HCV TREATMENT ACCESS:
MASS INCARCERATION
PHIL WATERS, J.D.
STAFF ATTORNEY
CENTER FOR HEALTH LAW AND POLICY INNOVATION
HARVARD LAW SCHOOL [email protected]
B
ACKGROUND
•
While HCV disproportionately affects
individuals in jails and prisons, many
facilities limit access to treatment
•
Cost continues to be cited as the
primary concern for correctional
facilities
•
Testing and treatment for HCV is varied
based on location
F
EDERAL
B
UREAU OF
P
RISON
G
UIDELINES
•
Screening: voluntary opt-out testing, on request
•
Staging and priority
• Level 1: F3-4/cirrhosis
• Level 2: F2, cormorbid conditions, born 1945-1965 • Level 3: F0-1
•
Treatment qualifications:
• Time remaining to complete
• No sanctions for drug/alcohol/tattooing within 1 year • “No uncontrolled or unstable medical or mental health
conditions”
3
S
TATE
V
ARIATION IN
A
CCESS
L
AWSUITS
: B
ASIS AND
H
ISTORY
•
Estelle v. Gamble: Prisons officials must provide prisoners
with adequate medical care under the Eighth Amendment.
429 US 97, 103 (1976).
• To win a constitutional claim of inadequate care, individuals must show that the prison treated them with “deliberate indifference to serious medical needs”
•
Farmer v. Brennan: A prison official demonstrates
“deliberate indifference” if they recklessly disregard a
substantial risk of harm to the individual. 511 U.S. 825, 836
(1994)
S
UCCESSFUL
C
ASES
• Pennsylvania: In Chimenti, et. al. v. Wetzel, the court found that the PA DOC was deliberately indifferent to
the serious medical needs of individuals with chronic HCV.
• “We conclude that the record contains evidence that patients who have chronic HCV and whose Metavir scores are less than F2 have serious medical needs, as they may suffer from fatigue and other nonhepatic symptoms of their infections and, if not treated with DAAs before their disease progresses, may suffer from liver inflammation, liver fibrosis, liver cancer and liver-related mortality that they would not suffer if they were treated with DAAs while their Metavir scores are in the F0 to F1 range.”1
• “There is also evidence that the DOC's reliance on an inaccurate method of testing for fibrosis could result in the DOC's failing to treat many individuals who suffer from advanced fibrosis and cirrhosis.”1
• Indiana: In Stafford v. Carter, the Court found that IDOC’s HCV treatment policy violated the 8thAmendment,
recently finalized a class-action settlement to implement phased-in universal treatment through 2025. • Accepted DAA treatment of all HCV-positive individuals as the standard of care
• Rejected FBOP guidelines as medical standard
• “Prison staff cannot bide their time and wait for an inmate’s sentence to expire before providing necessary treatments.” (citing Mitchell v. Kallas)2
1. Chimenti v. Wetzel, No. 15-3333, 2018 U.S. Dist. LEXIS 115961 (E.D. Pa. July 12, 2018)
B
AD
P
RECEDENTS
: C
IRCUIT
C
OURTS
•
Seventh Circuit:
• In March 2020, Court of Appeals reversed class certification and overturned injunction against Illinois DOC’ HCV treatment policy • Allowed a modified “wait and see” approach,
priority levels. Cited experts that testified there is likely no significant harm in using priority tables
• “To be sure, the fact that a disease may
progress slowly does not mean that IDOC may refuse to treat it. But IDOC is not refusing to treat inmates with hepatitis C. The 2019
Protocol lists very specific guidelines for
diagnosing and treating inmates with hepatitis C.”1
B
AD
P
RECEDENTS
: C
IRCUIT
C
OURTS
•
Eleventh Circuit:
• In August 2020, Court of Appeals a ruling requiring FDOC to treat all incarcerated individuals with HCV
• Framed the issue as a disagreement as to the standard of medical care
• “Because the plaintiffs here are receiving medical care—and because the adequacy of that care is the subject of genuine, good-faith disagreement between healthcare
professionals—we are hard-pressed to find that the Secretary has acted in so reckless and conscience-shocking a manner as to have
violated the Constitution.”
T
HE
R
ESEARCH
: M
EDICAID
A
CCESS TO
HCV C
URE
• Hepatitis C: The State of Medicaid Access, regularly
updates HCV treatment access research and provides advocates with the tools they need to advance HCV treatment advocacy
• The research evaluates treatment access in all 50
states, Washington, D.C., and Puerto Rico,
• Findings are based on surveys of Medicaid officials,
publicly available documents, and official press or media releases
See state reports at
www.StateofHepC.org
F
UTURE
A
DVOCACY
U
SING THE
ADA
•
Sobriety restrictions remain a persistent barrier
•
The ADA protects individuals recovering from SUD or currently
using when seeking health care services
PHIL WATERS, J.D.
STAFF ATTORNEY
CENTER FOR HEALTH LAW AND POLICY INNOVATION
HARVARD LAW SCHOOL
