Do jail and prison authorities have the right to deny prisoners life-saving medical care simply because of the price tag? People imprisoned in Pennsylvania, Massachusetts and Minnesota are heading to court to find out, with suits focused on access to expensive treatment that can cure hepatitis C. Although prisoner's access to HIV screening and treatment has expanded, hepatitis C treatment remains extremely rare despite high rates of infection among prisoners, many of whom may also be living with HIV.
In early August, attorneys for 61-year-old political prisoner Mumia Abu-Jamal, incarcerated in Pennsylvania, filed a lawsuit challenging the prison authorities' denial of medical care, including treatment for hepatitis C.
In January 2012, Abu-Jamal, who has diabetes, tested positive for the hepatitis C antibody but received no follow-up care. In August 2014, he told medical staff that he was experiencing itching over his entire body. No testing was done to determine his viral load or the possibility that the rash, which was spreading, might be a manifestation of an active hepatitis C infection. The following year, the rash became infected and lesions began to appear. Medical staff noted in his records that these lesions were "too numerous to count." His lower extremities became swollen, his skin took on a dark, scaly appearance and, by February 2015, the rash covered 70% of his body.
On March 30th, Abu-Jamal went into diabetic shock, lost consciousness and was rushed to an outside hospital. He was returned to the prison two days later. In May 2015, Abu-Jamal was again taken to an outside hospital, but was not tested for hepatitis C viral load or genotype. Instead, the discharge report advised the Department of Corrections to order a medical workup since Abu-Jamal might be a suitable candidate for HCV treatment.
It was two more months before a prison doctor told Abu-Jamal that a blood test revealed that he has active hepatitis C. Abu-Jamal was also informed that the Pennsylvania Department of Corrections currently has no protocol for treating hepatitis C. Abu-Jamal's attorney, Bret Grote, is seeking a preliminary injunction ordering tests and treatment because, without them, Abu-Jamal will suffer irreparable damage. In the meantime, supporters are mounting a call-in campaign demanding hepatitis C treatment for Abu-Jamal and others in the Pennsylvania prison system.
Hepatitis C: Serious but Curable
Hepatitis C is a liver disease caused by the hepatitis C virus (HCV) that can cause lasting health damage and death. Although 15% to 25% of people infected have immune systems that can clear the virus, the other 75% to 85% become chronically infected, meaning that the virus evades their immune systems' response. According to the Centers for Disease Control and Prevention (CDC), 60% to 70% of those affected will develop chronic liver disease, 5% to 20% will develop cirrhosis and 1% to 5% will die from liver cancer or cirrhosis caused by HCV. However, unless tested, people may not even know that they are infected; symptoms often take 20 to 30 years to appear.
About three out of every 10 people with HIV are also coinfected with hepatitis C. "HIV and HCV share many characteristics," explains Alan Franciscus, executive director of the Hepatitis C Support Project and author of A Guide to HIV/HCV Coinfection "Both are RNA viruses and both have similar blood-to-blood transmission routes. Because both HIV and HCV are transmitted through the sharing of contaminated needles, many injection drug users acquire both viruses; in some groups of injection drug users, the rate of coinfection may be as high as 90%."
Until recently, HCV treatment consisted of injection-based interferon, which has side effects including flu-like symptoms, depression and chronic fatigue. It also has a low success rate. But in late 2013, the U.S. Food and Drug Administration approved simeprevir (branded as Olysio) and sofosbuvir (branded as Sovaldi), which shorten treatment to 12 weeks, eliminate side effects 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. But drug companies charge between sixty- to eighty-thousand dollars for a 12-week regimen.
The CDC 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 of prison. The Eighth Amendment has been found to give people in jails and prisons a constitutional right to medical care. However, as Abu-Jamal's experience demonstrates, even if medical care is constitutionally guaranteed, it is not always adequate.
For many years, people with HIV and their advocates fought to increase HIV testing and treatment for prisoners. Over time, access to testing and treatment has improved, though problems remain. For example, very few jails or prisons make condoms available as an HIV-prevention tool.
Although U.S. prisons now offer routine screenings for HIV, they do not for hepatitis C, meaning that people may unknowingly live with, spread or be exposed to the virus for years. Similar to their historical neglect of HIV treatment, prison officials often balk at treating hepatitis C. Given that the new HCV drugs cost six to eight times more than interferon, the likelihood of prisoners receiving effective treatment has become even more elusive.
In Oklahoma, which has the nation's highest female incarceration rate, Gillian (not her real name) was excited to learn that prisons were administering the new HCV treatment. Her hopes were dashed, however, when the prison's doctor told her that she was ineligible. "I'm not surprised because the new treatment is very expensive," she wrote. In California, only 146 (less than 1%) of the 17,405 state prisoners diagnosed with hepatitis C are receiving the new treatment.
Abu-Jamal is not the only person heading to court to gain access to medical care. In May 2015, the International Humanitarian Law Institute filed suit on behalf of two men incarcerated in Minnesota, claiming that the prison's denial of HCV treatment is "in deliberate indifference to their serious medical needs." Minnesota prisons offer routine screenings for HIV, but not for HCV. Furthermore, its prisons offer no hepatitis C treatment until a person displays symptoms of fibrosis, cirrhosis or liver failure. Once symptoms manifest, the only treatment available is the 48-week, less-effective interferon-based regimen. The suit is seeking class-action status, which could affect the approximately 1,350 prisoners already diagnosed with HCV, as well as those who are infected but were never tested or were never told the results of their tests.
In June 2015, Prisoners' Legal Services filed a lawsuit on behalf of two Massachusetts prisoners who have been denied treatment. Of the state's more than 1500 prisoners with hepatitis C, only three are currently receiving treatment. That same month, three Pennsylvania prisoners filed a class-action lawsuit, charging that denial of HCV treatment violates their Eighth Amendment rights.
Despite the high cost of HCV treatment, some prison systems are offering the new drugs to a limited number of people. The Bureau of Prisons (BOP), which oversees the federal prison system and its over 200,000 people, is receiving a 44% discount on the new drugs, enabling it to make treatment available for some. However, the BOP does not automatically test new arrivals for HCV; instead, its policy guidelines recommend testing for sentenced prisoners with HCV risk factors, all prisoners with certain clinical conditions and those who request testing.
New York State is also approving the new drugs in certain cases. In 2009, New York passed legislation requiring the Department of Health to annually review HIV and hepatitis C care in state prisons, publicly report its findings and mandate improvements so that prison health care mirrors community standards. According to Jack Beck of the Correctional Association of New York, which monitors prison conditions, New York offers treatment at a much higher rate than other states. However, he notes that screenings are limited to people born between 1945 and 1965 and those who meet certain risk factors. "But being in prison is a risk factor," he points out. "If you already know that 17 percent of the population has Hepatitis C, you should test everyone."
In addition to New York's formal policy restrictions, the vagaries of prison health care limit treatment access. To be considered for treatment, the prison's health care provider must first do a HCV workup and submit it to the chief medical officer to approve for treatment. But if no workup is done, then the prisoner is never evaluated and thus never treated.
Medical treatment of people in jails and prisons should be part of a national public health policy, as a wide range of researchers, ethicists and activists have noted for decades with regard to HIV. Approximately 90% of incarcerated people are eventually released and return to their communities. The failure to test or treat them increases both the likelihood of them spreading hepatitis C after they come home and the cost of eventual damage control. A study found that approximately 1.4-million people released from U.S. jails or prisons in 1996 were infected with HCV, making up 31% of the 4.5 million people infected with the virus nationwide at that time. Despite the new HCV drugs high price tag -- a problem that itself has been the subject of litigation and advocacy -- public health leaders stress that treating people behind bars is more effective and less costly than trying to remedy the damage to affected individuals and communities later on.