Nevada prisoners denied hepatitis C treatment sue the state

Nevada inmate Elizabeth Carley had experienced liver damage, fatigue and stomach pain from hepatitis C by the time she filed a lawsuit against the state Department of Corrections in 2017.

Carley, 42, entered prison in 2012 after she was convicted of theft and forgery and sentenced to up to 215 months. Two years later, she was diagnosed with hepatitis C, a bloodborne virus that can be fatal if left untreated.

Like several other Nevada inmates who filed similar suits, she pleaded with medical staff and prison officials to provide her with hepatitis C medications — costly but effective drugs known to cure 90 percent of patients — in at least three grievance reports.

But each time, officials denied her requests, stating that her condition had not progressed enough to meet the criteria for treatment, according to those reports filed with the court as part of her lawsuit.

Nevada is one of at least a dozen states where prison officials, citing the high cost of hepatitis C medication, have denied or limited access to the drugs, and have been challenged by inmates suffering from the disease. A round of treatment can cost up to $30,000.

“As the disease is allowed to attack my liver, over time, my liver will fail to work properly causing me serious bodily harm,” Carley, who is housed at the Florence McClure Women’s Correctional Center in Las Vegas, wrote to prison officials in an Oct. 21, 2016, grievance. “It is not medically accurate or proper treatment procedure to wait until hep C gets worse before treating it.”

Nevada prison officials, who have faced several similar complaints, revised their hepatitis C treatment policies last month, telling legislators it was an effort to improve them. However, a federal class-action suit filed Dec. 9 by eight inmates, including Carley, claims the prison system is still denying or delaying thousands of Nevada inmates suffering from hepatitis C access to the life-saving treatment.

“The point is to provide treatment to the inmates for a treatable disease before it worsens to the point that they have irreparable damage to their bodies,” said Adam Hosmer-Henner, a partner in the Nevada law firm McDonald Carano, who is representing the inmates in the class-action suit.

Nevada prison officials made the recent revisions to the hepatitis C policy after a federal judge’s order consolidated the Nevada inmates’ suits, raising the potential for a class-action suit. Under the previous policy, hepatitis C patients like Carley were excluded from treatment if tests indicated they did not have severe enough liver damage.

The new guidelines appear to expand treatment, but still give priority to those with more advanced stages of the illness.

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The lawsuit argues that the revised policy still causes delays in treatment for many inmates, allowing their condition to worsen and putting them at serious risk of liver failure, cancer and death. Failure to provide the treatment amounts to a “deliberate indifference” to prisoners’ serious medical needs and violates their constitutional rights, as well as the Americans with Disabilities Act, the plaintiffs claim.

“While they have appeared to remove the absolute exclusion of some patients, they still have not committed to providing everyone who needs the cure with the cure,” said Maggie McLetchie, whose firm is co-counsel with Hosmer-Henner in the class-action suit. “Prioritizing treatment, by definition, means that they are going to be denying or delaying care to some people who need it.”

Nevada Department of Corrections officials did not respond to requests for comment. However, in a Nov. 15 memo to an interim legislative finance committee, John Borrowman, the department’s deputy director for support services, stated that 827 Nevada inmates have been diagnosed with the virus. The memo, informing the committee about the department’s recent policy change, did not state how many of those inmates were receiving treatment.

Borrowman noted that the number of Nevada prisoners affected by hepatitis C is likely higher because the remaining 12,429 inmates have not been tested for it. Unlike the department’s previous policy, which only tested those who showed symptoms of hepatitis C, the new policy would test all prisoners, as well as incoming inmates, Borrowman stated.

Research has shown that about 17 to 23 percent of the nation’s prison population is infected with hepatitis C — which is most often transmitted through the sharing of needles — compared to 1 percent of the general population. Exact figures are unknown because many prisons do not test inmates for the virus.

Similar class-action suits have been filed in at least a dozen other states since 2013, when direct-acting antiviral, or DAA, medications, a course of pills recognized as the standard of care for hepatitis C, became available. In recent months, inmates in Texas and Maine have filed lawsuits claiming they are being denied the drugs. Inmates in Massachusetts, Colorado, Pennsylvania and Minnesota have settled class-action suits resulting in policy changes that give prisoners access to the treatment. In at least one state, Tennessee, a federal judge sided with the state Department of Corrections’ hepatitis C treatment policies.

Prison officials generally cite the high costs of DAA drugs for denying the treatment, according to a 2018 survey of 49 state prison authorities conducted for a master’s degree project at the Toni Stabile Center for Investigative Journalism at Columbia University’s Graduate School of Journalism.

When the antiviral drugs first came to the market, a round of treatment totaled about $120,000 per person, said Mandy Altman, director of the National Hepatitis Corrections Network, an arm of the Hepatitis Education Project. The Seattle-based nonprofit provides support, education, advocacy and services to people affected by viral hepatitis.

She said those prices have since dropped to about $20,000 to $30,000, and prisons can further reduce costs through group purchasing agreements or by directly negotiating with pharmaceutical companies.

Altman pointed to Louisiana, where state officials recently made an agreement with a drug provider to pay a flat fee for unlimited hepatitis C medication for five years to make it accessible to all patients, including prisoners.

“I think a lot of states are going to have to come up with creative solutions like that,” she said.

She noted that most people in prison are eventually released back into the community. Because hepatitis C is more prevalent in inmate populations, providing them treatment reduces the risk of spreading the virus both inside and outside prisons, she said.

“Treating someone with the virus sooner also reduces their risk of long-term complications and liver cancer,” Altman said, adding that those conditions are more expensive to treat than hepatitis C. “Overall, it’s better for the patient, it’s better for the community and it’s more cost effective.”

Nevada prison officials plan to budget about $6.85 million toward hepatitis C testing and treatment, Borrowman stated in his memo to the finance committee. He noted that the cost analysis would be more accurate after testing was performed on all inmates.

But attorneys for the inmates argue that the department’s policy to prioritize treatment for those with the worst conditions is still unconstitutional.

McLetchie pointed to recommendations developed by health care and medical experts, which say all patients — with few exceptions, such as those near death — should be given DAA medications regardless of how advanced the illness is.

“Medical doctors are supposed to be following medical standards of care when they provide treatment,” the attorney said, “and that doesn’t change because they are providing treatment at a prison.”