The criminal justice system is meant to be a system that finds justice, gives an appropriate punishment, and once the punishment is fulfilled, helps people convicted of crimes contribute to society. Prison time has the dual purpose of punishment and rehabilitation. Yet, more and more people who have been convicted of crimes and served their time are being denied basic entitlements and rights of citizenship in the United States.
For many, the right to vote is the first thing that comes to mind for rights that are reduced after serving time. However, the barriers placed on the ability to work present a more subtle and accepted form of America’s inability to bring former felons back into society. Now, as many states look to tie work to the ability to gain health insurance, the problems that these barriers present are becoming even greater in importance.
Many have heard of the effort to “ban the box” or remove the question on many job applications asking whether a person has been convicted of a crime. This effort has had moderate success in ensuring people that have been convicted of a crime have the opportunity to seek employment. But the success has been localized and the practice is still persistent creating a barrier to employment for many former felons.
The administration and leaders in the states advocating for this change would argue that they provide many opportunities to people other than getting a job. People can get involved in community service or do job training activities under these waiver plans. However, if anyone has become involved in community service over the last decade can attest, there are often significant barriers to prevent people from these opportunities as well. Nearly all volunteers opportunities that may involve children present require that volunteers go through a background check process. More and more other community service related activities are requiring similar additional steps in order to shield themselves from liability and keep their costumers safe. In a perfect world there would be community service opportunities available to all people that would like to contribute to the betterment of their community. However, these opportunities are not available to everyone.
Those in favor of this policy may continue to argue that people with a history that includes interactions with the criminal justice system may still have an avenue to obtain Medicaid coverage. It is true that there are other avenues that a person could take to fulfill the requirement. For instance, a person could enroll in a job-training course. This would fulfill the requirement, yet a person can only take so may of these courses. If they are prohibited from getting a majority of jobs in the area, what value are these job-training programs?
People that have had interaction with the criminal justice system have higher rates of opioid addiction. Kentucky and several other states that have debated instituting the work requirement provision have been ground zero in the opioid epidemic. While the Administration was able to see the problem of requiring people who are addicted to opioids to work when jobs in the area often require drug tests. Further, Medicaid is a main payer for opioid addiction services. Seeing this problem of creating a work requirement for the population would essentially exacerbate the opioid problem, the administration made an exception for people who are currently in treatment. As had been mentioned elsewhere, opioid treatment programs in many parts of the country have wait lists and additional barriers to participation. Therefore, it is conceivable that someone who is suffering from addiction may not be able to get a job or receive treatment and would in turn lose their Medicaid, the only way many are able to pay for treatment since Medicaid is the primary payer for opioid addiction services. While the exception for opioid treatment was an important step to ensure that people suffering from opioid addiction do not lose their access to a way of treating their addiction, the problem remains. There will still be many people who continue to suffer from addiction and do not receive the help that they need. The Trump Administration’s opioid task force and many other on both sides of the isle have recognized the important role Medicaid plays in addressing the opioid epidemic. Yet, the proposal out of Kentucky and the guidance outlined by the Centers for Medicare and Medicaid Services (CMS) has ignored this critical role in curtailing the epidemic. Ignoring the challenges to accessing treatment has the potential of making the opioid epidemic even worse.
Kentucky and other states that are contemplating the work requirement options outlined by CMS must make an effort to ensure that either job or community service opportunities are available to formerly imprisoned individuals. States won’t receive help for paying for these services from the Trump administration. The guidance outlined that states could not use federal funds from CMS to pay for these activities. This is consistent with other federal policy related to the use in Medicaid funds and CMS likely made the correct judgment when determining that Medicaid funds could not be used for these activities. However, CMS made the wrong decision when not requiring that the state make these opportunities available and partnering with other parts of the federal government to provide the financial resources to ensure that states have the ability to require additional barriers to beneficiaries. To be clear, the requirement that beneficiaries work at all is both legally tenuous and morally wrong. But if the administration is going to allow states to make requirements of their citizens, it is the obligation of the federal government to protect those who may be unable to protect themselves. While Medicaid is a jointly funded state and federal program largely administered at the state level, the beneficiaries are beneficiaries of both the state and the federal government. A federal floor is necessary to protect beneficiaries from a state government that is focused on reducing benefits or providing subpar access to health resources. A state has an incentive to maintain Medicaid programs due to the large amount of federal funds that flow into the state through Medicaid, stimulating the health care economies of states. The federal government has a responsibility to the taxpayers as well as to beneficiaries to ensure that the state governments are meeting the intended use of these federal funds. Medicaid funds have the purpose of improving the health and financial well being of the intended beneficiaries. Creating barriers and preventing whole groups of people who the law was intended to make eligible for health care goes against the mission of both states and the federal government to protect beneficiaries and provide high quality improved health. The law intended to be available for people who are unable to get coverage because of lack of employer based health insurance. It has been widely known that former convicted felons have had a higher rate of uninsurance due to difficulties getting jobs after prison.
It is the responsibility of the state to ensure that if they put a barrier between a person and a benefit that any individual can reasonably overcome the barrier. In the case of work requirements, the barrier is often too high for people who have a history involving the criminal justice system.