Tag Archives: California

Class Action Correctional Malpractice

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By: Marcus J. Hopkins, Blogger

Inmates in Oklahoma prisons must have advanced liver disease before they become eligible for treatment for Hepatitis C (HCV). This means that their livers must manifest significant scarring before they’re even allowed to receive the curative treatment that will prevent further damage (Botkin, 2018).

A class action lawsuit has been filed in the state of California alleging that doctors within the prison system have denied them treatment because their liver disease isn’t advanced enough, that their disease is too advanced, and/or the drugs are too expensive (Locke, 2018).

A class action lawsuit in Missouri alleges that only five out of thousands of Missouri inmates have received treatment for HCV, desite between 10-15% of the incarcerated population being infected with HCV (Margolies & Smith, 2017).

Idaho says that nearly 1/3 of its prisoners have HCV, and it needs $3M to treat them (Boone, 2018). An inmate diagnosed with HCV while in a Mississippi prison has filed a suit alleging they’ve refused him treatment on at least nine separate occasions (Wolfe, 2018).

Inmate looking out window with bars on it

Photo Source: thedenverchannel.com

Each of these instances is indicative of a few major points: (1.) We have a growing number of prisoners within our justice system who are infected with HCV; (2.) Prison systems and/or state Departments of Corrections (DOCs) are refusing or delaying treatment; (3.) This is unconstitutional.

In last week’s HEAL Blog (“Cruel and Unusual” Neglect in Prisons), we introduced the concept of “deliberate indifference,” a measure introduced by Estelle v. Gamble (1976). This week, there’s another take – does being literally unable to afford the cost of treating inmates qualify as deliberate indifference?

The answer to that question really depends on the judge who hears the case. In 2017, U.S. District Court Judge Mark Walker in Tallahassee, Florida ruled in favor of three inmates who filed a class action lawsuit against the state of Florida, requiring the state to treat a significant portion of its 98,000 inmates (total population; not HCV-infected population) for HCV (Klas, 2017). Similarly, in Pennsylvania, a U.S. District Court Judge Robert D. Mariani ruled in favor of Mumia Abu-Jamal, an inmate who gained notoriety for his shooting of an officer who had stopped his younger brother in a traffic stop (Mayberry, 2017). Both Federal judges found that prisons are required to provide treatment for HCV, regardless of the cost.

Make no mistake, however – these rulings are few and far between; the primary issue is that it’s difficult to prove “deliberate indifference” without detailed and voluminous documentation. Even then, the measure is specifically designed to be difficult to prove (as are all burdens of proof). And the primary reason why prisons refuse or delay treatment has little to do with indifference, so much as the cost. HCV Direct-Acting Antivirals are prohibitively expensive for regular consumers; prisons, however, have even less wiggle room, as they are largely unable to negotiate on drug prices.

Where we are, at the moment, seems to be a holding point: until the drugs to treat HCV get exponentially cheaper to purchase (right now, the least expensive 8-week treatment regimen – Mavyret (AbbVie) – goes for $26,400, roughly 1/3 the cost of the cheapest drug in 2013), prison systems are unlikely to make any substantive efforts to treat HCV-infected inmate. Moreover, until the Federal government requires states to both screen and treat inmates for infectious diseases, it’s likely that HCV will continue to spread among inmates and the general population.



Disclaimer: HEAL Blogs do not necessarily reflect the views of the Community Access National Network (CANN), but rather they provide a neutral platform whereby the author serves to promote open, honest discussion about Hepatitis-related issues and updates. Please note that the content of some of the HEAL Blogs might be graphic due to the nature of the issues being addressed in it.


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Pre-Requisite Treatment Standards Still Abound

By: Marcus J. Hopkins, Blogger

Remember that time when county health officials refused medical treatment coverage to people living with HIV if they were drug users and openly admitted it in a radio interview? Yeah…me, either. This was, however, the case on August 24th, 2016, when Dr. Hal Lee, Los Angeles County Health Services’ Chief Medical Officer and liver specialist, freely admitted to the practice with the following statement:

It’s our obligation to offer treatment in a manner that’s rational and logical. We identify the individuals for initial treatment right now, based on how we can offer the most care to the most people, who are going to benefit from it the most now. We believe it is likely that patients who are not using drugs are more likely to complete the treatment than people who are actively using illicit drugs (Plevin, 2016).

This policy is in direct conflict with the Medi-Cal – California’s Medicaid program – Treatment Policy for the Management of Chronic Hepatitis C, a set of guidelines that went into effect on July 1st, 2015, well over a year prior to the date of this interview (State of California, 2015). What makes Yee’s statement ironic is that Medi-Cal is very likely the agency that would be paying for the services that his office is failing to provide.

In this interview, the reporter states that Yee has developed a checklist of criteria to determine if patients are eligible for treatment – one that apparently disregards the very specific checklist put forth by the State of California. One of the criteria requires patients to be free of drug use for six months prior to receiving Hepatitis C medications.

To bring this further into focus, Health Services, which provides health care for about a half-million low-income Los Angelinos, has approved treatment for only 160 people, as of the beginning of August. By comparison, San Francisco Health Network, which serves only 65,000 people overall, treated 631 people by late June 2016. This is a stark difference in treatment approaches, and speaks, I believe, to the social and socioeconomic stratification that exists in Los Angeles County.

My own experiences with L.A. County’s Health Department left much to be desired. As someone who has relocated to several states and been the beneficiary of their respective health agencies, my experiences within L.A.’s low-income health care programs presented a stark and sad reflection of how L.A. treats its residents who don’t reside in the best zip codes.

Hospitals were run essentially like prisons, with barred windows, numerous metal detectors, and employees who behaved more like judgmental prison workers, rather than health care professionals. Facilities were overcrowded, parking was nearly impossible to find, and locations were so far-flung that taking public transportation to them would take hours. After enduring hours-long commutes on the 5 and 405 freeways just to get to an appointment, I finally gave up on the County program and switched my treatment facility to the AIDS Healthcare Foundation in Van Nuys.

Just beyond the Sepulveda Pass in “The Valley” (San Fernando, that is), this facility that catered to low-income patients was in the right zip code. Though small, it was rarely crowded, focused solely on patients with HIV, and the employees treated everyone, regardless of their mental or physical state, without judgment. There were no metal detectors or barred windows; just good healthcare providers.

Dr. Hal Lee

Photo Source: L.A. Care Consult

What makes me sad about the interview with Dr. Yee is the following quote:

If 70 percent of individuals would live out their lives without any consequences of their hepatitis C infection, none of those people will benefit from treatment. I know that if you come talk to me in one year, in five years, in ten years, you’re going to see these numbers climb, because we’ve put in infrastructure that I know allows us to provide the kind of care that other counties can’t even begin to think about.

Make no mistake – Yee’s approach to treatment is not only outside of California’s long-established treatment guidelines, they are also part of a greater issue: the belief that not everyone is deserving of treatment; that some patients are just “better” than others; that one’s station in life makes them more deserving of quality healthcare.

This interview with not just a county healthcare employee, but the Chief Medical Officer, is a sad reminder of how some doctors fail to live up to their obligations to their patients in a nation where healthcare is not considered a human right. Opponents of Universal/Single-Payer Healthcare love to bandy about the boogieman of “Death Panels,” failing to see that those types of panels already exist, right here in our United States.

Disclaimer: HEAL Blogs do not necessarily reflect the views of the Community Access National Network (CANN), but rather they provide a neutral platform whereby the author serves to promote open, honest discussion about Hepatitis-related issues and updates. Please note that the content of some of the HEAL Blogs might be graphic due to the nature of the issues being addressed in it.




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Litigation and Legislation May Force Lower Prices

By: Marcus J. Hopkins, Blogger

The past three years have brought many great tidings for those living with Hepatitis C (HCV): a total of seven new HCV-specific Direct Acting Agent (DAA) regimens have been released onto the market, all of which are far more easily tolerated than the ribavirin and Pegylated interferon-based treatments, and all of which sport Sustained Virologic Response (SVR) rates of above 90% in most HCV patients. We’re now looking at the release of at least one more drug from Gilead, this year, that will be pan-genotypic – it can be used in the treatment of any genotype of HCV – as well as the possibility of injectable treatments that can be used on a regular basis, and reduce reliance upon pills.

Image of a stethoscope wrapped around a $20 bill , laying next to an open medication bottle

Affordable Healthcare

But, the reality is that these medical and technological breakthroughs cost money. Lots of money, really; and there seems to be no one willing to accept responsibility for their part in creating a market where a Wholesale Acquisition Cost (WAC) – the “baseline” for a drug’s price, before discounts and rebates – of $54,000 for twelve weeks of treatment is seen as a welcome reprieve.

Since Sovaldi (Gilead) and Olysio (Janssen) hit the market in 2013, virtually every payer and patient in the medical field has had a beef with the cost of the medications. Public and private payers, both, have essentially gone out of their way to restrict access to these medications to only the sickest of the sick, creating moral and legal arguments that may force those payers to pony up, regardless of whether or not they can “afford” the price.

On the legislative front, both California and Ohio are considering similar pieces of legislation that would require all state-run health agencies to purchase drugs at the lowest price paid by the Veteran’s Affairs (VA), which would mean that the “private” contract between manufacturers and the VA would have to become transparent. This could be either a boon or a bust, as VA prices may not be the cheapest of all the prices being paid, or in some cases, could be significantly less than one agency is paying for treating a large swath of people. Essentially, all public payers would have to pay the same price, whether or not the pharmaceutical company likes it, which could mean both a decrease in profits for them, as well as either an increase or decrease in spending for the payers.

These legislative efforts, both of which are sponsored by the AIDS Healthcare Foundation (AHF), are essentially an effort to force pharmaceutical companies to show their hand on pricing. If they’re giving a significantly lower price to one agency over another, they risk their ability to haggle for higher payments from other agencies. It’s an attempt to essentially level the playing field, and to do away with the “trade secret” nonsense that prevents publicly-funded agencies from openly discussing and publishing the exact details of these agreements.

On the litigation front, two new class action lawsuits have been filed in Washington state, aimed at forcing both private and public payers to provide HCV drugs to patients, regardless of the prices set by the manufacturers. Since Sovaldi and Olysio hit the market in 2013, payers have consistently been accused of establishing and maintaining overly and intrusively strict pre-requisites before providing HCV drugs to patients. The restrictions became so rampant that Gilead effectively severed access to its once very generous Support Path Patient Assistance Program (PAP) in response to private and public insurers refusing to pay for the drugs (despite having reached a pricing agreement with Gilead), and instructing patients to “…just go get it for free from Gilead.”

Private insurers have never been the bastion of ethical business practices; it has long been conventional wisdom that insurance companies will do their best to refuse coverage, just to save a buck, all while jacking up premiums, deductibles, and out-of-pocket costs in the process. It, therefore, comes as no surprise that they would refuse to pay for drugs.

State Medicaid programs face a particularly tough road in this legal battle, as the Centers for Medicare and Medicaid Services (CMS) issued guidance in November 2015 specifically stating that Federal law requires them to provide these drugs regardless of the price. This came after several complaints were filed stating the state Medicaid programs were violating the law by refusing to provide access to these medications on the basis of cost, alone. Arizona’s Medicaid program has reportedly stated that they will not be complying with the CMS guidance. While Washington state’s Medicaid program, Apple Care, has not released any similar responses, it’s not unlikely that they are simply refusing (or unable) to act on it.

The reality is that the high cost of these medications honestly restricts payers from providing access to these medications. In the case of Washington state, were the program to cover treatment for every Medicaid patient with HCV, the cost is estimated to be triple the total pharmacy budget for Fiscal Year 2016 ($1 billion). So, while covering the cost of treatment for everyone is the goal, that goal may simply be unfeasible if current pricing structures remain the same.

Disclaimer: HEAL Blogs do not necessarily reflect the views of the Community Access National Network (CANN), but rather they provide a neutral platform whereby the author serves to promote open, honest discussion about Hepatitis-related issues and updates. Please note that the content of some of the HEAL Blogs might be graphic due to the nature of the issues being addressed in it.


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