by Gregory Dober

There is an old game known as Thimblerig. Most people know it as the shell game. It's when a con man places a small round ball, about the size of a pea, under three shells and quickly shuffles them around. He then asks if anyone wants to place a wager and guess which shell contains the ball. In most cases the con man wins because the game is rigged.

Thimblerig describes the game that the Pennsylvania Department of Corrections (PDOC) is playing with state prisoners relative to hepatitis C (HCV) treatment – but unfortunately this game may cost some prisoners their lives.

On January 28, 2013, Jason E. Runkle, incarcerated at SCI Mercer, brought a class-action suit against the Commonwealth of Pennsylvania, the PDOC and various prison administrators and medical staff. Attorney John F. Mizner filed the case in the U.S. District Court for the Western District of Pennsylvania on behalf of Runkle and a class of similarly-situated state prisoners.

The complaint alleges violations of prisoners' constitutional rights by the PDOC and requests injunctive relief consisting of testing and treatment for HCV without regard to the length of a prisoner's sentence.

In July 2010, Runkle was sentenced to a minimum of eighteen months and a maximum of five years for various drug-related offenses. He received credit for six months at the York County Prison while awaiting sentencing. In September 2010, Runkle was sent to SCI Camp Hill for processing and intake into the state's prison system. A blood screen indicated he had elevated levels of AST, ALT and bilirubin, and a decrease in blood platelets. These results were consistent with a diagnosis of liver disease as well as HCV. One month later Runkle was transferred to SCI Mercer to serve out the remainder of his sentence.

Upon arriving at SCI Mercer he received another blood test and screening for HCV. The results were once again abnormal and consistent with liver disease and HCV. Runkle requested to see a physician to review the test results and discuss treatment options.

Depending on the particular genotype of the virus, HCV treatment can range from 24 to 48 weeks of powerful antiviral medications. A genotype is the genetic makeup of a cell or organism; a virus can have varying genotypes. The genotype of hepatitis C does not change over time and needs to be tested only once.

HCV genotype II or III requires a 24-week regimen of antiviral medications. For genotype I or IV, 48 weeks of antiviral treatment is prescribed. The PDOC's HCV protocol indicates that if a prisoner has a sentence greater then twelve months, he or she should at least be tested to determine the particular virus genotype. If the prisoner is found to have genotype I or IV, the 48-week treatment variety, and has a sentence of eighteen months or less, they will be excluded from HCV treatment.

Attorney Mizner stated in the lawsuit that "The hepatitis C protocol denies to those prisoners with sentences shorter than 12 months and those prisoners with genotype I or IV and sentences shorter than 18 months, the type of individualized treatment normally associated with the provision of adequate medical care."

On November 8, 2010, the staff physician at SCI Mercer indicated to Runkle that he had tested positive for HCV; the doctor also confirmed that Runkle's minimum sentence extended through June 2011. This was still approximately 33 weeks away, and would have allowed enough time for at least the 24-week treatment protocol if his HCV were genotype II or III. However, the doctor did no genotype testing to determine if Runkle was an appropriate candidate for the 24-week treatment regimen.

In lieu of HCV treatment, Runkle was assigned to the Chronic Care Clinic. The Chronic Care Clinic relies on palliative rather than curative care; that is, it is intended to provide comfort, management and monitoring of a medical condition without treatment to cure the condition.

During late 2010 and early 2011, Runkle requested and was denied HCV treatment on several more occasions. Despite filing formal appeals requesting to be genotype screened and treated, the responses always stated that his minimum sentence remaining was less than a year, which made him ineligible for treatment and genotype testing.

During the spring of 2011, Runkle regularly visited the physician and each subsequent blood test indicated abnormal results related to his liver enzymes and blood platelets. Additionally, Runkle started to complain of many of the common physical symptoms of HCV such as right quadrant pain and fatigue. Despite these symptoms he was still refused treatment. Runkle repeatedly appealed the denial of treatment and each time was told that his remaining sentence did not fit the HCV protocol criteria.

As time passed, Runkle was still having complications from HCV but at least could look forward to his release in June 2011. His minimum sentence release date was the result of a decision made at his July 2010 sentencing hearing; the same minimum sentence release date had been used to deny him HCV treatment and genotype screening. The PDOC apparently had no qualms about releasing Runkle while he was still infected with HCV after refusing to treat him.

In July 2011, several days after his minimum sentence release date had passed, Runkle saw the doctor and again complained of right upper quadrant pain. Again, the physician did not order treatment or genotype screening for Runkle's condition. Instead, he was returned to the Chronic Care Clinic.

Runkle received more bad news in October 2011 when the Board of Probation and Parole denied him parole and ordered him to serve out his maximum sentence. His new release date was now December 28, 2014 – approximately 164 weeks away. While the parole news was bad, it seemed that the math was now in Runkle's favor to receive HCV treatment and genotype screening.

However, like the old game of Thimblerig, the PDOC's HCV protocol is difficult to win because it's rigged. During the spring of 2012, Runkle was again denied HCV treatment and genotyping despite having to serve an additional three years in prison. On June 4, 2012, he received a response to one of his grievances from a Registered Nurse Supervisor.

The response stated, "I have reviewed your record and discussed your case with the infection control nurse in reference to DOC policy for the Hepatitis C treatment protocol. Given that you are past your minimum [sentence] and eligible for Parole, you do not have the required 12-18 months of time on your sentence for treatment completion. You are followed annually, per policy, for your Hepatitis C evaluation and your next evaluation in August, 2012."

Because Runkle was past his minimum sentence and was parole eligible, the PDOC continued to deny him treatment and genotype testing though he had more than 2½ years left to serve. Considering that the parole board had rejected his parole in October 2011 and recommended that he serve his maximum sentence, it appeared highly unlikely that Runkle would be paroled before his sentence expiration date in December 2014. Regardless, he was still considered ineligible for HCV treatment per PDOC policy.

Hypothetically, state prison officials can deny HCV treatment indefinitely once a prisoner passes his or her minimum sentence and is eligible for parole. Unfortunately, being eligible for a parole hearing doesn't necessary mean that parole will be granted; however, for the purposes of the PDOC's HCV protocol, it still equates to a denial of HCV treatment and genotyping.

Through the rest of 2012, Runkle continued to request treatment and was denied. Each response he received was the same: "You are past your minimum time and eligible for parole and do not have the required 12-18 months of time on your sentence for treatment completion." In an August 2012 response, the Chief Grievance Officer offered Runkle a deal if he deferred his parole until treatment was completed. The response indicated that if he didn't take the deal, then HCV treatment would be denied.

Thus, the "solution" that the PDOC offered was for Runkle to give up the possibility of parole, and thus his freedom, in exchange for the privilege of receiving adequate medical care.

The hypocrisy of the PDOC's HCV treatment policy is reflected in statements made by prison officials when the HCV treatment program was first initiated in 2000. Correctional Newsfront, a newsletter for the Pennsylvania Department of Corrections, proudly quoted a speech that former Corrections Secretary Jeffrey A. Beard gave at the American Correctional Association's conference held in Anaheim, California in 2002. In an excerpt from the speech, Beard proudly proclaimed:

"Some may wonder why we have taken such an aggressive approach [to HCV treatment]. There are a number of reasons. First, we must remember that 90% of our prisoners will return home someday; 600,000 nationwide, 11,000 in Pennsylvania each year. They return to our communities, our neighborhoods. Hepatitis represents a real public health threat especially since we know that about 23% of our prison population has hepatitis C alone.... Prevention, education and treatment can all reduce the potential impact on the community. Second, we have an obligation to our staff to do what we can to protect them from this disease.... Third, if we deal aggressively today with the problem, we will see less complications, less deaths, and have less costs in the future.... We need to also remember that while they are incarcerated, we have a captive audience. There is no other one place with such a concentration of hepatitis cases. So it is really important that we use this opportunity to educate and prevent the further spread of this disease."

He further noted that "Today we can treat prisoners for a cost of about $6,000 to $12,000 each. If we don't treat them today, most will end up having complications. The medical treatment of those complications can cost anywhere from $50,000 to $250,000 per person or more.... Last year [2001] seventeen percent of our prisoner deaths were a direct result of hepatitis C complications.... And in addition to preventing deaths from this disease, we also can work to help prevent the spread of the disease."

Thus, Beard acknowledged the public health danger that unsurprisingly results when prisoners with HCV are released without treatment. He recognized that prisoners are a captive population, that substantial numbers are infected with HCV and that deaths resulting from untreated HCV is a stark reality.

However, by 2013 those acknowledgments had lost meaning for the hundreds of prisoners afflicted with HCV and the thousands of Pennsylvania citizens at risk when untreated HCV-infected prisoners are released from the state's prison system.

While the PDOC is reducing in-prison healthcare costs by denying treatment to prisoners with HCV based on the department's current treatment protocol, a ten-fold increase in medical expenses for untreated prisoners who are released will be passed along to other government agencies and ultimately the taxpaying public.

Ironically, the Commonwealth of Pennsylvania swiftly entered into the Tobacco Master Settlement Agreement in the late 1990s, demanding that tobacco companies be held responsible for health-related problems related to tobacco use and held liable when the costs for those problems were shouldered by the general public.

Yet the PDOC is similarly endangering public health by arbitrarily refusing to treat prisoners with hepatitis C, with the costs of untreated HCV being shifted to the public. Allowing the PDOC to continue enforcing its HCV protocol will result in a shell game that has no winners.

As of June 2013, the Commonwealth and other defendants had filed motions to dismiss Runkle's lawsuit challenging the PDOC's HCV treatment protocol. The motions to dismiss remain pending, and the district court has not yet granted class-action status in the case. See: Runkle v. Commonwealth of Pennsylvania, U.S.D.C. (W.D. Penn.), Case No. 2:13-cv-00137-MPK.

Greg Dober is a freelance writer in healthcare ethics. He obtained his Master of Arts in Bioethics and Health Policy from Loyola University of Chicago in Illinois, is a member of the American Society of Bioethics and Humanity (ASBH), and has been a contributing writer for PLN since 2007.

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