With a potential $28 million price tag looming, a federal appeals court on Wednesday heard arguments in a long-running dispute about whether Florida is providing proper treatment to prisoners with hepatitis C.
The class-action lawsuit centers on the use of an expensive type of medication known as “direct acting anti-virals” to treat hepatitis C, a contagious liver disease that can be fatal.
U.S. District Judge Mark Walker last year ordered the Florida Department of Corrections to provide the treatment to all inmates with the disease, but the agency appealed to the 11th U.S. Circuit Court of Appeals.
The state does not dispute that direct acting anti-virals should be given to inmates with later stages of hepatitis C. But the corrections department contends that it would not violate prisoners’ constitutional rights if they did not receive the high-cost medication in the early stages.
In a budget passed in March, state lawmakers set aside $28 million in reserves to pay for the treatment if needed.
The state asked the Atlanta-based appeals court to fast-track a decision in the case to make sure the money would be available in time for an April 2021 deadline to carry out Walker’s order.
During a hearing Wednesday of a three-judge panel, Judge Beverly Martin repeatedly pressed Florida Deputy Solicitor General James Percival to explain why the state is limiting treatment to inmates with more advanced stages of the liver disease. People with early stages are classified as “F0” or “F1” patients.
“What is a reason other than cost for not treating an F0 or F1?” Martin asked.
“Our judgment about medical necessity,” Percival, who represents the corrections department, said. “Our position is that you can basically do a cost-benefit analysis, just like a person would do if they were paying for their own treatment outside of prison.”
Walker last year ordered a two-year process to provide direct acting anti-virals to inmates with early stages of the disease. In the April 2019 ruling, the federal judge wrote that even inmates with no or mild liver scarring “have serious medical needs, FDC (the Department of Corrections) is aware of those needs, and FDC’s decision not to treat those inmates --- without any medical reason for that decision --- constitutes deliberate indifference.”
Dante Trevisani, who represents the plaintiffs, asked the panel Wednesday to uphold Walker’s ruling, saying inmates who don’t get the treatment in the early stages “face a substantial risk of serious harm.”
But Judge Kevin C. Newsom pointed out that previous court decisions have held states aren’t required to provide “medical care that is great or even very good” to prisoners.
“Certainly, in the private world, there are lots and lots of people who can’t get the medical treatment that they need solely because it’s too expensive,” Newsom said. “You are saying that no matter how expensive the treatment, a prisoner is entitled to better medical treatment than they are on the outside.”
The judge asked Trevisani if non-prison patients in the early stages of hepatitis C “have to wrangle” with insurance companies to cover the costs of the expensive medications.
But Trevisani said all insurance companies are providing direct acting anti-virals to F0 and F1 patients, and the federal government is covering the costs of the treatment for veterans and Medicaid patients.
“There’s a concession in the record that treatment is medically necessary,” Trevisani, executive director of the Florida Justice Institute, said. “We’re not saying that costs can never be taken into account. They just can’t be taken into account to the exclusion of any medical judgment.”
But Newsom persisted, posing a hypothetical situation in which an inmate is beginning to suffer from hearing loss. One doctor might decide that a cochlear implant is necessary, while another might say hearing aids are sufficient, Newsom said.
The hepatitis C case is different than “a reasonable disagreement between two forms of treatment,” Trevisani said.
“It’s a choice between the only form of treatment that’s available or none at all, where the only reason for not providing that … is financial,” he argued. “The secretary (of the Department of Corrections) hasn’t argued that they can’t afford to provide this treatment. They’re just saying that they don’t want to pay for it.”
According to a monthly status report filed by the Department of Corrections with Walker in May, 8,338 of the state’s roughly 94,000 prisoners were identified as having chronic hepatitis C. But the number of inmates who have the disease could be much higher, as new prisoners enter the system and as officials continue to screen for infections.
The Legislature set aside $28 million in the budget for the fiscal year that begins July 1 to address the cost of the drugs involved in the lawsuit, with a caveat that the money could be steered to address the coronavirus pandemic.
“Release of the funds shall be contingent upon an adverse outcome against the state, after the conclusion of all appeals, in the class action lawsuit which required the treatment of inmates testing positive for level F0-F1 (early stage) Hepatitis C as of December 2017, and the submission of a treatment plan for such inmates by the department specifying the funds required to provide treatment which can be initiated or completed prior the end of Fiscal Year 2020-2021,” budget fine print, known as proviso language, said.
The fine print also said the department could request the release of the money “if needed to respond to a pandemic in the prison system.”
During Wednesday’s hearing, which was held by telephone, Trevisani told the three judges that it’s unclear how much the drugs cost the corrections department.
The treatment, which originally cost up to $75,000 when first released in 2013, costs $37,000 for a 12-week regimen, according to court documents filed by the state three years ago.
Since then, the state hasn’t revealed how much is being spent on the direct acting anti-virals, Trevisani said.
“We have a deposition in June of 2018 where we heard the department is getting an aggressive discount on the price, but we don’t actually know the cost,” he said.
