Under current law, Medicaid will not pay for health care services for an individual in custody who has not been convicted of a crime


Washington (October 17, 2019) – Senator Edward J. Markey (D-Mass), Jeff Merkley (D-Ore.), Sherrod Brown (D-Ohio), and Dick Durbin (D-Ill.) today introduced legislation that would protect continuity of Medicaid coverage for pretrial detainees, ensuring health care services are provided to an individual who is in custody pending disposition of charges. Currently, individuals who have been arrested and are able to post bail maintain Medicaid coverage, while those who remain in custody can lose it despite not having been convicted of the crime for which they have been charged. The result leads to a gap in coverage for pretrial detainees who are in the greatest need of care, increased bureaucratic government red tape as individuals are released and must reactivate their Medicaid coverage, and an unpredictable budgetary burden for sheriffs and local counties who are forced to pay the medical bills.


“Our justice system also should be based on the principle of Medicaid until proven guilty. Individuals who have not been convicted of a crime should not lose lifesaving health care coverage simply because they were unable to make bail,” said Senator Markey. “It is past time to end this unfair and discriminatory practice that not only exacerbates health issues like diabetes and opioid addiction among individuals who would otherwise have access to their health care coverage, but it strains local budgets. I’ve worked with counties across Massachusetts to call attention to this shameful policy and identify solutions, and I am grateful to my Senate colleagues for joining me in righting this injustice.”


“The foundation of our judicial system is innocence until proven guilty,” said Senator Merkley. “It doesn’t make sense that Americans awaiting trial—half of whom have serious health conditions—are cut off from Medicaid, Medicare, and veterans’ benefits that they rely on to stay healthy, just because they are unable to pay bail.  It’s time for Congress to stand up for these Americans, by making sure they continue to receive the health coverage and treatment they need and qualify for.”


“Medicaid is the most important tool we have to combat addiction and support individuals living with mental illness, including those who may be involved with the criminal justice system,” said Senator Brown. “In this country you’re considered innocent until proven guilty, and taking health insurance coverage away from individuals while they wait for their constitutionally protected day in court is counter to that American value.”

A copy of the legislation can be found HERE.


“Jails have become the defacto mental institutions of America. For too long sheriffs have seen the devastating impacts that the mental health crisis and the opioid epidemic have on their communities,” said Jonathan Thompson, Executive Director, National Sheriffs’ Association. “This is a matter of fairness, access to care, and human dignity. Citizens, in crisis, need to know their Medicaid benefits won’t be denied if arrested and incarcerated without determination of guilt.  Unfortunately, they are, and we heartlessly require them to re-apply for new benefits when release from custody. As the most civilized nation in the World it is long overdue for this legacy issue to be remedied. Senator Markey is bravely taking on this critical problem, and we applaud his effort and the support.”


“Individuals involved in the justice system often have unique health care needs, and we need a strong federal-state-local partnership to address them. Stripping or suspending federal health care benefits of pre-trial detainees, who are presumed innocent, violates their constitutional rights and increases their chances of ending up back in jail, on the streets or worse,” said Matthew Chase, Executive Director, National Association of Counties. “We thank Senator Markey for introducing this important bill that will allow pre-trial detainee access to Medicaid, and lead to better health outcomes and safer communities.”


“We applaud Senators Markey, Merkley, and Brown for the introduction of the Equity in Pretrial Medicaid Coverage Act,” said Chuck Ingoglia, President and CEO, The National Council.  Individuals in a pretrial situation who have not been convicted of a crime and cannot afford to post bail, should not pay the penalty of losing access to their health care coverage. This legislation fixes an inequity in both our criminal justice and health care system, insuring access to care for people who may need it most while they await trial. Thank you to the Senators for their leadership on this legislation.”


“This legislation will end a practice that harms those who arguably could need Medicaid the most,” said Massachusetts Suffolk County District Attorney Rachael Rollins. “To take away coverage from someone who cannot afford bail – and is presumed innocent, as they have not been convicted of a crime – is cruel and penalizes the poor. I wholeheartedly support Senator Markey’s proposed legislation.” 


“As we continue to reform bail practices in Massachusetts to minimize the tremendous impact even a short period of incarceration can have on someone’s life it makes sense that health care is part of that discussion,” said Massachusetts Middlesex District Attorney Marian Ryan. “This legislation seeks to end the practice which further penalizes individuals incarcerated due to a lack of financial resources by limiting their access to health services.  I appreciate Senator Markey’s thoughtful approach to this issue.”  


Organizations supporting the legislation include the National Sheriffs’ Association, National Association of Counties, Major County Sheriffs of America, National Council for Behavioral Health, Infectious Diseases Society of America, HIV Medicine Association, Massachusetts Sheriffs’ Association, FamiliesUSA and Center for Law and Social Policy.