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Not cruel and unusual? A closer look at Florida’s refusal to treat all inmates diagnosed with hepatitis C

Represented by Attorney General Ashley Moody, the Department of Corrections contends in a brief that the state would not violate the Eighth Amendment ban on cruel and unusual punishment if it did not provide the medication to prisoners in the early stages.
Florida Department of Corrections Gadsden Re-Entry Center located in Havana Florida. Photo from the Florida Department of Corrections.
Published Aug. 8
Updated Aug. 9

The Florida Department of Corrections is taking a stand, refusing to pay for hepatitis C treatment for inmates who are in the early stages of the viral infection.

Back in April, Florida’s refusal drew a rebuke from U.S. District Judge Mark Walker, who blasted the department’s “long and sordid history of neglecting inmates” and said it’s decision was based on saving money. Rather than following Walker’s order that the department screen and treat all prisoners for hepatitis C, state officials appealed.

Earlier this week, the department and Florida Attorney General Ashley Moody filed a brief in federal appeals court that said it would provide treatment only for those with “moderate to severe” forms of the liver disease. The state would not cover treatment for those with earlier stages of the disease.

The treatment, a direct acting anti-viral medication, costs $25,000 to $37,000, state officials wrote in the brief filed in federal appeals court.

RELATED STORY: ‘Long and sordid history of neglect’: Judge demands Florida must treat all inmates with hepatitis C

“Medical studies have not established that (direct acting anti-viral medications) materially improve the mortality rate or quality of life for those diagnosed with early-stage Hepatitis C,” the brief says. “Instead, adequate care for those individuals involves monitoring the disease’s progression and administering DAAs if it becomes medically necessary.”

The treatment cures 90 percent of people with “chronic” hepatitis C, according to the Department of Health and Human Services.

Treating people in the early stages of the disease has long been controversial, said Miriam Alter, former associate director of epidemiologic science of viral hepatitis at the Centers for Disease Control and Prevention, but it can prevent the disease’s spread.

Alter said the treatment can prevent people transmitting the disease and from developing liver disease. The latter is debated because of the cost, that many people will not develop an advanced form of the disease and that there are “no predictors of who will and won’t progress.”

“This is of particular importance in light of the opioid epidemic and increased number of new (hepatitis C) infections among persons who inject drugs,” she said.

The “extremely infectious” viral infection is spread through needles, sexual contact and from mother to child, according to the federal agency. It can make it hard for the liver to work, cause liver cancer and liver failure, according to the Mayo Clinic.

Local state representatives who have pushed for criminal reform slammed the appeal, saying the department needs to provide the treatment for all inmates. One estimate says at least 20,000 Florida inmates have hepatitis C.

Rep. Dianne Hart, D-Tampa, said she doesn’t want a single inmate with any level of hepatitis C to go untreated.

“It’s worth the cost because we don’t want to return sick people into our communities,” Hart said. “Then what happens? It’s a new health crisis back in our state. We need to treat it while people are there so that we’re certain they don’t come home ill and get progressively worse.”

Fellow criminal justice reformer and Florida Sen. Jeff Brandes, R-St. Petersburg, said the state has the responsibility to treat inmates with all due care.

“Florida has a responsibility to provide healthcare to inmates, period,” Brandes said. “We have to address the variety of issues they’re facing, including hepatitis C.”

In May 2017, three inmates with the disease filed the class action lawsuit after being denied care for years from the Department of Corrections and outside companies that provide healthcare in prisons.

In late 2017, Walker ruled that the department had not met its legal duties to treat inmates with the disease and granted the plaintiffs a preliminary injunction. Walker said the department was “deliberately indifferent” to the inmates’ medical needs and required the state to treat inmates with more severe forms of the disease, which could mean hundreds of millions in costs.

The department’s director of health services, Tom Reimers, realized they were not being treated, which he found “unacceptable.” Reimers tried to get funding in 2015 and 2016 but his requests were denied.

In April, Walker turned the preliminary injunction into a permanent one in a move that required the department to provide treatment for all affected inmates.

The Florida Justice Institute, which represented the plaintiffs, at the time called the move a ““victory for public health in Florida.” It also said that one of plaintiffs, Carl Hoffer, died while still needing a liver transplant during case.

A spokesperson for the Florida Justice Institute declined to comment on the appeal filed Monday. The Department of Corrections argues that not providing the inmates treatment in early stages of hepatitis C does not violate the Eighth Amendment, which bars “cruel and unusual punishments.”

The appeal argues that the amendment also allows it to consider costs in weighing whether or not to use to the treatment.

“I’m disturbed about how our prisoners are being treated,” Hart said. “It’s deplorable and I’m working on it.”

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