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Kentucky’s Prison HCV Policy of Monitoring Without Treatment Constitutional

by David M. Reutter

The Sixth Circuit Court of Appeals, in an unpublished opinion, held that the Kentucky Department of Corrections (KDOC) policy of refusing to provide Direct-Acting Antivirals (DAAs) to all prisoners infected with hepatitis C virus (HCV) is constitutional. The Court found that because KDOC provides regular monitoring of those prisoners’ condition, it is not deliberately indifferent to their serious medical needs.

The Court’s July 6, 2021, opinion was issued in a class action suit brought about by 1,200 KDOC prisoners, which is about 10% of its population, who are infected with HCV. They alleged that KDOC’s HCV policy violates their Eighth and Fourteenth Amendment rights.

KDOC screens prisoners for HCV and tests for antibodies in prisoners who have certain risk factors or request it.

If a prisoner tests positive for HCV, KDOC “(1) evaluates the inmate for signs and symptoms of liver disease, (2) obtains additional laboratory tests, (3) calculates the inmate’s APRI score (which is used to assess the degree of liver fibrosis, if any), (4) offers vaccines for Hepatitis A, influenza, and pneumococcal, and (5) educates the inmate about chronic HCV.” The prisoner is then assigned one of three priority levels. Only level one receives treatment with DAAs, but an exception can be made if a prisoner exhibits an urgent medical need.

KDOC monitors infected prisoners every three to six months, depending on their health status. A prisoner can receive further testing, such as HCV genotype or a FibroScan of the prisoner’s liver if KDOC’s Regional Medical Director deems it necessary. (FibroScan, also known as transient elastography, is a non-invasive method for the assessment of hepatic fibrosis in patients with chronic liver disease.)

The district court granted the defendants summary judgment after determining “KDOC provided adequate treatment for HCV-infected inmates by diagnosing HCV and monitoring its progression.” The Class appealed.

The Sixth Circuit noted two standards apply to such claims. The no-treatment standard provides that when a physician diagnosis a serious medical need, “the plaintiff can establish the objective component by showing that the prison failed to provide treatment.” Under the ongoing-treatment standard, the objective component is established by showing the treatment was “so grossly incompetent, inadequate, or excessive as to shock the conscious or to be intolerable to fundamental fairness.” The district court applied the ongoing-treatment standard. The Sixth Circuit found that was the correct standard. The Class argued on appeal “that only the cure provided by DAAs suffices as treatment.”

The Sixth Circuit said it could not agree that the Class “received no treatment at all.” The “KDOC plan provides for treatment in the form of diagnosing and monitoring HCV-infected inmates.” It found the Class was complaining about the adequacy of its treatment, which does not amount to an Eighth Amendment violation. In the court’s reasoning, no treatment amounts to treatment as long as prison officials are monitoring the progression of the disease. The district court’s order was affirmed.

In a dissenting opinion, Judge Jane B. Stranch opined that a jury could conclude the “treatment” KDOC provides HCV-infected prisoners is constitutionally inadequate. Judge Stranch noted the many symptoms that HCV causes. She also noted that studies prove that “administering HCV treatment at an early stage of fibrosis increases overall survival rates for patients compared at a later stage.”

The standard of care is to administer DAAs to persons with chronic HCV. By “flouting the recognized standard of care, KDOC consigns thousands of prisoners with symptomatic, chronic HCV to years of additional and irreversible liver scarring,” wrote Judge Stranch.

Stranch continued, “Plaintiffs’ claim is therefore more than a mere ‘disagreement’ with the essentially adequate testing and treatment they have already received.” Judge Stanch would have reversed for a jury to decide the matter. At this point HCV is a fully curable disease that afflicts significant numbers of the prison and jail populations of the USA yet prison and jail officials routinely deny treatment that would cure the afflicted citing costs. See: Woodcock v. Correct Care Solutions, 2021 U.S. App. Lexis 20116. 

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Related legal case

Woodcock v. Correct Care Solutions