by Kevin W. Bliss

In December 2018, the U.S. District Court for South Carolina granted class-action status in a lawsuit filed against the Department of Corrections (DOC) by state prisoners claiming they received inadequate medical care due to a lack of testing during intake to check if they had hepatitis C (HCV). The complaint also alleged that prisoners who tested positive for the disease did not receive appropriate treatment.

Untreated HCV attacks the liver and increases the risk of kidney, Parkinson’s and heart diseases, as well as diabetes, B cell lymphoma and other forms of cancer. Other more benign, yet unpleasant symptoms include arthritis, chronic depression and fatigue. In 2013, HCV was a factor in more deaths than 60 other infections combined, including HIV and tuberculosis.

When people with HCV are released from prison they can spread the disease through intravenous drug use or sexual contact. Diagnoses of HCV soared more than 200 percent in 30 states from 2010-2014 according to Yale University researchers, who noted that due to the high incidence of HCV among prisoners, “failure to scale up treatment in prisons dooms any effort to eliminate hepatitis C in America.”

Represented by attorneys Christopher Bryant with Yarborough Applegate LLC and Reuben Guttman with Guttman, Buschner & Brooks PLLC, the class-action suit against the DOC was originally filed by prisoners Russell Geissler, Bernard Bagley and Willie James. They argued the DOC had violated their Eighth Amendment rights by failing to provide adequate HCV treatment.

Based on court rulings establishing prisoners’ right to medical care, due to their inability to obtain it elsewhere, the U.S. Supreme Court has effectively made prisoners the only group with a constitutional right to receive healthcare, noted Robert Katz, a professor at Indiana University’s Robert H. McKinney School of Law.

The Centers for Disease Control (CDC) recommends testing all people at risk for HCV, including those born between 1945 and 1965, those who received a blood transfusion before 1992, and prisoners. The CDC has further promulgated a medical standard of care that includes treatment for people with chronic HCV unless there is a short life expectancy even with treatment.

According to its written policy, the South Carolina DOC does not test for HCV “except in certain limited circumstances,” none of which correspond to the CDC’s recommended testing protocol. The DOC currently spends about $1 million of its $70 million annual healthcare budget on HCV testing and treatment. 

The FDA approved direct-acting antiviral (DAA) drugs for treatment of HCV in 2013. [See: PLN, July 2014, p.20]. The medication has few or no side effects and is 90-95 percent effective in curing chronic HCV after a 12-week treatment course, at which point the disease is no longer transmissible. But a DAA regimen costs over $20,000, so a change in South Carolina’s HCV testing and treatment procedures would require a substantial increase in the DOC’s budget.

The lawsuit accuses DOC director Bryan P. Stirling of deliberate indifference, alleging that DAA treatment would not only improve prisoners’ quality of life and reduce their long-term healthcare costs but also would prevent them from transmitting the disease upon release.

Since the suit was filed, two DOC physicians – Dr. James Grubbs and Dr. Ansal Shah – have given sworn affidavits in support of the prisoners’ claims; as a result, the plaintiffs have asked the court to dismiss them as defendants.

In a proposed partial settlement, the DOC said it would agree to provide “opt-out” HCV testing to all incoming prisoners as well as those currently incarcerated with more than 24 months left to serve. The district court has granted preliminary approval, but final approval by the court remains pending and the partial settlement does not affect the rest of the litigation. See: Geissler v. Sterling, U.S.D.C. (D. SC), Case No. 4:17-cv-01746-MBS.

Another lawsuit over HCV treatment for prisoners, against the Colorado DOC, settled in September 2018. Filed by the state chapter of the ACLU, with pro bono assistance from attorneys Christopher Beall, Neal Cohen and Dana Katz with the Fox Rothschild law firm, the case was granted class-action status to secure timely treatment for HCV-positive prisoners. 

Colorado’s prison population is around 20,200, of which 2,280 were estimated to have HCV – just above 11 percent of the population. The rate in the general, non-incarcerated population is less than one percent, based on 2013 data. HCV has been the primary cause of death among Colorado prisoners for many years despite treatment breakthroughs such as DAAs. [See: PLN, July 2017, p.1].

Before receiving treatment, prisoners were required to complete months-long drug and alcohol abuse classes as well as therapeutic community programs. Their liver-enzyme numbers also had to reach near-critical levels. This meant it could take years before any treatment began. The DOC announced it would provide HCV treatment to just 70 prisoners in its 2017-18 fiscal year – a rate that would take over 32 years to treat all state prisoners with HCV.

As a result of the litigation, the Colorado DOC agreed to spend $41 million over the next two years to treat all prisoners suffering from HCV. Prison officials will no longer require them to attend prerequisite programs before receiving treatment, and will submit quarterly reports to class counsel regarding the treatment regimens and progress. 

Additionally, the DOC will pay $175,000 in attorney’s fees to the ACLU Foundation. Following the settlement, the case was administratively closed in April 2019. See: Aragon v. Raemisch, U.S.D.C. (D. Colo.), Case No. 1:17-cv-01744-RBJ. 

Class-action lawsuits over HCV treatment have also been filed in Alabama, Idaho, Indiana, Missouri, North Carolina, Vermont and Tennessee. In Missouri, the class certification was upheld by the Eighth Circuit in December 2018. [See: PLN, April 2019, p.22]. Prisoner advocates suing Massachusetts, Minnesota and Pennsylvania have reached settlements, the latter modeled after the one in Colorado, according to attorney David Rudovsky. [See: PLN, Feb. 2019, p.16].

“We thought everybody ought to be treated and we were willing to go to trial on that issue,” he said. “What we agreed to was to give the state some time [to treat everyone], so that’s how we resolved our case.”

In U.S. District Court for the Northern District of Florida, Judge Mark Walker issued a temporary injunction in November 2017 that prevents the state’s DOC from denying prisoners needed HCV treatment, saying he “will not tolerate further foot-dragging.” The ruling initially applied to around 7,000 prisoners. [See: PLN, Dec. 2017, p.24].

Randall Berg, Jr., president emeritus of the Florida Justice Institute, served as class counsel in the suit – which was one of the first to establish a legal precedent for HCV testing and treatment for prisoners. He called the court’s ruling “a big win.” [Ed. Note: See this issue’s cover story].

On April 18, 2019, Judge Walker expanded the number of Florida state prisoners eligible for HCV treatment to include those in the early stages of the disease. The DOC “can no longer use resource limitations and implementation difficulties as an excuse to delay treatment,” he wrote. In response, the state appealed his order, as well as the class certification, to the Eleventh Circuit. The Florida legislature has approved $50 million to provide HCV treatment to prisoners in the budget for fiscal year 2019-2020. See: Hoffer v. Jones, U.S.D.C. (N.D. Fla.), Case No. 4:17-cv-00214-MW-CAS.

Some states are not waiting for lawsuits before stepping up HCV treatment in their prison systems. Michigan and New Mexico have voluntarily started DAA treatment for prisoners. In 2018, California lawmakers budgeted $105.8 million to treat some 22,000 prisoners infected with HCV after a lawsuit was filed. [See: PLN, April 2018, p.28].

For other states that have not yet taken action, the main sticking point is the cost – especially for DAA drugs. A state DOC has no legal authority to access medication discounts provided to the federal Medicaid program and the Veterans Health Administration. But according to Dr. Anne Spaulding with Emory University in Atlanta, an infectious disease and prison health care specialist, the U.S. Department of Health and Human Services could allow states to use the so-called nominal pricing mechanism available to federal medical systems by classifying prisons as “safety net” healthcare providers. 

“Prisons are an under-tapped market for [drug] manufacturers,” she said. “At lower prices, more medication would be available for persons in prison, who are at highest risk for transmitting [HCV] to the broader community once released. Nominal pricing is a win-win situation for both pharmaceutical companies and incarcerated patients.”

Spaulding estimated the cost of full DAA treatment would drop to $2,000 to $4,000 per patient. “We would love to get a state to try to go and get that price,” she stated. 

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Additional sources: thestate.com, prnewswire.com, aclu-co.org, foxrothschild.com, westword.com, usnews.com, tampabay.com

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