Prisoners With Hep C Get Cured In Some States But Not Others

Editor’s Note (Oct. 17, 6:30 p.m.): The Pennsylvania Department of Corrections has updated its treatment policy since the survey described in this article was taken. It reports having treated nearly 100 inmates with the new class of hepatitis C medications; it is not the case that none of the nearly 7,000 inmates with hepatitis C in the state’s prisons have been treated. The article has been updated to reflect the change in treatment. FiveThirtyEight should have contacted state officials prior to publication to learn of the department’s current policy.

Salvatore Chimenti already had advanced liver damage from the hepatitis C virus when he filed a lawsuit against the Pennsylvania Department of Corrections in the summer of 2015. He wanted access to new and expensive drugs that cure the virus in 90 percent or more of people who take them. Because he is an inmate, when the DOC denied him the medication, the only way Chimenti could potentially get it was to sue. “When you’re in prison, you have no other option, this is your only medical provider. You cannot get a second opinion; you can’t pay for it yourself. You are completely under the control of the Department of Corrections and their medical provider,” said Su Ming Yeh, an attorney with the Pennsylvania Institutional Law Project who is representing Chimenti in a class-action lawsuit.

Chimenti’s health has deteriorated since last year, Yeh said. “Since we even filed the lawsuit, he has progressively gotten worse in terms of his symptoms, and a mass in his liver has appeared.” Depriving prisoners of treatment is considered cruel and unusual punishment, a violation of the Eighth Amendment to the Constitution, which is why inmates are the only people in the country with a constitutional right to health care. She believes the DOC’s denial of medicines to Chimenti and hundreds of other Pennsylvania inmates with hepatitis C is unconstitutional, and though a Pennsylvania judge denied treatment to a prisoner in a different case earlier this year, he came to the same conclusion as Yeh.

As these new and expensive drugs become the norm for treatment, it’s relatively certain that state prison systems will be on the hook to provide them to at least some inmates. But how many, and how much it will cost, appears to vary dramatically, according to data from a study released last week. And even at discounted prices, most states will spend millions of dollars a year just treating the worst cases of hepatitis C among inmates.

The Federal Bureau of Prisons has guidelines for treating prisoners that include providing the new drugs. But the vast majority of U.S. prisoners are held in state facilities; about 1.4 million people are in state prisons, compared with about 191,000 in federal prisons. In their study, researchers from Yale and the Association of State Correctional Administrators sent two surveys to every state prison system. The first looked at care across states — who was getting treatment, and what kind — and the second focused on how much corrections departments were paying for the new drugs, specifically Sovaldi, which was approved for use in 2013, and Harvoni, which hit the market in 2014 (there have since been several others). They found that less than 1 percent of state inmates with hepatitis C¹ had received these medications in prison as of Jan. 15, 2015. Although the data isn’t current — the first survey captures the scale of treatment as of Jan. 15, 2015, and the second looked at prices paid for treatment as of Sept. 15, 2015² — it provides a snapshot of both the difference in the number of inmates with hepatitis C among states and how hard it is to negotiate drug prices.

Pennsylvania, where Chimenti is an inmate, reported that 14 percent of its inmates had the virus, 6,976 people at the time of the survey. None was receiving treatment. (Pennsylvania updated its hepatitis C protocol in 2015, DOC spokeswoman Amy Worden said in an email. The state said it has treated nearly 100 inmates with the new class of drugs.)

There are some significant caveats to these numbers, because states track the virus differently. Some states screen everyone who comes into prison, and others simply ask inmates whether they’ve ever been told they have hepatitis C. Some don’t keep track at all. Still, it’s the first time in 15 years that a study has tried to show the number of people getting treatment in each state system.

In September 2015, Michigan was paying more for a course of treatment than any other state that answered the Yale survey. It treated roughly 100 inmates at the full list price for the first two drugs that hit the market, $84,000 per course of Sovaldi and $94,500 for Harvoni, according to Chris Gautz, a spokesperson for the Michigan Department of Corrections. The state has since negotiated discounts of 60 percent to 65 percent off.

It’s not easy for state prisons to negotiate drug prices. Three programs regulate how much the federal government pays for drugs, guaranteeing that it receives discounts for Medicaid, Medicare and the Veterans Health Administration. Federal prisons are entitled to discounted prices, but state prisons are excluded from many of the programs. In theory, there are ways for states to hook up with other health care providers to buy drugs at lower prices through a discount program known as 340B, but in practice, it’s a complicated process that isn’t easy to navigate. At the time of the first survey, just 16 states were working on getting discounts through 340B. Twenty-nine said they were trying to negotiate directly with the pharmaceutical companies (and some were doing both).

“The broader issue is that the U.S. has an incredible patchwork of drug pricing regulation, and [state] prisons are left out of it,” said Sean Dickson, a senior manager at the National Alliance of State and Territorial AIDS Directors who previously worked for a law firm that helped a major pharmaceutical company report its drug pricing data.

The Michigan DOC estimates that 10 percent of its inmates — about 4,400 people — have hepatitis C and has taken an aggressive stance on treatment in the past year. The department wants to set its own standards for who can get treatment before a lawsuit decides the standard for it, Gautz said. While some other states aren’t providing the new and expensive drugs to any inmates, the Michigan DOC decided to cover people who could in theory get the drugs from Medicaid if they weren’t incarcerated, which includes anyone with serious liver scarring.³ To date, they’ve treated roughly 400 people at a cost of $26 million, Gautz said. One-time funding from the state legislature is helping to treat the inmates who are currently eligible, about 600 people, but the Michigan DOC estimates that it will need about $7 million a year going forward to treat new inmates and current inmates with the disease whose health deteriorates.

Michigan says it isn’t treating everyone because not everyone with the hepatitis C virus will get sick from it. While 75 percent to 85 percent will develop a chronic infection, only 5 percent to 20 percent will develop severe liver damage, and 1 percent to 5 percent will ultimately die of liver failure or cancer, according to the Centers for Disease Control and Prevention.

Despite the huge price tag, treating nearly everyone with the virus has been deemed cost-effective and is what’s recommended by the American Association for the Study of Liver Diseases. That’s partly because it’s the best way to prevent others from being infected in the future, and, as I wrote last year, providing treatment in prisons is the only way to eliminate or drastically reduce the number of people with hepatitis C because it’s where many of the cases are concentrated. However, it would cost $33 billion just to treat all U.S. inmates with the virus, according to a 2014 estimate. That’s a lot of money that corrections departments don’t have. The study “gets to a moral societal question,” said Adam Beckman, lead author of the Yale paper. “What do we do when something is cost-effective, but we’d have to break our budget to spend on it?”

That question is particularly poignant in New Mexico, where the Corrections Department reported that 40 percent of its inmates had hepatitis C, the highest percentage of any state. Alex Sanchez, the deputy secretary of administration, points to the state’s long history with heroin addiction as the main cause. To date, the state has treated about 75 people, Sanchez said, and there has been a 100 percent cure rate. But by the Corrections Department’s estimates, it spends about $80,000 per week to treat an inmate. That cost includes much more than the drugs — things such as additional security, special meals and treatment for other underlying medical conditions — but from a budgetary standpoint, Sanchez says, those help make up the real cost to cure.

Like in Michigan, officials in New Mexico started treating prisoners before a court told them they had to, so they could do it on their terms. “Our goal is to treat people who need to be treated, but we have to be cognizant that this is taxpayer money. We don’t want to land ourselves in some kind of court decree that leaves taxpayers paying through the nose,” Sanchez said. “We have something like a 50 percent recidivism rate,” she said. “The likelihood that we’re going to treat everyone and be done with it? This is going to go on for a long time here.”

Yeh says the Pennsylvania class-action lawsuit is in the discovery phase until next month. After that, she will swap information with the Pennsylvania DOC, including data on how many inmates have the hepatitis C virus. Even without that information, it’s fairly clear that if Chimenti wins, the state will be on the hook for hundreds of millions of dollars.