychiatric disabilities have access to necessary
mental health services (including substance abuse treatment), particularly counseling, crisis services and appropriate medications.1
In a departure from usual practice, the model law
imposes on the mental health system the responsibility for
providing such care to individuals in jail or juvenile
detention facilities. Such an arrangement, in our view, will
promote better care, and continuity of care, for those
incarcerated pre-trial o sentenced to jail for minor offenses,
who generally stay in jail less than a year and often for
relatively brief periods.
The model law also imposes on the mental health system
the obligation to provide case management services to
inmates, focused on release planning (akin to discharge
planning in the mental health system).This obligation
extends to all inmates, not just those in jails and juvenile
detention facilities. Essential release-planning activities
include: identifying community-based service providers that
can meet the needs of the individual upon release, arranging for the individual to be linked with providers upon
release, facilitating access to benefits programs, and
helping to locate and secure suitable housing for the
individual upon release.2 (Case management services
should continue after release, and can be financed through
Medicaid.)3
The model law requires that, when released, inmates be
given a 14 day supply of medication and access to Medicaid.4 In the community mental health system, prescriptions
are typically for a 30 day supply. The shorter time period is
meant to encourage a visit with a psychiatrist and a
medication review shortly after release.
◆ The Texas Council’s Continuity of Care (COC) Program
provides formal pre- and post- release aftercare for all
offenders with special needs released from Texas
Department of Criminal Justice Facilities (including state
jails and prisons). COC staff develop pre-release plans
in conjunction with community service providers who will
work with the individual following release. In addition,
90 days prior to release, Benefit Eligibility Specialists
initiate all relevant applications for federal entitlements
for which the inmate may be eligible ( SSI, SSDI, Food
Stamps, etc.).5

BUILDING BRIDGES: A MODEL LAW

Article VIII: Access to Services
A.

State Policy

It is [State’s] policy that inmates
have access to mental health services
while incarcerated and upon release, as
provided below.
1. For individuals in prison who
have psychiatric disabilities, the [state
corrections agency] shall be responsible
for the provision of mental health
services.
2. For individuals in juvenile
corrections facilities who have psychiatric
disabilities, the [state juvenile corrections
agency] shall be responsible for the
provision of mental health services.
3. For individuals in jail or juvenile
detention facilities who have psychiatric
disabilities, the [state mental health
agency] shall be responsible for the
provision of mental health services.
4. The [state mental health agency]
shall be responsible for the provision of
the case management services described
in (C.) below.
These agencies may arrange for
services to be provided through contracts
with community mental health agencies or
community mental health providers.
B.

Mental Health Services

1. While incarcerated, individuals
with psychiatric disabilities shall have
access to medically necessary mental

29

Article VIII: Access to Services

health services, including substance abuse
and crisis services.
2. At the time of their release,
individuals with psychiatric disabilities
shall be provided a fourteen (14) day
supply of the psychiatric medications they
were taking prior to release.
3. Individuals with psychiatric
disabilities shall be given access upon
release to Medicaid-covered services as
provided in Articles III, IV and VI.
C.

Case Management Services

1. To aid their transition to
community living, the [state mental
health agency] shall provide to
incarcerated individuals with psychiatric
disabilities case management services well
in advance of their release, to the extent
practicable, and if possible, at least ninety
(90) days before release.
2. The case manager shall work
with the individual to identify services
and supports that the individual desires
and needs upon return to community
living. As desired by the individual, the
case manager will:
a. help arrange for needed shelter,
mental health services including
substance abuse services and other
supports to be provided to the individual
upon release; and
b. help the individual access
federal benefit programs upon release,
including, as needed, by updating benefit
applications.

30

At least two court decisions recognize inmates’ right to
continuity of care upon release from incarceration.
◆ A federal appeals court (covering California, Oregon,
Washington, Arizona, Montana, Idaho, Nevada, Alaska
and Hawaii) has ruled that the U.S. Constitution requires
states to ensure that a released inmate who has been
receiving medication while incarcerated leaves the
facility with “a supply sufficient to ensure that he has that
medication available during the period of time reasonably necessary to permit him to consult a doctor and
obtain a new supply.”6
◆ Relying on state law, a judge ordered New York City to
provide “adequate discharge planning” to individuals
who have mental illnesses, to avoid “a return to the
cycle of likely harm to themselves and/or others” and
resulting arrest.7
1. According to the Council of State Governments Consensus
Project report, states should “[e]nsure that the mechanisms are in place
to provide for...crisis intervention and short-term treatment, and
discharge planning for defendants with mental illness who are held in
jail pending the adjudication of their cases,” Council of State
Governments, Criminal Justice/Mental Health Consensus Project (June
2002), Policy Statement 13, page 102, and “[f]acilitate a detainee’s
continued use of medication prescribed prior to his or her admission
into the jail,” id., Policy Statement 13(e), at p. 107.
2. The Council of State Governments Consensus Project notes that
“[r]eaching out to community-based organizations and agencies that
would serve this population and facilitating their access to the
institution/inmate prior to release will enhance the likelihood that an
individual, upon release, would seek out services.” Report at p. 171. It
urges states to “[iImprove availability of and access to comprehensive,
individualized services when and where they are most needed to enable
people with mental illness to maintain meaningful community
membership and avoid inappropriate criminal justice involvement.”
Id., Policy Statement 1, p. 28. To this end, the Consensus Project
recommends that states “[p]rovide user-friendly entry to the mental
health system for those who need services,” Id., Policy Statement 1(a),
p. 28, and “[f]acilitate collaboration among corrections, community
corrections, and mental health officials to effect the safe and seamless
transition of people with mental illness from prison to the community,”
Id., Policy Statement 21, p. 162.
3. The Council of State Governments Consensus Project notes that
“[f]or inmates with mental illness, whose community adjustment issues
are even more complex than inmates in the general population, the
need for systemic discharge planning is particularly crucial.” Id., at p.
162. “One particularly promising, albeit uncommon, strategy is to
have the transition planner working with the inmate during the last
months of his or her incarceration continue as a case manager
(coordinating the delivery of services and facilitating the person’s
compliance with conditions of release) after the offender’s release to
the community. As part of such a strategy, community-based staff, who
will eventually provide post-release case management, can be brought
into the institution to work with institutional-based discharge planners
in devising and carrying out a comprehensive case management
plan.” Id., at p. 163.
4. The Council of State Governments Consensus Project urges states
to provide “an adequate supply of essential psychotropic medications
upon ...release”). Id., at p. 168
5. Biennial Report of the Texas Council on Offenders with Mental
Impairments, Submitted to the Governor, Lieutenant Governor, Speaker

BAZELON CENTER FOR MENTAL HEALTH LAW

Article IX: State Medicaid Plan
of the House (2003) (available at http://www.tdcj.state.tx.us/tcomi/
tcomi-home.htm), at 20.
6. Wakefied v. Thompson, 177 F.3d 1160, 1164 (9th Cir. 1999).
7. Brad H. v. City of New York, 185. Misc.2d 420, 431 (N.Y. Sup.
Ct.), aff’d, 276 A.D.2d 440 (N.Y. App. Div. 2000).

Commentary on Article IX
The changes in Medicaid procedures described in the
model law will not necessarily require amendments to the
state’s Medicaid plan. Much depends on the level of detail
in the existing state plan. Upon enactment of the law,
Medicaid officials should review the existing state plan and
make any adjustments they find necessary.

BUILDING BRIDGES: A MODEL LAW

Article IX: State Medicaid Plan
If implementation of any regulation
or policy anticipated by this Act requires
an amendment to the state Medicaid
plan, the [Medicaid agency] shall use its
best efforts to obtain federal approval of
the amendment.

31

Article X: Funding

Commentary on Article X

Article X: Funding
A total of $_________ is
appropriated for implementation of this
Act, as follows:
1. $_____ to [Medicaid agency]
for implementation of Articles III, IV
and VI;
2. $_____ to [corrections
agencies] for implementation of Articles
III, IV, V, VII and VIII;
3. $_____ to [responsible state
agency] for implementation of Article
VI.C; and
4. $_____ to [state mental health
agency] for implementation of Article
VIII.

32

The proposals in this model law are designed to be costeffective for states in the long run. Tax dollars are wasted
when individuals with psychiatric disabilities leave correctional settings without access to health care and income
supports. Lacking access to mental health services, housing
and other needed supports, they often experience crises,
deteriorate and end up in emergency rooms, psychiatric
hospitals, jails or all three.
It is extraordinarily inefficient and expensive to provide
care in this way. In King County, Washington, officials
identified 20 individuals with mental illnesses who had been
repeatedly jailed, hospitalized or admitted to detoxification
centers. In the course of one year alone, providing emergency services to these 20 individuals cost the county about
$1.1 million.1
Better care can be provided less expensively, as experience demonstrates. For example, a study of Chicago’s
Thresholds program, a community-based jail diversion
program, documented substantial cost savings from public
investment in community mental health care and housing
for released inmates. During a year in the Thresholds
program, the 30 program participants studied spent
approximately 2,200 days less in jail than in the year
preceding their participation, for savings of $70 per day
plus the expense of arrest and booking. They also spent
about 1,800 fewer days in public psychiatric hospitals, for
savings of $500 per day. Thresholds costs around $26 per
day.2
The model law recognizes that states will incur some
expense to implement it. For example, by accelerating the
receipt of federal benefits, states will also accelerate their
costs in these programs (i.e., state Medicaid shares and
state SSI supplements). In addition, training state workers
and taking other steps required to ensure inmates access to
benefits immediately upon release is not without cost.
The fiscal analysis of Colorado’s 2002 benefit-reinstatement law provides some guidance on calculating implementation costs. In Colorado, participating state agencies
estimated that staff training and benefit-application assistance could be provided by existing personnel at no
additional cost. Additional Medicaid expenditures were
anticipated. Colorado calculated these expenditures as
follows: considering historical data, including typical delays
in receiving benefits, analysts estimated the numbers of
eligible inmates who, upon release, would more speedily
receive benefits, the number of total additional months for

BAZELON CENTER FOR MENTAL HEALTH LAW

which benefits would be received, and the resulting state
cost. Figuring that federal financial participation would
cover half the cost, the required general fund appropriation
for FY 2002-2003 was determined to be $122,564.3
1. Council of State Governments (June 2002), Innovative Programs’
Impact on Costs and Public Safety, Criminal Justice/Mental Health
Consensus Project, at p.13 (citing unpublished data provided by
Patrick Vanzo, Section Chief, Crisis and Engagement Services, Mental
Health, Chemical Abuse and Dependency Services Division, King
County Dept..of Community and Human Services). New York: Council
of State Governments. The report may be found at
www.consensusproject.org.
2. Information available at www.thresholds.org. The Council of
State Governments Consensus Project report and website contain
information about other exemplary programs and their costeffectuveness.
3. Colorado Legislative Council staff, State Fiscal Impact of HB021295 (2/16/02).

BUILDING BRIDGES: A MODEL LAW

33

Article XI: Effective Dates

Commentary on Article XI

Article XI: Effective Dates
1. Articles III, IV and VII
become effective _____ days after
enactment. The [Medicaid agency] will
adopt the policies and procedures
required by Articles III and IV within
_____ days after enactment. These
deadlines shall be extended as needed
pending federal approval of any
necessary amendment to [state’s]
Medicaid plan.
2. Correctional agencies] will use
their best efforts to conclude
negotiations with the Social Security
Administration, pursuant to Article V,
within _______ days after enactment.
3. The temporary health
insurance and income support programs
described in Article VI will be
implemented within _________days
after enactment.

States are facing difficult fiscal issues, and this model
law can help relieve some of the pressures on corrections,
law enforcement and public health budgets at these critical
times. Implementation of the its provisions should be a
priority and should occur as soon as possible.
◆ New York City agreed to implement, 60 days after court
approval, a settlement agreement mandating the
provision of a comprehensive range of discharge
planning services, including benefit reinstatement, for
individuals with mental illnesses who are inmates in city
jails.1
◆ Colorado’s 2002 benefit-reinstatement law, mandating
that correctional facilities implement steps to facilitate
benefit reinstatement for individuals leaving jails and
prisons, became effective six months after passage.2

1. Brad H. v. City of New York, No. 117882/99 (N.Y. Sup. Ct. April
2, 2003) (consent decree).
2. C.R.S.A. § 17-1-113.5 (inmates held in correctional facilities)
and C.R.S.A. § 17-27-105.7 (offenders held in community corrections
programs).

4. Article VIII will be
implemented within ____ days after
enactment.

34

BAZELON CENTER FOR MENTAL HEALTH LAW

 

 

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