Kansas can no longer put off care for Medicaid patients with hepatitis C because of a recent legal settlement. But hundreds of the state’s prison inmates not covered by that lawsuit will have to wait another year for the pricey treatment.
That raises concerns about whether the delay constitutes cruel and unusual punishment under the U.S. Constitution, civil rights lawyers say, because inmates have the right to medical care.
“This is a fairly clear Eighth Amendment violation,” said Lauren Bonds, legal director for the ACLU of Kansas, which brought the Medicaid lawsuit. “Delayed treatment is unconstitutional.”
Kansas prison officials say more than 700 inmates currently have hepatitis C, a virus that attacks the liver and that’s most commonly contracted by sharing needles to inject illegal drugs. The state Department of Corrections expects about half will receive treatment this year, starting with those who’ve developed liver cirrhosis from the virus.
That’s on top of about 100 inmates treated in recent months, agency spokeswoman Jeanny Sharp said.
“The treatment strategy,” she said, “aligns with what many other states that were sued were asked to do.”
Kansas, she said, is doing it voluntarily.
Legal challenges
States landed in legal hot water in recent years for limiting hepatitis C treatment for their Medicaid and prison populations in response to the sky-high cost of new drugs. The drugs offered highly effective treatment to clear infections up, but with price tags that could total nearly $100,000 per person.
Kansas settled the Medicaid lawsuit, agreeing to no longer limit coverage of hepatitis C medication to those with more advanced liver scarring, while forcing others to wait.
Read the state’s settlement with the ACLU over Hep C coverage.
The suit didn’t cover prisons, but last fall, Kansas began screening all inmates for hepatitis C.
The corrections department says costs vary, but tend to run between $15,000 and $17,000 to treat the typical inmate. That can involve several months of daily medication.
The state will spend $6 million in fiscal 2020 on treating about half of its inmates with hepatitis C, a corrections official last week told a meeting of state leaders charged with signing off on the expense. Gov. Laura Kelly and the legislative leaders agreed unanimously.
Waiting for treatment
As it stands, inmates with less advanced hepatitis C will need to wait until fiscal 2021.
The corrections department wanted more funding to treat them this year instead, but the governor’s office didn’t request the full amount from the Legislature.
A spokeswoman said Tuesday Kelly is committed to ensuring inmates get treatment.
The state “will move as quickly as possible to treat every prisoner affected,” Dena Sattler wrote, “and if additional funding is required to keep providing treatment before the next fiscal year, the Governor will make additional budget recommendations as necessary.”
More inmates are testing positive for hepatitis C than initially estimated — about 13 percent of people entering the prison system.
It can take years for the outward signs and symptoms of the virus to develop, such as jaundice and fatigue.
About one in four people who get hepatitis C fend it off naturally. For most, the disease takes its toll, causing chronic infections.
As many as one in five eventually develop cirrhosis and one in 20 get liver cancer. Some cases require liver transplants.
Studies suggest early hepatitis C treatment benefits patients, while delaying treatment can harm their long-term health.
The costs of hepatitis C treatment are just one of the woes the corrections department is juggling. It’s struggled, for example, to pay guards well enough to keep prisons adequately staffed.
Bonds, of the ACLU, wouldn’t rule out heading back to court to press for speedier hepatitis C treatment in prisons. At the same time, she said the ACLU understands the system is facing budgetary hurdles.
“We do want to recognize and at least acknowledge that there has been some progress made,” she said. “We do want to be reasonable and see if there is a non-litigation means to get prisoners treated more quickly.”
The ACLU is continuing to monitor hepatitis C treatment for Medicaid patients, too. Under the terms of the state’s settlement with the group, Kansas agreed to hand over quarterly updates on how many patients are prescribed treatment and whether their requests get approved.
Previously, the state’s privatized Medicaid program, KanCare, approved only patients with the most serious liver scarring. It made them pass extensive sobriety tests, too.
The settlement says Kansas can only impose a three-month drug-free period instead of six, and that it can’t reject patients for using alcohol or illegal drugs that aren’t taken by needle.
Celia Llopis-Jepsen is a reporter for the Kansas News Service, a collaboration of KCUR, Kansas Public Radio, KMUW and High Plains Public Radio covering health, education and politics. You can reach her on Twitter @Celia_LJ or email celia (at) kcur (dot) org.
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