State Looks To Speed Up Prison Hepatitis Decision

TALLAHASSEE --- With lawmakers facing the possibility of spending $28 million to address the issue, the Florida Department of Corrections wants a federal appeals court to rule this summer in a long-running dispute about treating inmates for hepatitis C.

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The department has asked the 11th U.S. Circuit Court of Appeals to decide by Sept. 8 whether to overturn a district judge’s order that requires the state to provide expensive treatment to inmates who have been diagnosed with early stages of hepatitis C.

In a budget passed last month, lawmakers set aside $28 million in reserves to pay for treating the inmates if needed. Fine print in the budget also says the department could request the release of the money “if needed to respond to a pandemic in the prison system” ---- a potential issue that has drawn widespread attention as at least two inmates and 26 corrections employees have tested positive for COVID-19, the highly contagious respiratory disease caused by the coronavirus.

The Atlanta-based appeals court is scheduled to hold arguments the week of June 8 in the state’s appeal of U.S. District Judge Mark Walker’s ruling in the hepatitis C case. In a request for “expedited consideration,” filed March 23, state attorneys said they would need to meet an April 2021 deadline to carry out Walker’s order.

As a result, they said they want to be able, if necessary, to request release of the money in September from the Joint Legislative Budget Commission, a panel made up of House and Senate members that can make mid-year budget decisions.

“As is most relevant to this appeal, the Florida Department of Corrections must, by April 18, 2021, realign the treatment priorities of its medical staff and acquire new and expensive medication for early-stage Hepatitis C

positive inmates,” the request said. “In the secretary’s (Corrections Secretary Mark Inch’s) view, administering this

treatment to early-stage Hepatitis C-positive inmates is not medically necessary. In order to meet the district court’s April 18, 2021 deadline, the Florida Department of Corrections must begin taking steps to obtain funding from the Florida Legislature by September 2020, which is when the Legislative Budget Commission is likely to meet.”

While September is three months after the oral arguments, the appeals court can --- and often does --- take far longer to issue rulings.

The case centers on the use of an expensive type of medication known as “direct acting anti-virals” to treat hepatitis C, a contagious liver disease that can be fatal. Walker ruled last year that the medication should be provided to all inmates with hepatitis C,

The state does not dispute that direct acting anti-virals should be provided to inmates with later stages of hepatitis C. But the Department of Corrections, contends that it would not violate prisoners’ constitutional rights if it did not provide the medication to prisoners in the early stages.

“The new treatment, direct acting anti-virals, can be lifesaving for those suffering from moderate-to-severe hepatitis C,” a state brief filed in August said. “By contrast, medical studies have not established that DAAs (direct acting anti-virals) materially improve the mortality rate or quality of life for those diagnosed with early stage hepatitis C. Instead, adequate care for those individuals involves monitoring the disease’s progression and administering DAAs if it becomes medically necessary.”

But attorneys for inmates responded in an October brief by saying the department has resisted providing the treatment for financial reasons, violating the Eighth Amendment ban on cruel and unusual punishment.

“The Eighth Amendment requires prison officials to provide medical treatment that avoids serious consequences, not simply treat them after a prisoner becomes dangerously ill,” the brief said.