Colorado’s Medicaid department was slapped with a federal class-action lawsuit Monday led by a Denver man denied treatment for the life-threatening hepatitis C virus because he has government insurance.
Robert Lee Cunningham, represented by ACLU Colorado, is among thousands of Coloradans denied access to a breakthrough drug with a 90-percent cure rate because under Medicaid policy, he “has not yet suffered measurable and potentially irreversible liver damage,” the lawsuit says.
Colorado covers the 12-week, $40,000 prescription only for people whose livers have reached stage two in scarring, on a scale of zero to four. Private insurance companies, however, cover the drug treatment for patients infected with the blood-borne virus, regardless of how far it’s advanced.
The Colorado Department of Health Care Policy and Financing, which runs the Medicaid program, was criticized in recent months by the ACLU and Denver Health Medical Center regarding the policy. Following the scrutiny and a recommendation from the state drug review board, the department expanded coverage Sept. 1 to allow people in the second stage of liver scarring to receive the drug. It previously required that patients had to reach stage 3 in order to get the prescription.
The new policy also expanded coverage to women who plan to become pregnant within the next year, and it loosened a previous restriction barring anyone who used alcohol or illegal drugs within the previous six months. Now people with a history of chronic substance abuse will have to enroll in drug treatment counseling at least one month before receiving the hepatitis C regime.
But that expansion didn’t go far enough, said ACLU of Colorado legal director Mark Silverstein. “We are challenging a policy that forces Coloradans who cannot afford private insurance to live with the serious negative health effects of hepatitis C and to wait for a cure, possibly for years, until they have suffered measurable and potentially irreversible liver damage,” he said.
Denying the drug to needy Coloradans who have Medicaid while others with private insurance have access is illegal and against federal and medical guidelines, the lawsuit says. Medicaid beneficiaries are “being unduly subjected to a second-class standard of health insurance coverage for the sole reason they are poor,” it says.
And allowing it for women who plan to get pregnant within a year raises questions about what proof doctors would require and whether it’s fair to ask women to consider pregnancy in order to get a potentially life-saving drug, say critics.
Cunningham, 61 and a construction worker with three children and five grandchildren, was diagnosed with the virus in 2004 and a biopsy found his liver is at stage one. The disease makes him feel exhausted, and his muscles and joints — especially his knees — ache, he told the Denver Post. “The exhaustion and the pain make it hard for me to work and to live, but I have to work to make a living,” he said.
Cunningham tries to keep his liver healthy by avoiding fried foods and alcohol, and has often has to assuage the fears of family members and new people he meets about how the disease is spread (through blood, mostly needles and transfusions). “It is very stressful because I don’t know when the disease is going to take off and progress and that makes me feel anxious all the time,” he said. “If the disease progresses to another level and it’s irreversible, that is really stressful for me. I feel like I’m walking on a tightrope all the time where at any minute something bad could happen.”
The lawsuit, which names Susan Birch, health care policy and financing executive director, seeks a permanent injunction barring the state from denying access to new antiviral medications. Before these new drugs began arriving on the market in 2013, the best treatment option included toxic injections that went on for a year, had an estimated cure rate of only 50 percent and came with debilitating side effects.
State officials have called their updated policy “reasonable” and based on clinical data that some people with hepatitis C never advance beyond stage one. Medicaid officials were aware of the lawsuit but would not comment on pending litigation, department spokesman Marc Williams said.
The state counts 14,400 Coloradans with Medicaid who are infected with the blood-borne virus. An estimated 70 percent of those have liver disease at stage two or higher. So far, Colorado’s Medicaid department has treated 413 people with the drug at a cost of $35.8 million, not including the undisclosed rebates it receives from drug companies.
Hepatitis C is the most deadly infectious disease in the United States, according to the Centers for Disease Control and Prevention.
