by Matt Clarke
A trio of pro se prisoner appeals denied by the U.S. Court of Appeals for the Fifth Circuit on September 22, 2021, left intact an agreement approved earlier in the year by the U.S. District Court for the Southern District of Texas, under which the Texas Department of Criminal Justice (TDCJ) settled a federal class-action lawsuit brought by prisoners diagnosed with a Hepatitis C infection who were seeking treatment with Direct-Acting Antiviral (DAA) medications, an effective but expensive treatment that can run $50,000 per course.
In that settlement, which was approved on February 5, 2021, Texas agreed to provide the treatment and was ordered to pay the plaintiffs’ attorneys $650,000 in fees, costs and expenses up to the settlement date, plus another $300,000 in attorney fees for administering the class in the future.
TDCJ prisoners Matthew Roppolo, Victor Valdez, Da-Na Allen, and Johnny Cook, with the assistance of attorney Jeff Edwards of the Edwards Law Group, filed a class-action federal civil rights complaint pursuant to 42 U.S.C. §1983, the Americans with Disabilities Act and the Rehabilitation Act against TDCJ, the University of Texas Medical Branch at Galveston and the Correctional Managed Health Care Committee, along with their employees, seeking an injunction requiring defendants to provide DAA treatment to prisoners diagnosed with chronic Hepatitis C.
In signing the private settlement and compromise agreement under 18 U.S.C. §3626(c), plaintiffs acknowledged it was not a consent decree, nor was the settlement subject to many of the provisions of the Prison Litigation Reform Act.
The settlement class includes “all inmates in TDCJ custody who have been diagnosed with Hepatitis C as of September 3, 2020,” and were still in custody and had that diagnosis when the settlement agreement was entered. Prisoners in the settlement class and those diagnosed with Hepatitis C after September 3, 2020, are eligible for DAA treatment provided six months have passed since their initial infection and:
• they are till infected with Hepatitis C;
• they have a life expectancy of more than a year if treated with DAA;
• their release date is at least 25 weeks after the recommended start of treatment; and
• the provision of DAA is not medically contradicted for them.
Defendants agreed to provide all eligible prisoners DAA treatment, with priority based upon their Metavir Fibrosis Score and settlement class membership. The Fibrosis Score, in turn, is based on the prisoner’s APRI score, which is the indexed ratio of their AST liver enzyme to their platelets (APRI), with those with the highest ratios of 2.0 or more assigned a Fibrosis Score of F-4, meaning their DAA treatment must have started by December 31, 2020. Lower scores have later deadlines:
• January 1, 2022, for F-3, with APRIs between 1 and 2;
• October 1, 2023, for F-2, with APRIs between 0.5 and 1; and
• January 1, 2028, for F-4, with APRIs under 0.5.
The final Fibrosis Score depends on consideration of biomarkers, medical evidence of cirrhosis, and other medical guidelines. Anyone with an APRI score of two or more must be given a liver ultrasound within 90 days to rule out cancer and assist scoring.
Deadlines were also set for the start of DAA treatment for eligible prisoners who were not settlement class members, according to their Fibrosis Scores:
• F-4, within 120 days of diagnosis;
• F-3 within 9 months of diagnosis or by September 1, 2022, whichever is later;
• F-2, within 12 months of diagnosis or October 1, 2023, whichever is later; with no deadline for F-1 or F-0.
Defendants agreed to treat at least 1,200 TDCJ prisoners with DAA each year through January 1, 2028. They also agreed to a dispute resolution process, and they were ordered to pay class counsel a total of $950,000 in attorney fees, costs and expenses. Defendants will also provide quarterly and bi-annual reports on the progress of the treatment program and agreed that this settlement had no monetary compensation, but it did not preclude individual prisoners from filing lawsuits over a failure to treat Hepatitis C or delayed treatment. See: Roppolo v. Linthicum, USDC, S.D. Tex., Case No. 2:19-cv-00262.
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Related legal case
Roppolo v. Linthicum
|Cite||USDC, S.D. Tex., Case No. 2:19-cv-00262|