Comments re: KENTUCKY §1115 Waiver

Amendment SUD Incarceration Services

Thank you for the opportunity to comment on the Kentucky Department of  Medicaid Services’ (DMS) Section 1115 SUD Demonstration Proposed  Amendment: Continuity of Care for Incarcerated Members. Kentucky Voices  for Health (KVH) is a nonpartisan 501(c)(3) coalition of consumer advocates  that represents more than 200 individual and organizational members from  across the commonwealth working to address the underlying causes of poor  health through policy advocacy. KVH hopes everyone in and around the  Capitol are safe given the week.

KVH is deeply supportive of increasing Kentuckians’ access to quality healthcare, and therefore this amendment to Kentucky’s existing Section 1115  demonstration project that expands substance use disorder services (SUD) for  Medicaid beneficiaries.

Kentucky Voices for Health appreciates that DMS has chosen to address SUD  from pre-trial to release, making this the most comprehensive demonstration  of its kind. This demonstration bridges healthcare access for justice-involved  Kentuckians by providing evidence-based treatment and supports for reentry,  with the goals of improving outcomes for people with SUD and Severe Mental  Illness (SMI); overcoming barriers to care; decreasing recidivism; and  clarifying the role of Managed Care Organizations (MCOs) responsible for the  provision of Medicaid services. KVH supports these stated goals with one  addition. There is great potential for preventing incarceration through the  provision of community-based services, which should be the ultimate goal of  this project.


One of the most dramatic changes in the healthcare landscape in Kentucky was the  implementation of the Patient Protection and Affordable Care Act (ACA), with the expansion  of Medicaid in 2014 and the inclusion of SUD services for Kentuckians experiencing  addiction and recovery from addiction. As a result of the ACA’s requirement for pay parity  and the inclusion of SUD treatment under Medicaid expansion, services increased by more  than 700 percent over the first 30 months of implementation. In the years since Medicaid  expansion, drug-related deaths have decreased in Kentucky , although this positive trend is at risk of being reversed by the current COVID-19 pandemic and economic recession.

Even with expanded coverage, Kentuckians are still struggling with a substance use crisis  that has been decades in the making. There are still too many Kentuckians who need  medical care for addiction and recovery services. , Many of those individuals are currently or recently incarcerated. The SUD services available vary greatly by region and MCO, with  many having no access or limited access to the more comprehensive and evidence-based  services provided under this demonstration.


As we consider the design and implementation of this proposed demonstration project, it is  important to recognize that Kentucky is currently experiencing an incarceration crisis. Since 1970, the jail population in Kentucky has increased 740 percent. Since 1983, the  population of people in prisons in Kentucky has increased 168 percent. Neither our  physical buildings nor programming for rehabilitation have kept up. Our jails are  overcrowded and Kentuckians are too often leaving jails without secure connection to services – to support recovery and prevent a return to incarceration.

Careful planning and policies must be included with implementation of this demonstration  project to assure that this experiment does not contribute to an increase in the number of  Kentuckians who are incarcerated, nor the length of incarceration. One simple and common  sense modification to this proposal would be to strike the words “jail based” on page 12 to  reflect that a community-based six-month treatment program may serve as an alternative to  a felony conviction. If the intent of this portion of the demonstration project was residential  six-month treatment program, adding the word residential would still allow for a community  based treatment and not the clear preference for incarceration.

“Upon an agreement between the judge, the commonwealth attorney, the client in  question, and their attorney, successful completion of a jail based six month  treatment program may serve as an alternative to a felony conviction.”

This project should never be used to justify incarceration, initial or ongoing. To further  prevent that unintended consequence, the Department of Corrections (DOC) and the  Administrative Office of the Courts (AOC) should provide regular reports on lengths of

incarceration for our fellow Kentuckians participating in this project, as well as the number of  individuals who are incarcerated with a self-reported or diagnosed SUD.

All communication to stakeholders and potential participants, including professionals in our  justice system like judges and attorneys, must be clear that this demonstration project is  intended to expand access to healthcare, improve outcomes, and support reentry by  removing barriers in transitioning from incarceration to community. Without affirmative and  ongoing outreach, education, along with regular monitoring, it is possible that this purpose  will not be clear to all stakeholders. For example, prosecutors and judges may see the  project as an argument supporting incarceration as the place with the most resources  available to a defendant, pre- or post-trial. That must be avoided by prioritizing access to  comparable community-based treatment whenever possible.


We would like to thank DMS for finding opportunities to collaborate with other agencies to  improve Kentuckians access to comprehensive, evidence-based SUD services at every  stage of interaction with the justice system and Department of Corrections (DOC). Other  states have restricted demonstration projects to periods of time unrelated to the needs of the  individual. KVH appreciates that this demonstration project takes a more patient-centered  approach of finding ways to improve access pre-trial and post.

As we mentioned before, this demonstration project has the potential to prevent incarceration from ever occurring, which can and should be the ultimate goal. This can be  done by guaranteeing access to comprehensive, evidence-based treatment in the  community for Medicaid-eligible individuals as a diversion alternative available to  prosecutors and judges.

To be sure that evidence-based, medically appropriate treatment is available in the  community, we also ask that clear guidance is sent to community providers that Medicaid  can pay for court ordered and medically appropriate: SUD residential rehabilitation,  outpatient services including case management, psychiatric evaluation, psychiatric testing,  psychological testing, individual therapy, group therapy, family therapy, intensive outpatient,  outpatient detoxification, methadone maintenance, Suboxone treatment, and medication  evaluation, prescription, and management.

There have been robust conversations amongst providers in NKY, including SUN and  Transitions, rationally opposing a judge being given the power of an appropriate health care  provider, but also legal fears about Medicaid reimbursement. Those agencies, and all  others, should have clear guidance that Medicaid can be a payer for medically appropriate  and billable healthcare that also fulfills court orders. In ensuring that this demonstration  does not allow space for incarceration to supplant community based treatment, Kentuckians  who are involved with the justice system must be protected from discrimination by providers.  Unfortunately, there are healthcare providers in Kentucky who will not admit otherwise  eligible and medically in need Kentuckians if they believe they will not be able to complete  the program because of potential upcoming incarceration or otherwise are involved with our  justice system. DMS, DOI, and MCOs can work together to change that. We suggest clear  communication and requirements from all appropriate state agencies and ongoing education  from our MCOs. We also suggest ongoing communication with judicial training to educate  judges about requiring evaluations and medically appropriate treatment only to further  prevent the conflict.

To integrate the experience of Kentuckians who are moving out of incarceration with  community-based healthcare, as designed in this proposal, KVH recommends that DMS  work with AOC to adjust diversion and sentencing forms to include acknowledgment of the  availability of community based treatment for SUD. Every case deserves clear resource  analysis, from the cost of incarceration, and for cases including SUD, the availability of  appropriate healthcare services. For the long term success of our community members who  need SUD treatment, we must ensure services are provided in the least restrictive setting,  prioritizing community treatment over incarceration whenever possible.

This demonstration project also creates an opportunity for Kentucky’s contracted MCOs to  work with our Department of Insurance (DOI) and with AOC and DOC to be sure that  Kentuckians they insure have ready access to quality, evidence based residential, intensive  inpatient, outpatient, and all medically appropriate care for their members with SUD or co occurring SUD and SMI. MCOs, and all health insurance plans, must have truly adequate  networks of evidence-based residential treatment options for their members, when  residential treatment is the appropriate level of care, jails and prison must never be  considered part of those networks or calculations. Currently, networks are not providing  enough evidence-based SUD treatment programs with available beds to serve all of the  justice-involved Kentuckians who need treatment. Some regions in Kentucky have sufficient  beds available and some do not.

The success of this project is strongly dependent on MCOs having an appropriate and  adequate network in the community providing the full spectrum of SUD treatment and  recovery programs, ranging from fully to partially residential programs, intensive outpatient  programs, outpatient therapy to 12-step programs, peer support, targeted case  management, care coordination, and medication-assisted treatment programs. These  community programs need to be of high quality, evidence-based and very accessible to  individuals both as an alternative to incarceration for some and immediately upon release  from incarceration for others. Reimbursement for these services must be at parity with  similar physical health services in order to support an adequate network of quality services.

Furthermore, “prior authorization” is a tool too often used by MCOs to deny care. It is  common practice for MCOs to deny needed behavioral health services based on an  improper application of “medical necessity” criteria. To prevent this misuse and ensure  access to needed services in community-based settings, DMS should make permanent the  suspension of prior authorization for all behavioral health services, which is currently in  place due to the COVID-19 pandemic. This suspension should apply to all SUD and mental  health services and treatments, including targeted case management. If the suspension of  prior authorization is lifted, DMS should have clear rules in place to prevent misuse along  with strong enforcement.


Kentucky Voices for Health applauds the inclusion of Severe Mental Illness (SMI) services in  this project. Kentucky incarcerates more individuals with severe mental illness than we  hospitalize. This demonstration has the potential to greatly improve the delivery of appropriate care for our neighbors with SMI.

KVH would, however, urge a revision to not exclude Kentuckians arbitrarily based on the  point in time or otherwise ranking of diagnoses. If an individual has a substance use  disorder, they should be eligible to participate in the recovery paths provided by this  demonstration project. We recommend deleting the word “primary” in the last paragraph on  page 11:

“Individuals will be Medicaid eligible incarcerated members who have a primary diagnosis of SUD.”

A diagnosis of SUD should suffice for eligibility, whether or not there are co-occurring  disorders discovered before or after the SUD diagnosis. Requiring the diagnosis be primary  is an unnecessary and unsupported tempering of the purpose of this demonstration to  address SUD for Kentuckians who are at risk of incarceration or currently incarcerated.

KVH strongly supports the inclusion of coordinated enrollment pre-release. Pre-release  Medicaid and MCO enrollment are a necessary foundation for successful case management  and care delivery. Research is clear that poor health and healthcare needs make it harder  for formerly incarcerated people to successfully reintegrate into their communities. Research suggests that intensive case management improves outcomes for people returning from incarceration, particularly by helping them address mental health needs. This demonstration is targeted the right way in connecting individuals to their MCO prior to  release and aligning resources for the individual to support success reentry and recovery.

We also strongly support the expansion of Substance Abuse Medication Assisted Treatment  (SAMAT) and Medication Assisted Recovery (MAR), which is extremely important to  support and maintain recovery. Kentuckians with addiction are suffering and KVH is grateful  this proposal acknowledges that reality and promotes a full range of treatment, particularly  the language on page 14, “Treatment options include: member, family and group therapy,  peer support services and MAT of their choice that is determined clinically and medically  appropriate.” The patient-centered approach is always the right one. To that same point, on  page 19, where the objectives of the amendment are described, we suggest clarifying that  same patient centered commitment and improved likelihood by replacing the word allow  withe word require:

“First, to provide SUD treatment to eligible incarcerated individuals in order to  ensure this high risk population receives needed treatment before release, and to  strengthen follow up care with a Medicaid provider after release by paying for SUD  treatment while incarcerated; and to allow [require] the recipient’s chosen MCO to  coordinate aftercare with a Medicaid provider 30 days before release.

We share the Kentucky Mental Health Coalition’s request to more clearly outline the  providers, services, and treatment options available for those individuals who have co occurring SUD and SMI. We also agree that ongoing problems that currently exist in  Kentucky’s behavioral health community vis-à-vis MCOs with regard to network adequacy,  prior authorizations, and definitions and applications of medical necessity criteria are issues  that should be addressed in this waiver proposal so that they do not become barriers to  successful implementation.

Finally, we cannot emphasize enough that access to a full and robust continuum of  community-based SUD and SMI treatment and recovery programs is critical to preventing  incarceration and enabling justice-involved Kentuckians to achieve and maintain recovery.

Thank you again for the opportunity to provide comments on this 1115 SUD Waiver. We  appreciate the broad scope of this proposed demonstration and support the stated goals  with the addition of preventing incarceration as the primary goal. For this demonstration to  be truly successful at improving outcomes for justice-involved individuals, we must ensure  Kentuckians are not penalized by being incarcerated instead of accessing diversion  programs or Drug Court or are held in incarceration for completion of treatment programs  that should be available in the community.

Kentucky Voices for Health appreciates the careful consideration given to this proposal and  requests any response prepared to these comments and others be sent to


Cara L. Stewart

Director of Policy Advocacy

Kentucky Voices for Health

KVH has identified priority legislation during the 2021 Regular Session that promote racial equity and reduce health disparities.  More info.