Appeals court upholds rationing of hepatitis C treatment

CINCINNATI — The Kentucky Department of Corrections can deny a life-saving but expensive hepatitis C medication to inmates, a federal appeals court ruled in a split decision. The dissenting judge in last week’s 2-1 ruling at the 6th U.S. Circuit Court of Appeals said the majority’s opinion will condemn hundreds of prisoners to long-term organ damage and suffering, The Courier-Journal reported.

Hepatitis C is the leading cause of liver transplantation and serious liver disease, including cirrhosis and liver cancer, and Kentucky has the highest infection rate in the United States. Newer treatments can cure nearly 100% of patients but cost $13,000 to $32,000. Because they cost so much, the Kentucky Department of Corrections has restricted use of the treatment to inmates with advanced liver scarring, or fibrosis.

The majority found that denying treatment to most of Kentucky’s 1,200 inmates with hepatitis C does not violate the Eighth Amendment ban on cruel and unusual punishment.

Lisa Lamb, a spokeswoman for the Corrections Department, said its policy aligns with the practices of the U.S. Bureau of Prisons, and two courts have now found the department is not violating the constitutional rights of prisoners.

Louisville attorney Greg Belzley, who represents prisoners in the class-action lawsuit, called the decision “horrendous” and said they would ask for a rehearing with the full court or petition the U.S. Supreme Court to hear the case. “Basically the majority … ruled that Kentucky prison officials don’t have to do anything to treat an inmate’s infection except sit around and watch it get worse,” he told the paper in an email.

Belzley said the department doesn’t treat any infected inmates until their liver has already become cirrhotic, and while hepatitis C is curable, cirrhosis is not. He said as of August 2019, the most recently available figures, the department had identified 1,670 prisoners as HCV-positive. Only 159 had received any treatment.

Belzley said it would cost taxpayers less to treat infected inmates in prison than to wait until they are released. Meanwhile, they are likely infect others before finally receiving treatment.

In a sharply worded dissenting opinion, Judge Jane Stranch said Kentucky’s rationing plan “shocks the conscience” and is fundamentally unfair. She noted the Centers for Disease Controls, the Centers for Medicare and Medicaid Services, the Veteran’s Administration and even Kentucky’s own Medicaid system recommend treatment with direct acting antivirals, or DAAs, regardless of the degree of fibrosis.

“Yet according to defendants themselves, they chose not to administer DAAs to all inmates because of the cost of the drugs, a decision that exposed inmates to ongoing suffering and long-term organ damage.”

The majority opinion upheld an earlier decision by U.S. District Judge Gregory F. Van Tatenhove of Lexington, who found the department’s monitoring of inmates with hepatitis C constituted treatment, and the department’s treatment plan was adequate.

Citing the Merriam-Webster definition — “the action of treating a patient or condition medically or surgically” — Stranch wrote in her dissent that “testing how far HCV has advanced in harming an inmate’s body is not treatment.”

The case was first filed on behalf of four inmates who contracted the virus — Brian Woodcock, Keath Bramblett, Ruben Rios Salinas and Jessica Lawrence. While the first two have been cured, Salinas was denied treatment and Lawrence has not received it yet, according to court documents.

The department previously denied treatment to anyone who did not have a clean conduct record for 12 months beforehand, but after the lawsuit was filed it amended the rule to cover only infractions that might compromise treatment.