Make no mistake about it: governments can provide health care to their citizens. In America, our state and federal governments must be made to do so.
On this World Hepatitis C Day, we can reflect on how more than a dozen Hepatitis C class action lawsuits across the country, including the one we filed against the Connecticut Department of Correction demanding testing and treatment of prisoners – have saved thousands of lives and made state governments provide health care to a neglected segment of the population.
HCV is a blood-born pathogen, transmitted by needles and sex. Prisons, filled with criminalized addicts, are ground zero for HCV. Prisoners have long sued over HCV treatment, but in 2013, a revolutionary new class of drugs called direct-acting antivirals, known as DAAs, altered the landscape overnight.
DAAs were expensive – sometimes $80,000 for one eight-week course of treatment to cure one person. Even though DAAs now are cheaper than the state paying for a liver transplant in five years, and despite being the standard of care, correctional systems avoided providing them.
DOC had set up a roadblock called the Hepatitis C utilization review board that ration care until late approval of treatments the DOC wasn’t even texting everyone for it in the three years from 2015 to 2018 the DOC and cured less than 80 people.
In 2014, Pennsylvania’s celebrated death row inmate Mumia Abu-Jamal appears to have been one of the first people to win a federal injunction granting him access to DAAs.
Lawyers in the Keystone State followed with a class action, and the wave spread to Massachusetts, Missouri, Florida, Minnesota, California and Colorado.
California and Colorado settled their cases when the case was filed. The Pennsylvania DOC fought it. Massachusetts dragged its case out for years. The state of Missouri appealed to the Eighth Circuit twice.
But access to DAAs always won.
Here in Connecticut, we were the 11th state to file when we did so in July, 2018.
Robert Barfield, a West Coast guy doing Nevada time here at Corrigan–Radgowski in Uncasville, asked repeatedly in writing for access to DHS from 2014 to 2018. DOC denied him. Too expensive, he was told, Not necessary. He filed a habeas, and he found us.
Barfield’s paper trail created the basis for our lawsuit. At first, Attorney General William Tong’s office tried to dismiss the case.
Within six months, Tong’s lawyers produced medical documents showing the DOC approved DAAs for Mr. Barfield, the “newspaper case.” He was cured before the court could adjudicate his claims.
We added more plaintiffs. DOC cured them too. District Court Judge Michael Shea, an Obama nominee, saw through the DOCs attempt to pick off class representatives and granted us class certification and said Barfield was the representative.
A class has a life of its own. To avoid liability, the same day Judge Shea issued his ruling in August 2019, the DOC announced a policy change to test and treat everyone.
A settlement mandating treatment and opt out testing was negotiated. Testimony to the General Assembly in January 2021 estimated the cost of the two-year settlement $40 million, and the legislature approved the agreement.
For those keeping track, that is about the cost of operating the maximum-security facility Northern Correctional Institution, which has been plagued by lawsuits claiming cruel and unusual punishments.
When Gov. Ned Lamont announced the closure of Northern this year, it wasn’t difficult to see a correlation: paying for health care means closing prisons.
While a mistake in the settlement agreement language granting DOC too broad a release has forced the sides back to the negotiating table, the DOC continues to act as if the settlement remains in place.
On June 30, the Connecticut DOC reported to Judge Shea that it had cured 776 people so far. That’s 776 people who will return to their families without the burden of HCV. That’s 776 people who will live and love longer, and get another chance at life without a fatal disease.
These same reports estimate another 500 people in custody still have HCV and need treatment. We expect to come close to that number when the settlement sunsets in March 2022.
It felt good to write a letter to the Nevada Board of Pardons and Paroles on behalf of Mr. Barfield for his early release. His advocacy has cured enough people to fill Hartford Stage and Theatreworks and Real Art Ways simultaneously. He appears to have won that, and hopefully will be released by the end of the year.
Our front row seat in Barfield v. Quiros has also shown us how the state will fight, argue there is no claim, pay for legal experts instead of treatment, delay, deny, delay and then when there is no other option, the state will do the right thing.
Please do not be naïve, though: while curing HCV is the moral thing, it is fair to suggest that the DOC changed its policy and mooted our case to prevent a federal judge from having oversight into the daily operations of our prison system.
It does not have to be this way. We can live in a place that provides health care to everyone as a policy choice, and we can do so by starting with our most vulnerable brothers and sisters. We need leaders who recognize this and act accordingly.
Another world is possible, and the HCV litigation gives us insight into how to make it happen.
Ken Krayeske and DeVaughn Ward are attorneys in Hartford.
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