On June 29, 2018, a federal judge approved a settlement between Massachusetts state prisoners with hepatitis C and the Massachusetts Department of Correction (DOC), which operates the state's prison system.
In 2015, Emilian Paszko and Jeffrey Fowler, living with hepatitis C in Massachusetts prisons, filed Fowler, et al. v. Turco, et al., a class action lawsuit against the DOC for withholding medical treatment. Three years later, the DOC agreed to a settlement that overhauls its protocol for identifying, assessing, and treating people with hepatitis C.
The U.S. Supreme Court has ruled that people in U.S. prisons and jails have a constitutional right to medical care. Withholding treatment can be considered a violation of the Eighth Amendment's prohibition of cruel and unusual punishment. But having a constitutional right to medical care and actually receiving adequate care don't always go hand in hand, as many incarcerated people can attest.
In Massachusetts, for instance, over 1,500 state prisoners have hepatitis C, but, in February 2015, only three were receiving treatment, according to the lawsuit.
That's in part because treatment is so expensive. As reported previously, in 2013 the U.S. Food and Drug Administration (FDA) approved simeprevir (branded as Olysio) and sofosbuvir (branded as Sovaldi), which shorten hepatitis treatment to 12 weeks, eliminate the side effects of previous treatments, and clear the virus in 90% to 95% of people. The American Association for the Study of Liver Diseases recommends treatment for all people with chronic hepatitis C infections, except those with a life expectancy of less than a year.
These direct-acting antivirals (DAAs) cost between 60 and 80 thousand dollars for a 12-week regimen. In August 2017, the FDA approved a new, less expensive drug, Mavyret. Mavyret's price tag -- $26,400 -- is significantly less than the cost of current DAAs. But for many state prisons, it's still an exorbitant cost to add to the already expensive price of keeping a person behind bars.
Related: Hepatitis C Is Common in Prisons, but Treatment Is Rare
Massachusetts, for instance, spends an average of $55,170 per prisoner, and that's without spending money on hepatitis (or other costly) treatment. With over 1,500 people in its state prison system having hepatitis C, even with Mavyret's lower price tag, that's still a nearly $40 million blow to the state's correction budget.
The Centers for Disease Control and Prevention estimates that one in three of the 2.2 million people in U.S. jails and prisons have hepatitis C, a much higher rate than the 1% to 1.5% infected outside prison. But many people do not even know that they have hepatitis C. That's because, while many jails and prisons screen for HIV as part of intake procedures, few automatically do so for hepatitis C.
The settlement starts to change that. Now, all people entering Massachusetts's prisons will be offered hepatitis C testing instead of requiring them to specifically request testing. (Incarcerated persons can choose to opt out of testing.) The settlement requires a streamlined process for evaluating people with hepatitis C and a clear-cut protocol, with defined timeframes and frequent monitoring. By September 2019, the DOC must treat those with the most advanced stages (an estimated 280 people).
After September 2019, the DOC must treat people with moderate or advanced hepatitis by a specific deadline, which might range from three to 12 months. Furthermore, the DOC -- and its contracted health care provider -- can no longer use factors such as a person's imminent release date, alleged misbehavior, or substance use as reasons to exclude him or her from treatment. "The DOC worked closely with plaintiffs' counsel to better address hepatitis C in our inmate population through the use of direct acting anti-viral medications," wrote Jason Dobson, DOC deputy director of communications, in an email to TheBody.
Massachusetts is not the only prison to be hit with a legal challenge to its hepatitis C policies. In Minnesota, where prisons offer the old interferon treatment only if a person displays symptoms of fibrosis, cirrhosis, or liver failure, the International Humanitarian Law Institute filed a lawsuit on behalf of two people with hepatitis C.
In 2015, Pennsylvania prisoner Mumia Abu-Jamal filed suit seeking treatment. Two years later, in January 2017, a federal judge ruled that the Pennsylvania Department of Correction must offer him treatment, a decision that allowed Abu-Jamal to receive (and complete) treatment. However, the judge's decision only pertained to Abu-Jamal and not to the thousands of others with hepatitis in the state's prison system, though prison officials have stated that they plan to treat about 250 of the most seriously ill people.
More recently, in California, where less than 1% of the 17,000 state prisoners with hepatitis C were being treated, prisoners filed a class-action lawsuit against the state prison's health care service and prison officials alleging violations of the Eighth Amendment and the Americans With Disabilities Act. Imprisoned plaintiffs alleged that they were told they were not sick enough or that the drugs were too expensive. Three months later, in May 2018, the governor's budget included an increase of nearly $106 million to the California Correctional Health Care Services to fully implement an expanded treatment program for hepatitis C. Meanwhile, the lawsuit is winding its way through court.
Emilian Paszko, the lead plaintiff against the Massachusetts DOC, died in late 2015 of hepatitis C complications. "He never saw the benefit of the drugs," Joel Thompson, staff attorney with Prisoner Legal Services of Massachusetts and co-counsel on the lawsuit, told TheBody. Fowler, however, was treated before the settlement was finalized; so were two plaintiffs who were added after the initial complaint was filed.
For the remaining 1,500 people living with hepatitis in Massachusetts prisons, the settlement signals an end to uncertainty. "Our clients will have the clarity of knowing where they stand," stated Thompson. Having a protocol that clearly states who will be treated and who will not "eliminates the confusion and anxiety that goes with [having hepatitis C]." Furthermore, he noted that universal testing and frequent testing mean that "no one will fall through the cracks." He said: "We're going to have a lot of prisoners treated and cured. For those who aren't treated, they'll be well-positioned [and aware of their health needs] when they go home."
To taxpayers and naysayers who bristle at the prospect of offering expensive treatment to people in prison, Thompson pointed out that incarcerating people is "a choice that we as a society make." He said: "If you want to incarcerate people for the rate that we do and for the duration that we currently do, you need to confront the costs. If you don't like that cost, figure out a different criminal justice policy, so you can apply those resources somewhere else."