Medicaid and Medicare providers must provide the same high quality of care to justice-involved individuals as to other individuals. In a CMS letter to state survey agency directors, the agency set out guidance on the federal requirements for providing services to justice-involved individuals. The letter defines “justice involved,” sets out relevant conditions of participation (CoPs), and gives hypothetical examples of provider interactions with justice-involved individuals (CMS Letter, S&C: 16-21-ALL, May 3, 2016).
Justice involved. Individuals who are justice involved include (1) inmates of a public institution (federal prisons, local jails, detention facilities, or other penal settings); (2) individuals in the custody or under the care of law enforcement; and (3) individuals under community supervision. The Social Security Act (SSA) prohibits federal financial participation (FFP) under Medicaid for inmates of a public institution, but provides an exception for patients in a medical institution. Additionally, many justice-involved individuals receive care before and after institutional stays.
Providers. To be eligible for Medicare or Medicaid payment, medical institutions—including skilled nursing facilities (SNFs), nursing facilities (NFs), hospitals, psychiatric hospitals, critical access hospitals (CAHs), and intermediate care facilities for individuals with intellectual disabilities (ICFs/IID)—need to be in constant compliance with federal CoPs while treating justice-involved individuals. The letter explains that periodic, onsite recertification surveys are conducted to assess continued compliance.
Questions. In addition to discussing how justice-involved individuals affect specific CoPs for each provider type, the letter sets out some survey-oriented considerations that are applicable to all provider types. For example, because the Department of Corrections (DOC) or a Parole Board should not have control over the conditions of a justice-involved individual’s care, a surveyor may ask whether the provider or the DOC maintains control over the conditions of care. Surveyors may also ask if federal requirements for screening and emergency care are met, for example, like those contained in the Emergency Medical Treatment and Labor Act (EMTALA). Additionally, surveyors may inquire as to facilities’ compliance with federal admission and discharge requirements. Surveyors may also examine assessments of individuals’ need for care, treatments provided to justice-involved individuals, whether justice involved individual oriented training has been given to staff members, and the degree to which facilities’ are prepared to ensure safe and quality care for patients and residents.
Hospitals. The CMS letter also focuses on several specific hospital CoPs, including, those regarding restraints. For example, the letter clarifies that if a justice-involved individual, in the custody of law enforcement or the DOC, is brought to a hospital while subject to security measures like physical restraints, so long as the hospital does not participate in that restraint, the restraint is not governed by hospital CoPs. Additionally, medical interventional performed for a law enforcement purpose is not viewed as a health care service for CoP purposes.
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