Florida let hepatitis C go untreated in prisons. Now it may cost taxpayers millions.

A federal judge ruled late Friday that the state and its healthcare providers let the viral infection go untreated in Florida’s prisons and now must test and treat thousands of inmates at a potential cost of hundreds of millions of dollars.
U.S. District Judge Mark Walker, speaking to graduation ceremonies for the Florida State University College of Law on May 1, 2016.
U.S. District Judge Mark Walker, speaking to graduation ceremonies for the Florida State University College of Law on May 1, 2016.
Published Nov. 20, 2017

The state of Florida may have to pay hundreds of millions of dollars in treatment costs to as many as 20,000 sick inmates after a federal judge ruled Friday that prison officials had failed to properly care for felons infected with the hepatitis C virus.

The ruling, by U.S. District Court Judge Mark Walker, requires the Florida Department of Corrections to immediately treat a significant portion of the state's 98,000 inmates who test positive for the viral infection with direct acting antiviral drugs, a 12-week treatment that now costs about $37,000 per patient.

"FDC has a long and sordid history of failing to treat HCV-infected inmates," Walker wrote in his 32-page ruling. "And this court finds as a matter of fact that FDC's failure to treat was due to a lack of funding."

The class action lawsuit was filed in May by three inmates who have been suffering for years from the ravages of hepatitis C but were denied treatment from both FDC and the private companies contracted to provide medical care in the prison system.

Walker said the state was "deliberately indifferent to the serious medical needs" and noted that only 13 inmates of the more than 7,000 eligible had ever been given the anti-viral drugs and three of them were given treatment after being named plaintiffs in the case.

"If these inmates are not treated, they will undoubtedly suffer irreparable injury," Walker wrote. "Although DAAs [direct acting antivirals] can cure a person of HCV, they do not necessarily reduce the level of fibrosis a person has already suffered. … Consequently, it is important to treat patients with HCV as soon as possible so that they can be cured of the virus before their liver becomes significantly diseased."

He ordered the department to "move with alacrity" and said the court "will not tolerate further foot dragging." He then gave the agency until Dec. 1 to develop a plan and ordered that it treat the most severe cases first.

It is not known what the total cost of the testing and treatment might be, but in the agency's latest budget request, submitted after the lawsuit was filed, it asked for $19.5 million to treat 500 inmates. Treating the 7,000 to 20,000 inmates the department's expert says may be eligible that could cost the state $200 million to $700 million more.

"FDC is absolutely committed to ensuring all inmates in our custody are provided medically necessary treatment that is in line with national standards and our constitutional responsibilities," said Michelle Glady, agency spokesperson in a statement. "We're reviewing the order closely and we'll be determining a plan of action."

The ruling adds more stress to a state budget already battered by rising costs stemming from Hurricane Irma and the arrival of more than 100,000 Puerto Ricans, mostly in Central Florida, after Hurricane Maria devastated that island.

Randall Berg of the Florida Justice Institute, which represented the inmates, said that prisoners are dying, or leaving Florida's corrections system, infected with hepatitis C at a rate exponentially higher than the general population.

"The general public has hepatitis C at a rate of a little over 1 percent, but in the prison population, it's over 15 to 40 percent," he said. "When you have one third of the Florida prison population being released every year, it should be a public health concern that these people get treated while they are in prison so when they get out, they don't transmit it to others."

Hepatitis C is a viral infection most often contracted through intravenous drug use, but it also can be transmitted through tattooing or blood transfusions. It leads to liver infection and scarring and can cause liver cancer, bleeding, bloating and a painful death.

Until recent years, treatment was difficult but, in 2013, a new class of drugs known as direct-acting antivirals were released to the market. The once-a-day pill, administered for about 12 weeks, has few side effects and a 95 percent cure rate, witnesses told the court.

The ruling is also an indictment on Florida's privately run prison medical care, Berg said. "The court demonstrated the department knew the two contractors weren't providing the care and they did nothing about it."

Berg said he brought his first lawsuit against the department for its failure to treat hepatitis C in 2002 and has documented a pattern since then in which the agency avoids providing treatment but then sends inmates "to the hospital for days on end, with a corrections officer, at huge cost."

According to testimony before the court, FDC's healthcare providers, Corizon and Wexford, recognized that many inmates showed signs of advanced liver damage and could benefit from the antiviral drug, but they were not given it "because the funds were not available."

FDC Director of Health Services Tom Reimers "recognized that inmates with HCV were not being treated and found the lack of treatment to be unacceptable," Walker wrote.

But when Reimers submitted a request in 2015 for $6.5 million in funding to pay for the treatment, it was denied. He made another request in 2016, this time for $29 million to cover treatment for the 2017-18 budget year, "but that never made it out of FDC," Walker concluded.

"Eventually, Corizon and Wexford's contracts with FDC ended, and FDC began a new contract with Centurion," the court said. "But that change in contractor did not come with a change in behavior; inmates with HCV were still not being treated."

A week before the court hearing in October, FDC sent a letter to the court outlining a new policy to treat inmates of HCV and showing the first budget request for the treatment to come from Gov. Rick Scott and Florida Department of Corrections Secretary Julie Jones. But Walker was not persuaded that enough patients would be treated fast enough.

"FDC's history of past misconduct leads this court to believe that future injury is imminent," he wrote. "Specifically, this court finds that FDC will not treat HCV-infected inmates in an appropriate and timely manner."

Walker's order requires that inmates with the most severe injury, "decompensated cirrhosis" of the liver "should be treated immediately," those with cirrhosis should be treated in three to six months and those with "fibrosis scores" should be treated within a year.

"This court recognizes that the labs and proprietary testing costs approximately $400 per inmate, but time is of the essence and the urgency is born of delays of the defendant," Walker wrote.

The agency has not decided if it will appeal the ruling, Glady said.