We explain what the new law accomplishes, how the FCC can — and should — enforce it, and why the fight for phone justice is not over.
by Wanda Bertram,
January 19, 2023
Earlier this month, President Biden signed the Martha Wright-Reed Just and Reasonable Communications Act of 2022, a bill that we and other advocates for prison phone justice have been supporting for years. Below, we explain what the new law accomplishes and what comes next. While the fight for phone justice is far from over, the bill empowers the Federal Communications Commission to take major steps to bring down communication costs for incarcerated people and their families — and the FCC has indicated that it plans to do so soon.
What does the new law do?
The Martha Wright-Reed Act accomplishes two main things: It clarifies the FCC’s authority to regulate in-state calls placed from correctional facilities, as well as clarifying the agency’s authority to regulate video calls.
For context: The FCC has successfully imposed caps on rates for out-of-state calls from prisons and jails, but not in-state calls. After the agency created regulations in 2015 that lowered the cost of both in-state and out-of-state calls, telecom corporations sued the regulator, and a federal court ultimately ruled that the FCC exceeded its legal authority in capping in-state calls. Since then, the FCC has made no attempt to cap in-state phone rates.
Most incarcerated people today who call loved ones in the same state are likely charged rates similar to out-of-state rates (or just charged the out-of-state rate), as we explain in our recent report State of Phone Justice 2022. But some are charged much higher rates. The Martha Wright-Reed Act will allow the FCC to bring relief to this minority of people still paying higher in-state rates, and protect all people in jail and their families from future attempts by the telecom industry to block regulation.
The Act also clarifies the FCC’s jurisdiction over video calling costs. We and others have long argued to the FCC — over a flood of misinformation from prison telecom companies — that the agency has the authority to regulate the exorbitant cost of video calls behind bars. But the agency has not taken action so far.
Video calls are especially important to regulate, because the companies rapidly pivoted to this technology when the FCC began to restrict what could be charged for phone calls. As a result, video calling rates are much higher than phone rates today. In a four-state survey for State of Phone Justice 2022, we found that families of people in prisons and jails are paying as much as $8 to make a 20-minute video call, for a much lower-quality version of the technology that most people today are able to use for free. Even worse, jails and companies often use video technology as a pretext for eliminating or curtailing in-person family visits, as we exposed in our 2015 report Screening Out Family Time. The new law empowers the FCC to cap the amount that companies can charge for video calls, which will make these harmful contracts less attractive to jails.
When will the law be implemented, and how?
While we don’t know exactly when the FCC will take action to implement the Martha Wright-Reed Act, the law requires the FCC to promulgate regulations “not earlier than 18 months and not later than 24 months after the date of enactment of this Act” — in other words, sometime in the latter half of 2024. In a press release, FCC Chairwoman Jessica Rosenworcel committed to “expeditiously move new rules forward” in light of the bill’s passage.
The FCC already has all the data it needs to begin setting “just and reasonable rates” as soon as the law allows. In 2021, the agency collected rate data from every phone company serving prisons and jails. That data is still current enough for the FCC to use it to set new rate caps that apply to in-state as well as out-of-state calls. (We offer a few more recommendations to the FCC in State of Phone Justice 2022.) Additionally, while data about video calling rates is spotty and hard to come by, there is still plenty of information already in the record that the FCC can use to put initial price caps in place. In fact, there is precedent for doing so: When the agency took steps to rein in the cost of phone calls in 2015, it relied on similarly incomplete data to set initial rates and then revised those rates as it gathered more information. The agency should replicate that successful process now to provide the quickest relief possible to incarcerated people and their families. As the agency gathers more data, it can and should take more fine-tuned action to rein in exorbitant video calling rates.
Is the fight for phone justice over?
In a word: No. The cost of phone and video calls in almost all jails and many state prisons is still way too high, and even when the FCC implements the new law, there is no guarantee that the agency will set caps as low as it should.
One piece of important good news: The phone rate caps that the FCC has set so far (and will set going forward) don’t preempt states that want to pass laws setting even tighter caps. Illinois, for example, capped phone rates from prisons at 7¢ per minute for prisons, and New Jersey capped rates from prisons and jails at 11¢ per minute.
Rather than wait on FCC action, state legislatures should act now to bring down phone and video calling rates to a few cents a minute, or follow the example of California and Connecticut by just making calls free.
In the meantime, even as voice and video calling regulations become stronger, the corporations that dominate the industry are expanding telecom exploitation. Companies are working hard to evade regulation by growing the number of “services” they offer to prisons and jails. People desperate to stay in touch with their incarcerated parents, kids, and other loved ones as much as possible are being squeezed by companies for electronic messaging as well as phone calls and video, and stricter policies around mail and in-person visits are pushing them towards these more convenient, but also more expensive, options. State legislators and regulators should act to make sure that telecom companies are not able to simply replace one exploitative service with another.
The Martha Wright-Reed Act is an important step forward in the fight for prison and jail phone justice, but it doesn’t guarantee effective action at the FCC; nor does it spell the end of this movement. Prisons and jails are still charging exorbitant rates for phone calls, while implementing many other “services” that fleece poor families desperate to stay in touch.
The FCC must act swiftly and set bold caps on both phone and video calls, to ensure that families never again pay hundreds of dollars a month to stay connected to a single loved one. State and municipal governments, meanwhile, should not rest on their laurels. If anything, policymakers, regulators and legislators should recommit themselves to the fight against these exploitative companies. After all, at a time when the price of a phone call outside the walls of a prison or jail is approaching zero, you can’t help but ask yourself, “why are incarcerated people and their families being charged for calls at all?”
For more information on the current state of the prison and jail telecom industry, see our recent report State of Phone Justice 2022: The problem, the progress, and what’s next.
Medicare expands enrollment periods for people released from prison after January 1, 2023, but offers no relief for people who have been paying premiums for zero Medicare benefits while incarcerated, nor for those released before 2023 who signed up late and are stuck paying jacked-up premiums for the rest of their life.
by Emily Widra,
January 3, 2023
As the prison population in the United States gets older, more and more incarcerated people have faced an expensive and unenviable choice when it comes to Medicare: pay for coverage you couldn’t use or afford, or pay increasingly higher premiums for the rest of your life once you were released. People incarcerated when they initially become eligible for Medicare — the national health insurance program for people 65 and older and some younger people with certain disability statuses1 — were expected to enroll and pay monthly premiums without access to any Medicare benefits or coverage. This rule has changed, but formerly incarcerated people released from prison prior to 2023 are left out of this reform and are expected to keep paying penalty fees for not signing up for Part B before release.
While the change marks an important shift in Medicare policy, it does nothing to alleviate the financial stress placed on formerly incarcerated people who are already being charged higher premiums. As one woman whose husband has been struggling with the implications of this unfair policy for years recently told us:
“My husband turned 65 while incarcerated with a long sentence. He signed up as required for Medicare Part A but when he signed up as required for Medicare Part B, he learned he was going to be charged a premium of $135 per month, even while incarcerated and earning just $20 per month. He disenrolled from Part B due to lack of funds. When he was released years later and tried to re-enroll in Part B, he was charged a penalty that would raise his premiums for the rest of his life – by about $50 per month – because he did not enroll at age 65. The penalty is waived for people who were covered by another group health insurance plan, but apparently, prison medical services don’t count.”
This past November, the Centers for Medicare and Medicaid (CMS) fixed this policy problem — effective January 1, 2023 — to create a Special Enrollment Period for recently released, formerly incarcerated people. The creation of a Special Enrollment Period allows formerly incarcerated people to enroll in Medicare in the 12 months following their release without facing any financial penalties for late enrollment. This is undoubtedly a good change, but it is not retroactive: as written, this policy only applies to people released from prison after January 1, 2023.
Because the letter writer’s husband was released a few years prior to this policy change, he will likely be stuck paying surcharged monthly premiums for his Medicare Part B coverage for the rest of his life. He is one of thousands of individuals released over the years who have found themselves, without warning, charged Medicare premium penalties in perpetuity because they didn’t sign up for a benefit they could neither use nor afford while incarcerated. For advocates and policymakers looking for an impactful way to reduce the collateral consequences of conviction and incarceration, particularly those that impact vulnerable populations like the elderly and disabled, this briefing provides the details you need to know to take action.
Medicare policies prior to the rule change
Medicare Part A is health insurance that covers hospitalizations and usually has no monthly premiums. Medicare Part B covers non-hospital medical care and requires beneficiaries to pay a monthly premium. The lowest monthly premium changes annually: in 2022, the lowest Part B premium was $170.10 per month and in 2023, the lowest Part B premium will be $164.90 per month. For most Medicare beneficiaries, the Part B premium is paid out of their Social Security payments.
Incarcerated people have historically been expected to enroll in Medicare Part A and Part B when they become eligible, usually when they turn 65 years old. This means that incarcerated people over 65 were expected to cover their monthly Part B premiums even though Medicare does not provide coverage for any healthcare services provided in prison2 and Social Security payments are suspended for the duration of their imprisonment. How and why the federal government expected incarcerated people to pay for Medicare that provides no benefits in prison — while withholding the usual means of paying for it (Social Security) — defied all logic. The penalties charged in perpetuity to people who enrolled late because of these policies are a further irrational injustice.
Additional penalties for the incarcerated and formerly incarcerated prior to the rule change
Most people in prison can not afford to pay the monthly premiums for Part B coverage while incarcerated. In the case of our letter writer, her husband was expected to pay $130 per month for Medicare Part B despite his only income being the $20 per month he made working in prison. This was likely the case for most incarcerated people. In our 2017 survey of prison wages, we found that the average wages for an incarcerated person ranges from $0.14 to $1.41 per hour, leaving people in prison with no way to make enough money to pay monthly Medicare premiums.
However, not enrolling in Medicare Part B when first eligible had significant financial consequences for incarcerated people: For every 12 months that someone was eligible for Part B coverage but was not enrolled, their future monthly premiums increased by 10%. Someone released in 2022 who enrolled late in Medicare Part B at age 67 is expected to pay a minimum of approximately $204.10 every month,3 a surcharge of 20% on top of the minimum Part B premium of $170.10.4
When people eligible for Medicare are returning to their communities, medical care needs to be accessible and affordable, but if they haven’t been able to afford monthly premiums during their incarceration, the monthly premiums after their release — and for the rest of their lives — will be even higher. This is no way to set already-vulnerable people up for success during reentry.
New Medicare rules for formerly incarcerated people
For people released from prison after January 1, 2023, there are new Medicare enrollment rules that create a 12-month Special Enrollment Period during which recently released people can enroll in Medicare Part A and Part B without any financial penalties for late enrollment (known as “late enrollment penalties” or “LEPs”) due to incarceration. While we applaud this policy change, we are left wondering about the tens of thousands of people released from prison before January 1, 2023. The Centers for Medicare and Medicaid Services (CMS) said that it “does not have the authority” to waive LEPs paid in the past or currently being paid by formerly incarcerated people, because “LEPs are governed by statute.”5
It is unreasonable to expect incarcerated people to be able to pay premiums while incarcerated or to afford surcharged monthly payments after their release, and the regulation changes reflect some understanding of this fact. The next step needed is to apply this same understanding to all formerly incarcerated people, not just those released after 2022. Members of Congress and advocates, take note!
Reforms should cover all people released from prison
The failure to apply these changes to people released from prison before January 1, 2023 inflicts real and lasting financial burdens — and health risks — on them and their families. The man whose wife wrote to us was expected to pay at least6 $1,600 a year in Medicare Part B premiums while earning just $240 per year — for benefits he could not even access while he was incarcerated. The alternative — not enrolling until release, and then paying a permanent late enrollment penalty — is no better. If he had been released in January 2022 at age 70 and immediately re-enrolled after disenrolling from Part B at 65, he would have been expected to pay at least7 $2,970 in premiums (including a penalty of a 50% surcharge each month) every year for the rest of his life. Meanwhile, a low-income person who was never incarcerated during their Medicare-eligible years and never disenrolled from Part B would be paying less than $1,980 per year for the same level of coverage. Formerly incarcerated people who were released prior to 2023 should not be forced to pay significantly higher monthly premiums simply because of their release date: this is not only unfair, but counterproductive when it comes to supporting low-income older adults and their reentry success. Congress should take immediate action to make these common-sense changes retroactive.