Prisons are long-term care facilities. So why don’t inmates get priority for Covid-19 vaccination?

In the four-tier priority list for Covid-19 vaccination set out by the Centers for Disease Control and Prevention, residents of long-term care facilities are at the top along with health care personnel — but not if those long-term care facilities are prisons, jails, and other detention centers.

The “science” behind that decision continues to baffle me. Had the Covid-19 pandemic struck six years earlier, during the time I spent serving time at York Correctional Institution in Niantic, Conn., I would have been one of those inmates fretting about her time in line for the vaccine. During the H1N1 pandemic, I lived in one of the 11% of state prisons that didn’t get a supply of H1N1 vaccine in 2009 and 2010. I never got the shot and, quite frankly, never knew if I needed it or not.

I know that prisoners need this one.

Giving inmates the same priority for vaccination as nursing home and long-term care residents would benefit community health as much as it would the inmates. The Prison Policy Initiative estimates that, as of December 2020, as many as 500,000 community infections resulted from mismanagement of the Covid-19 risk in correctional settings. Yet inmates in 19 states will likely be vaccinated only after every free person in the community who’s willing to accept it.

Incarcerated individuals are one of only two populations — the other is individuals remanded to mental health facilities — whose access to care is constitutionally protected. It seems to me that state policies ignore this because they are hopelessly mired in prejudice against people who are perceived to have broken the law, a group that’s disproportionately people of color.

Swallowing that explanation without interrogating it further doesn’t help us.

There’s another way to look at the differences in vaccine prioritization among states, one that pushes the dialog forward. It’s this: The larger public-health infrastructure throughout the country has excluded prisons and jails from definitions of what constitute congregate living settings, from consideration for the dignity inherent in human life, from inspection, from oversight, and from more for so long that including them in a nationwide medical endeavor is so foreign that it’s practically anathema.

Nursing homes and prisons, of course, aren’t the same. For one, 174,474 people have died of Covid-19 in nursing homes (52 per 1,000 residents), compared to 2,474 Covid-19 deaths in correctional facilities (1 per 1,000 inmates) as of March 15. The difference in death rates shouldn’t indicate a relative safety of prisons and jails. Nursing home residents are older: The average age of a nursing home resident is 82.6 years, whereas the median age for prisoners was 36 years the last time the Bureau of Justice Statistics officially calculated it in 2013. If more people in prison were older, more of the 388,321 Covid-19 cases in correctional facilities would have ended in death.

More importantly, nursing homes and prisons differ in how state governments value their respective residents. This distinction isn’t just societal; it’s structural. Prisons and jails are completely unregulated, unlike nursing homes which undergo public health licensing. Even correctional kitchens aren’t subjected to regular oversight because they don’t fall under the purview of the Food and Drug Administration; maggot infestation won’t invite an inspection.

It’s impossible to value the health, wellness, and safety of a population while refusing to oversee the care they receive. Yet that’s the contradiction that everyone from lawmakers to corrections professionals to inmates themselves have accepted for years. It’s what crept up on state officials when they had to formally state how much they value these lives — even though they do nothing to assure that they’re protected — when the Centers for Disease Control called for preliminary vaccination plans.

Sure, we’ve flirted with this idea of regulating inmate health care the past — a bill in New York would have put corrections under the supervision of the state Department of Health — but we’ve never consummated our connection with it. The New York bill didn’t even get a committee vote.

Oversight is especially absent in correctional health care delivery systems. While individual health care providers — physicians, physician assistants, and nurses — work under individual licenses, the system that dispenses medical care within a correctional setting isn’t regulated. Accreditation, though not licensure, is available through the National Commission on Correctional Health Care (NCCHC) but it’s entirely voluntary and the NCCHC doesn’t list the facilities that subject themselves to the process. An exact number of accredited facilities remains elusive. The NCCHC says it accredits “nearly 500 prisons, jails and juvenile facilities,” but a presentation given by NCCHC Managing Director Brent Gibson in 2014 stated that the same number “participated in accreditation,” which isn’t the same as being accredited. An expert who asked not to be named told me that the number of accredited facilities is more likely in the “single digits.” Whether it’s 500 or five, that’s still not many of the nearly 7,200 prisons, jails, and detention centers in the U.S.

It’s important to note that vaccinating incarcerated people against the novel coronavirus at any priority doesn’t require an unprecedented level of superintendence. Existing correctional health care providers administer the shots to inmates in routine clinical settings. No outside providers or agencies enter the facility to help with vaccination.

In general, vaccination is spotty in correctional settings. Only two states, Michigan and Texas, routinely vaccinate inmates and then it’s for hepatitis B, a bloodborne — not an airborne — disease. Influenza vaccination varies among states; jails are even less reliable in providing these shots because the populations are transient. Providing the same care to inmates as to society at large — even if it’s just two shots — is still such a system shock that it’s practically inconceivable.

It doesn’t have to be, though. Federal law currently prevents meaningful oversight or “norm-setting forces” such as competition and accountability from acting inside prisons and jails, and therefore prevents the lives within from mattering. The Social Security Act, which governs the financing of health care for elderly and low-income people — most incarcerated people are indigent and they have, on average, 41% lower incomes than comparable non-incarcerated populations — contains an explicit exemption for inmates that assures that Medicaid can’t cover the medical care they receive.

The Medicaid Reentry Act — its introduction in Congress in 2019 never received so much as a committee vote but which has since been reintroduced by Rep. Paul Tonko (D-N.Y.) — would remove the inmate exception in the Social Security Act and allow Medicaid coverage to start 30 days before an individual is discharged from custody. Even that small foothold is enough to start regulating what happens health-wise inside and could revolutionize the way medical care is provided in prisons, jails, and other detention centers — as well as how we value the health and safety of inmates.

Medicaid coverage for prisoners isn’t a silver bullet for vaccine prioritization. Even if the Centers for Medicare and Medicaid Services were overseeing health care in these settings right now, it wouldn’t have been able to order inmate vaccinations. Without a federal law stating otherwise, vaccinations would still have been left to the states’ discretion.

But if CMS covered and oversaw correctional care during Covid19 the same way it did for nursing homes and long-term care, the agency might have paved the way for better vaccine distribution practices as they were being developed by state public health authorities. Six states applied for waivers — called Section 115 Demonstration Waivers — to use Medicaid funds to cover Covid-19-related care for inmates, but none have so far been approved. Even a tiny addition by CMS could have made a big difference by mitigating some of the viral spread with much-needed PPE and cleaning supplies — the agency provided $5 billion of the Provider Relief Fund authorized by the Coronavirus Aid, Relief, and Economic Security (CARES) Act to Medicare-certified long term care facilities for these purchases.

It’s the inclusion of prisons and jails in a larger, national medical framework that will serve as of the first step in protecting the needs of incarcerated people and understanding how their health statuses affect community members. A more holistic understanding of public health that includes the idea that people in society’s shrouded spots are still a part of shared salubrity no matter who they are or what they’ve done, might prevent the competing valuations of life that prevented the best practices for Covid-19 vaccination in prisons in the first place.

Chandra Bozelko is a columnist who was incarcerated for more than six years at the York Correctional Institution in Connecticut. This work was supported by a Diversity Reporting Grant from the National Association of Science Writers.