Lawsuit: By restricting life-saving Hepatitis treatments, Colorado prisons putting taxpayers on hook

DENVER – Eighteen inmates in Colorado prisons died over a three-year period because of the state’s “cruel and arbitrary” system for treating Hepatitis C infections, which is leaving thousands of inmates without access to treatments, according to a federal class action lawsuit filed Wednesday by the ACLU of Colorado against the state Department of Corrections.

As of last December, there were 2,280 prisoners in Colorado who had been diagnosed with some degree of the virus, which amounts to about one-ninth of the state’s total prison population. Hepatitis C is the most-prevalent blood-borne infectious virus in the U.S.

The ACLU’s federal suit, whose class has yet to be certified by a U.S. District Court of Colorado judge, claims that “arbitrary” limits on which prisoners can receive new treatments—which can cure the virus in significantly less time than treatments allowed just a couple of years ago—are causing thousands of prisoners to suffer and even die.

In Colorado prisons, the DOC determines whether prisoners are eligible for Hepatitis C treatments by first ordering them to undergo a blood test that scores the level that the prisoner’s liver has deteriorated—a primary side-effect of Hepatitis C.

If the prisoner’s score is above a certain number, they become eligible to be considered for treatment. But they first have to go through an alcohol and drug treatment class before they are put on a list of prisoners with the potential to be treated.

But some prisons don’t offer such treatment classes, and those that do have wait lists of around 1 ½ years, according to the ACLU’s suit. Should a prisoner get into a class, the classes take a year to complete.

The suit says that some prisoners, thus, may have to wait for 2 ½ years to get onto the list for possible treatment, and possibly longer if they have to request a facility transfer first.

And even still, if a prisoner is determined to have a “high-risk behavior” or commits any infractions involving drugs, alcohol or sex, they must wait another year before they are considered to enter the alcohol and drug treatment program—effectively restarting their timeline, according to the ACLU.

But once a prisoner has completed all the prerequisites and made it onto the list of treatment-eligible prisoners, a committee meets four times a year to determine which prisoners will be treated with the new drugs.

The ACLU says the number of prisoners is capped at 30 per year, however, though it points in the suit to emails from DOC officials in which the officials say that 735 prisoners were candidates for treatment.

The suit says that DOC has announced plans for the 2017-18 fiscal year to up the number of treatments to “as many as 70 prisoners.”

“CDOC is deliberately choosing to allow additional CDOC prisoners to die from untreated [Hepatitis C],” the suit says.

The lawsuit cites emails from last year from Susan Tiona, the DOC’s chief medical officer, and Renae Jordan, the DOC’s director of clinical and correctional services, in which the two say that the new treatments and the number of people treated each year could eliminate deaths by 2026 and all Hepatitis C complications in state prisons by 2035.

The ACLU claims that won’t be the case, however, as even treating 70 prisoners per year would take 10 years to complete treatment for the current number of eligible prisoners—not even accounting for the prisoners bound to enter the prison system who already have the virus or might contract it while imprisoned.

“Defendants have promulgated, implemented, and enforced policies and practices that are deliberately designed, unjustifiably, to delay and deny necessary medical treatment to all but a small fraction of the prisoners with chronic HCV infections,” the suit says.

There are four plaintiffs in the case, all of whom have some stage of liver deterioration due to Hepatitis C. Most are serving lengthy sentences and have been Hepatitis C-positive for more than a decade.

All are eligible, per the blood-test requirements, for the new treatments, but have not received them for an array of reasons. The ACLU says in several of their cases, the prisoners have had to jump through hoops to try and get on the list for treatment, but have been continually denied and since have exhausted their appeal and grievance remedies.

In addition to Tiona and Jordan, Rich Raemisch, the DOC’s executive director, is also named as a defendant in the lawsuit.

The ACLU seeks to certify the class on behalf of the already-listed inmates, and all current and future DOC inmates diagnosed either in the past or future with Hepatitis C, who have at least 24 weeks left of their sentence and who are expected to live for more than a year.

Those already receiving the new treatments, which are FDA-approved and considered a community standard of care by medical associations, wouldn’t be eligible for the class.

The ACLU and lawyers are seeking an injunction that requires DOC to adopt policies and practices “that adequately provide” for inmates with Hepatitis C, and claim the prisoners’ Eighth Amendment rights to be protected from cruel and unusual punishment are being violated.

The suit also asks a judge to require the DOC to develop and implement a new strategy to come up with a plan within 3 months of a judgment to give prisoners more access to the newly-approved community standard drugs. The plaintiffs are also asking for attorneys’ fees and other expenses associated with the suit, should a judge rule in their favor.

The spokesman for the DOC, Mark Fairbairn, issued a statement to Denver7 saying the department continues to implement the new drug treatments, and that of nearly 80 prisoners treated by DOC since July 2015 with the new treatments, only one of them was not cured of Hepatitis C:

“The treatment for Hepatitis C virus (HCV) has progressed significantly in the last several years.  The Colorado Department of Corrections has incorporated these treatment regimens into our clinical practice.  Although these new pharmaceuticals are groundbreaking and effective, we have developed and implemented policy to assess treatment needs alongside appropriated resources.  The Colorado Department of Corrections has successfully treated nearly 80 offenders since July of 2015 and eradicated the hepatitis c virus in all but one of those cases.”

The ACLU of Colorado also sued the state Department of Health Care Policy and Financing’s executive director last year to increase access to the same new drugs for Medicaid recipients in Colorado.

A new report published earlier this year also said new Hepatitis C cases jumped from 379 in 2011 to 729 in 2015. The report attributed many of the new infections to intravenous drug users sharing needles.

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