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Colorado DOC Settles Lawsuit, Agrees to Treat Thousands of Prisoners with HCV

by Dale Chappell

The Colorado Department of Corrections (CDOC) has agreed to settle a class-action lawsuit by providing lifesaving treatment to thousands of prisoners with hepatitis C (HCV), which will cost the state at least $41 million. [See: PLN, June 2019, p.44].

The suit, filed by the ACLU of Colorado in federal court, alleged the CDOC “intentionally and systematically delays and denies necessary medical care” to prisoners with HCV. The pleadings in the case detailed the prison system’s policy of severely restricting treatment to just dozens of the thousands of state prisoners infected with the disease. Such inaction, the lawsuit said, evidenced the CDOC’s “deliberate indifference to prisoners’ serious medical needs,” in violation of their constitutional rights.

To understand how serious of a problem HCV is in prison, the complaint provided some sobering facts. An estimated 3.2 million people are infected with HCV in the U.S., which in 2013 caused more deaths than 60 other infectious diseases combined. In 2017, over 11 percent of the CDOC’s approximately 20,100 prisoners were known to be HCV-positive.

Treatment for HCV used to consist of a combination of drugs that caused major side-effects with less than a 60 percent success rate. In 2013, treatment options changed dramatically when the FDA approved direct-acting antivirals to treat hepatitis C. With a 90 percent success rate, fewer side-effects and a shorter course of treatment, DAAs quickly replaced previous HCV medications as the standard of care. [See: PLN, July 2014, p.20].

DAAs do have one major drawback: their cost. When first introduced, a treatment course with DAAs cost around $80,000 per person. Today that cost is down to $20,000, which is still too high for most prison systems. Citing the expense, prison officials have balked at approving DAA treatment for prisoners, and the CDOC was no exception.

In 2017, the CDOC changed its HCV treatment protocols to create obstacles for prisoners to be considered for treatment, the lawsuit alleged. CDOC policy required a threshold level of liver damage showing an “intermediate” stage of fibrosis. Once that level was reached, the prisoner also had to complete a drug and alcohol program even if it was not available at the prisoner’s current facility. Finally, the prisoner could not have had any disciplinary actions for drugs, alcohol, tattooing or sexual activity for at least 12 months.

In addition to those restrictions, the CDOC limited treatment to just 30 prisoners per year. In a 2016 e-mail to then-U.S. Senator Pat Steadman, prison officials said they would prioritize only “the sickest” prisoners with HCV for treatment. Even assuming the CDOC’s estimate of a mere 735 prisoners qualifying for treatment was accurate, it would take over 24 years to treat them all, the lawsuit noted.

Further, the CDOC had adopted a budget and policies that deliberately failed to provide DAAs to prisoners who needed them – a practice that was “deliberately designed” to deny HCV-positive prisoners proper treatment.

On August 8, 2018, the CDOC signed an agreement to settle the lawsuit. Under the terms of the settlement prison officials agreed to: 1) spend all available funding for 2018-19 in the amount of $20.5 million to treat prisoners with HCV; 2) reduce the threshold liver damage score to allow more prisoners to receive treatment; 3) provide another $20.5 million in treatment for 2019-20; 4) eliminate the drug and alcohol program precondition; and 5) remove the disciplinary action restriction. The CDOC also agreed to pay attorneys’ fees and costs totaling $175,000.

“The funding and policy changes agreed to in this settlement will go a long way toward solving an immense public health crisis in Colorado’s prisons,” said ACLU of Colorado legal director Mark Silverstein. “We hope it will be a model for other states as well.”

The class members in the case were defined as current and future CDOC prisoners diagnosed with HCV who have at least 24 weeks left on their sentences, and a life expectancy of more than a year. The settlement was finalized in April 2019. See: Aragon v. Raemisch, U.S.D.C. (D. Colo.), Case No. 1:17-cv-01744-RBJ. 


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Related legal case

Aragon v. Raemisch